The Supreme Court on Wednesday seemed likely to let a lawsuit brought by a Tennessee man alleging that a website owned by entertainment giant Paramount Global violated a 1988 video privacy law when it shared information with Facebook go forward, at least for now. After nearly 90 minutes of oral argument in Salazar v. Paramount Global, the justices appeared poised to agree with Michael Salazar that the law, the Video Privacy Protection Act, applies to any consumer of the products sold by a company that provides videos. Although some members of the court expressed concerns about the possibility that allowing Salazar’s suit to proceed could open the door to lawsuits against a broad swath of U.S. companies, those concerns appeared to be assuaged in part by the prospect that other provisions of the law could serve as a check on such suits. Moreover, some justices suggested that companies could easily avoid suits in the future by obtaining their customers’ consent to share their personal information.
The law before the court on Wednesday has its origins in the 1987 battle over the nomination of Judge Robert Bork to fill the vacancy left by the retirement of Justice Lewis Powell from the Supreme Court. A Washington journalist, Michael Dolan, obtained and published a list of the videos that Bork had rented from his local video store.
Bork’s nomination failed, with 58 senators voting against him and only 42 for him. That likely had little to do with his taste in movies, which included (as Dolan later recounted) “whodunits and Brit films, costume drama and otherwise.” But Dolan’s article spurred Congress to enact the Video Privacy Protection Act, which bars a “video tape service provider” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.”
In 2022, Salazar subscribed to an email newsletter distributed by 247Sports.com, a Paramount-owned website that covers college sports recruiting. Salazar says that he watched videos on the 247Sports.com site while he was logged into his Facebook account. Paramount, he says, then used a code known as a Pixel that it had installed – without Salazar’s consent – on 247Sports.com to provide Facebook with information about the videos that Salazar had watched on the site.
Salazar filed a class-action lawsuit in federal court in Nashville, Tennessee, alleging that Paramount’s disclosure of his video-viewing history without his consent violated the VPPA. He asked the court to award $2,500 in damages (the maximum available under the law) for the alleged violation of the VPPA to him and the other members of the class, as well as (among other things) punitive damages and attorney’s fees.
U.S. District Judge Eli Richardson dismissed Salazar’s case. He ruled that, for purposes of the VPPA, Salazar was not a “consumer,” because a “consumer” must be “‘a subscriber of goods and services in the nature of audio-visual content.’” Salazar could not be a “subscriber,” he wrote, because the 247Sports.com newsletter was not “audio-visual content.”
A divided U.S. Court of Appeals for the 6th Circuit upheld that ruling. Writing for the majority, Judge John Nalbandian wrote that although, standing alone, “the expression ‘goods or services’ is not limited, its association with surrounding words cabins its meaning. The full definition of ‘consumer’ in the statute does not encompass consumers of all ‘goods or services’ imaginable, but only those ‘from a video tape service provider.’”
Salazar came to the Supreme Court last fall, asking the justices to weigh in, which they agreed in late January to do.
On the one hand, although the question was not actually before them, some justices were skeptical that Paramount Global fell within the definition of “video tape service provider” at all. Justice Clarence Thomas was the first to make this point. He told Joshua Hammack, who represents Salazar, that the statute only applies to an entity that rents, sells, or delivers “prerecorded video cassette tapes or similar audiovisual materials.” How, Thomas asked, would that extend to videos streamed over the internet?
When Hammack countered that the law does not require a tangible object, but instead also covers videos that someone plays on their phone or at their house, Thomas suggested that streaming a movie on TV might be closer to traditional television (which is not covered by the VPPA) than picking a video up from a movie rental store.
Thomas made the same point with Paul Clement, who represents Paramount Global, asking how 247Sports.com qualifies as a video tape service provider. It does not naturally seem, Thomas said, to be in the business of providing videos.
But Clement also indicated that the definition of “video tape service provider” sweeps more broadly than companies whose sole business is selling or renting video tapes. When Congress enacted the VPPA, he noted, it “did make it pretty clear” that a department store that sold videos would be considered a video tape service provider.
