The Supreme Court justices laughed at a lawyer’s answer during arguments in the case Salazar v. Paramount Global, which could have consequences for digital privacy litigation.
The case deals with the Video Privacy Protection Act of 1988, a law that was intended to protect consumers’ personal information. The Court has been asked in this case to consider how the law applies in a more modern, digital landscape.
The Court heard arguments in the case on Wednesday.
The case was brought by Michael Salazar, who argues that Paramount violated the law by disclosing the history of videos he has watched on its website 247Sports.com to Facebook without his consent, citing the 1988 law that prohibited video providers from disclosing a person’s personal identification information and viewing information without their consent. Salazar has been involved in a similar case with the NBA.
Paramount, however, has argued that Salazar does not qualify as a protected consumer because he subscribed to a newsletter, rather than to a video service specifically.
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Paul Clement, an attorney for Paramount Global, provided several hypotheticals. Chick-fil-A, for example, may have videos on its website but would not be considered to be in the business of providing video services.
“That's not what the website is mostly about. But if you go to the website, the first thing you'll see is like a video starts playing. You don't even have to click on anything, it just starts playing,” he said. “And that's the way that most websites work these days.”
Chief Justice John Roberts, however, pressed him on the hypotheticals he raised.
“You’ve picked some hypotheticals that are particularly helpful for you, Chick-fil-A. You don't think of that if it's anything other than chicken. But there are a lot of stores that sell a lot of different things, including the type of videos that we're talking about. So I don't know why we should focus just on the easy hypotheticals,” Roberts said.
Clement’s response drew laughter from the justices.
He said it is his “job to focus on” the easier hypotheticals, prompting laughter.
Roberts responded that he would think that his job is “to focus on the hard ones, at least for me.”
“Your job is to direct to the harder hypotheticals. But I'm not sure there really are that many hard hypotheticals in the sense that we're not taking the position that if you actually are in the business, you are a videotape service provider, that because you do lots of other things or the rest, that you're not covered,” Clement said.
Newsweek reached out to lawyers for both Paramount and Salazar for comment via email.
Paramount Supreme Court Case Explained
Salazar alleged that 247Sports.com violated the VPPA by disclosing “personally identifiable information to Facebook without consent,” according to court filings. He obtained a subscription to the website by signing up for its newsletter and then used the subscription to watch videos on the website while logged into his Facebook profile.
Facebook then allegedly used the information to create and display targeted advertisements for Salazar.
A lower court sided with Paramount, ruling that Salazar needed to subscribe specifically to audiovisual materials and that the newsletter did not meet that standard since he did not say he accessed audiovisual content through the newsletter.
Other courts, however, have found “on virtually identical facts” that a subscription to a newsletter from a video tape service provider does in fact make one a “consumer,” his lawyers argued.
The Question Dividing the Court
The specific question the Court has been asked to define is whether the phrase “goods or services from a video tape service provider” as used in the VPPA’s definition of a “consumer” refers to all of the provider’s goods and services, or only its audiovisual goods or services.
Supreme Court Arguments Explained
During the arguments on Wednesday, Clement argued that the plaintiff is trying to “repurpose the statute” to allow it to apply to individuals who have never rented, purchased or subscribed to a video.
“Just as one when referring to goods or services from a medical service provider, would not logically refer to a cup of coffee or valet parking when one refers to goods or services from a videotape service provider, one does not logically refer to chicken sandwiches or dog bandanas,” he said.
Joshua Hammack, an attorney for Salazar, said Paramount is asking the Supreme Court to narrow the law by “imposing an audiovisual limitation on the phrase goods or services in the definition of consumer.”
“But Congress put audiovisual limitations where it wanted them, and the definitions of both videotape service provider and personally identifiable information not in the definition of consumer. That choice is dispositive,” he said.
He said he does not believe that any website with a video on its website is considered a video service provider. In this case, it is his position that the website is “absolutely” a video tape service.
“It’s not everyone who happens to deliver them. It's not everyone who provides a video once. You have to be engaged in that business,” he said.
What Is the Video Privacy Protection Act of 1988?
The Blockbuster-era law was passed nearly 40 years ago, after a video rental store clerk provided a journalist with a list of 146 movies rented by Supreme Court nominee Robert Bork and his family during his confirmation hearings.
Bork was appointed to the High Court by former President Ronald Reagan. The Senate ultimately rejected his nomination for reasons tied to his judicial philosophy and conservative approach. The video-rental disclosure was more of a sideshow that had no major impact on his nomination.
However, bipartisan outrage over the publishing of the list led to the passage of the VPPA.
What Happens Next
The Court’s justices will now work to craft a ruling on the Salazar case. A ruling is expected by the end of the Court’s current term, likely no later than June 2027. The Supreme Court will continue to hear major cases with critical implications for the Second Amendment, voting rights and climate change lawsuits over the remainder of its new term.
This article includes reporting by the Associated Press.
Contact Newsweek editors on this story: Gray R. Thomas