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In 2022, college sports fan Michael Salazar became a digital subscriber to 247Sports.com, a website that shares news about NCAA football and basketball. In order to register for the website, owned by Paramount Global, Salazar signed up for 247Sports’ online newsletter. And he used his subscription to view sports-related video media. Quietly embedded within those videos, though, was a tracking pixel created by Facebook.
Because Paramount installed Facebook’s tracking pixel on the 247Sports website, every time Salazar requested or viewed a video, Paramount automatically disclosed the name and URL of the video to Facebook, along with Salazar’s Facebook ID, the unique identifier Facebook assigns to all of its users. Facebook then used that information to show Salazar targeted advertisements.
Privacy violations like this have become a routine part of life on the internet. According to a 2024 study on website privacy, more than half of all companies listed in the S&P 500 index use the “Meta pixel” on their sites, sharing people’s information with both Facebook and Instagram. But in theory, there are at least some legal boundaries.
Video from Slate
Back in 1988, after a D.C. journalist obtained and published a list of movies rented by Supreme Court nominee Robert Bork, a scandalized Congress passed the Video Privacy Protection Act. To be clear: Congress was scandalized by the nonconsensual disclosure of Bork’s rental history, not the judge’s viewing habits, which were pretty unremarkable (unlike those of another judicial nominee who would be confirmed to the Supreme Court a few years later.)
The VPPA prohibits videotape service providers from knowingly disclosing the personally identifiable information of consumers, unless they get the consumers’ written consent. The statute defines “videotape service provider” to include any person in the business of delivering “prerecorded video cassette tapes or similar audio visual materials.” And the definition of “consumer” includes any “subscriber of goods or services” from the provider.
Here, Salazar subscribed to Paramount’s sports website. He requested audiovisual materials from Paramount, and Paramount delivered them. And then Paramount knowingly disclosed what he watched to Facebook without getting his consent. In September 2022, Salazar filed a class-action lawsuit, arguing that Paramount violated the VPPA.
But in July 2023, the federal district court dismissed his complaint, reasoning that Salazar didn’t count as a “consumer” under the statute because he was only subscribed to a newsletter, “not audio visual content.” Salazar appealed to the 6th U.S. Circuit Court of Appeals, but in April 2025, a divided three-judge panel affirmed the dismissal, agreeing with the district court that Salazar’s newsletter subscription didn’t make him a subscriber under the law. Then Salazar appealed to the Supreme Court, which heard oral arguments in Salazar v. Paramount on Wednesday.
Under the plain text of the Video Privacy Protection Act, Salazar should be able to hold Paramount liable for its disclosure of his video history. But during the oral arguments, the Republican-nominated justices peppered Salazar’s attorney with questions suggesting that imposing an atextual limitation onto the statute—one that would conveniently insulate corporations from legal liability when they intrude on consumers’ privacy for profit—was really just the commonsense thing to do. “Wouldn’t it be natural to think that goods or services from a videotape service provider would be video-related services?” asked Justice Clarence Thomas. Later in the oral argument, Thomas said he “always thought of 247Sports as a sports site,” and he questioned the “logic” of viewing the site as a “videotape service provider.”
Justice Samuel Alito further argued that the law was “based on the technology of the 1980s,” when people had to “go to a Blockbuster store and get a VHS tape.” Although the text of the VPPA appears to cover Salazar’s claims, Alito suggested that a newsletter subscription isn’t analogous enough to what Congress had in mind and asked Salazar’s counsel why he thought the “smart lower court judges” who ruled against him rejected his “very literal interpretation” of the statute. Justice Brett Kavanaugh echoed these concerns: “We are a textualist Court but usually not a literalist Court,” he said. Kavanaugh continued, “Congress in the 1980s wasn’t thinking about data sharing for targeted advertising.”
Kavanaugh and Justice Amy Coney Barrett also worried that, if the VPPA weren’t limited to the long-defunct Blockbusters of the world, practically any business could find themselves liable under the law. Kavanaugh brought up concerns, raised by corporate interest groups in amicus briefs, that “every business in America that has video on its website” could be targeted. Trying to suss out the scope of the statute, Kavanaugh and Barrett both asked how long a video must be for a company to count as a video service provider. Salazar’s attorney indicated that length wasn’t especially relevant and shifted the conversation to the business and profit motive of delivering videos, but Barrett was skeptical. “If I’m on Nordstrom’s website and I click to see the model show me what the shoes are going to look like,” said Barrett, “that’s a profit motive.”
For all the Republican justices’ stated concern on Wednesday about reading and interpreting the VPPA in a way that makes sense, they failed to meaningfully engage with the text and context. Paramount provided Salazar with videos and then told Facebook what videos he watched without his consent—the exact kind of injury contemplated by the statute. Technology and commerce have obviously changed considerably since Congress passed the Video Privacy Protection Act. But the law’s commitment to protecting the privacy of video consumers has not. What has changed, however, is the ideological commitments of the people who sit on the court.