Justice Amy Coney Barrett echoed Thomas’ question, asking Hammack why the videos that 247Sports.com played on its site made it analogous to a 1980s-era movie-rental store and therefore a “video tape service provider.” She appeared unpersuaded by Hammack’s contention that when 247Sports.com plays videos on its site, it has a “profit motive,” telling him that “basically every other business” with a website has a profit motive. “[I]f I’m on Nordstrom’s website,” she said, “and I click to … see the model show me what the shoes are going to look like … that’s a profit motive.”
Justice Samuel Alito also appeared doubtful at times that Paramount Global was a “video tape service provider,” telling Hammack that the VPPA was a “law that is based on the technology of the 1980s.” He questioned whether Paramount was selling or renting videotapes, and what it meant for a product to be “similar” to videotapes. “[I]t is not similar,” he noted, “in the sense that you go to a Blockbuster store and get a VHS tape.”
Chief Justice John Roberts, who was relatively quiet during Wednesday’s argument, suggested that Salazar’s interpretation of the VPPA was inconsistent with Congress’ goal of protecting a consumer’s video-viewing history. He harkened back to what he described as a favorite hypothetical of retired Justice Stephen Breyer, involving a sign that proclaims “no pets in a park.” Does that mean, Roberts queried, that someone who has a pet snail in his pocket can be prosecuted, or does it mean that we should look at the purpose of the rule?
Justice Brett Kavanaugh pressed both lawyers on a key argument made by Paramount Global: whether allowing Salazar’s lawsuit to move forward would open the floodgates to lawsuits against all kinds of businesses that stream videos on their websites.
Hammack stressed that federal trial courts have ruled that businesses such as, say, Chick-fil-A are not “video tape service providers” and therefore not subject to suit under the VPPA.
That response prompted Kavanaugh to ask Clement how the court should think about what Kavanaugh characterized as the “sky-is-falling concern” when Paramount Global could still prevail on two separate questions that are not actually before the court – what constitutes a “video tape service provider” and whether the kind of information that Paramount disclosed to Facebook qualifies as “personal identifiable information.”
Kavanaugh then suggested that a “very easy solution” to the problem facing Paramount Global and other similarly situated companies would simply be to obtain their customers’ consent before disclosing any information obtained from them.
Justice Elena Kagan made the same point, telling Clement that a company could avoid liability under the VPPA in two ways: first, by getting consent; and, second, by ceasing the practice of selling people’s personal information.
Kagan also indicated that, in her view, this case was precisely the kind of case that Congress intended to cover in the VPPA. She described a scenario in which a judge watched many videos of women wrestling on a sports website like 247Sports.com, with the potential for embarrassment if that video-viewing history were disclosed. “[C]ouldn’t this case kind of be the paradigmatic” example, she asked, of a case to which the VPPA would apply?
Justice Ketanji Brown Jackson appeared sympathetic to Salazar’s position. She told Clement that he had “a line-drawing problem.” The point of the VPPA, she said, “was the unlawful disclosure without consent of personally identifying information.” But under Paramount Global’s interpretation, she continued, the application of the statute would hinge on “what particular item the consumer purchased” from the video tape service provider. “And I don’t understand why that should be the dividing line or why that makes any sense in this concept.”
Barrett also questioned whether Salazar has a legal right to sue, known as standing. She emphasized that Salazar’s information had not actually been disclosed to a person, no matter “what this Pixel thing is.”
Hammack pushed back, responding that Salazar’s video-viewing history had gone to Facebook, the world’s largest social-media company.
Barrett raised the question again with Clement, asking whether Paramount Global conceded that Salazar has a right to sue.
Characterizing the information that had been disclosed to Facebook as “gobbledegook,” Clement offered to provide additional briefing on the question of whether Salazar could bring his lawsuit at all.
A decision in the case is expected sometime next year.