In a 1987 article for the weekly Washington City Paper, journalist Michael Dolan published a list of the videos that Judge Robert Bork, then President Ronald Reagan’s nominee to fill a vacancy on the Supreme Court, had rented from his local video store. As Dolan later recounted, Bork’s taste in movies was unremarkable. He enjoyed “whodunits and Brit films, costume drama and otherwise.” But the disclosure of Bork’s video-viewing habits sparked outrage, and it prompted 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.” On Wednesday, in Salazar v. Paramount Global, the Supreme Court will hear oral argument in a case that asks the justices to decide whether and how the VPPA applies in the internet era.
The lawsuit before the court next week was filed by Michael Salazar. In 2022, Salazar subscribed to an email newsletter distributed by 247Sports.com, a Paramount-owned website that covers college sports recruiting. Salazar says that while he was logged into his Facebook account, he watched videos on the 247Sports.com site. Using a code known as a Pixel that it had installed on 247Sports.com, and without Salazar’s consent, Paramount then provided Facebook with information about the videos that Salazar had watched on the site.
Salazar went to federal court in Nashville, Tennessee, where he sought to bring a class action lawsuit alleging that Paramount’s disclosure of his video-viewing history without his consent violated the VPPA. He asked the court to award him $2,500 in damages (the maximum available under the law) for the alleged violation of the VPPA in his case, and the same penalty for other members of the class, as well as (among other things) punitive damages and attorney’s fees.
U.S. District Judge Eli Richardson threw out 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.’” Because the 247Sports.com newsletter was not “audio-visual content,” Richardson reasoned, Salazar could not be a “subscriber.”
A divided U.S. Court of Appeals for the 6th Circuit upheld Richardson’s ruling. Writing for the majority, Judge John Nalbandian framed the question before the court as “what ‘goods or services’ a person must rent, purchase, or subscribe to in order to qualify as a ‘consumer’ under the” VPPA. “Is ‘goods or services’ limited to audio-visual content—or does it extend to any and all products or services that a store could provide?”
The majority adopted the more limited reading. Nalbandian wrote that although, on its own, “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, seeking review of the 6th Circuit’s decision, and the justices agreed in late January to hear his case.
In his brief on the merits, Salazar portrays the case as a straightforward one: Paramount is a “video tape service provider,” he “subscribed to Paramount’s online newsletter, which he used to view videos,” and Paramount then disclosed “personally identifiable information” – Salazar’s Facebook ID and video-viewing history – to Facebook, in violation of the VPPA.
The 6th Circuit’s contrary conclusion, Salazar argues, “rewrote the law.” The VPPA, he writes, defines the term “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” That definition, he stresses, therefore limits “the source of the goods or services” – that is, providers of video tape services. “But it contains no limitation on the type of goods or services involved.” Instead, he contends, the phrase “goods or services” “covers everything a video tape service provider offers.”
As an example, Salazar points to the lone remaining Blockbuster video store in Bend, Oregon. That store, he notes, rents movies but also “sells candles, sunglasses, posters, and even dog bandanas. In everyday speech,” he says, “a person who bought any of those items would be described as Blockbuster’s ‘consumer.’”
Salazar emphasizes that elsewhere in the VPPA Congress did limit the scope of its definitions to audio-visual materials – for example, the statute defines “personally identifiable information” as “information that ‘identifies a person as having requested or obtained specific video materials or services from a video tape service provider.’” This shows, he said, that “Congress knew how to impose” such restrictions “when it wanted to do so.” But it failed to do so for “goods and services,” he tells the justices. The Supreme Court’s “guidance has been consistent,” he concludes. “When interpreting a statutory provision, a court must be careful not to add words, impose requirements untethered to enacted text, or import materially different language from elsewhere.”
Paramount urges the justices to leave the 6th Circuit’s ruling in place. It first stresses the purpose of the VPPA, emphasizing that Congress enacted the law in response to the disclosure of Bork’s video-rental records and to “address[] the distinct privacy concerns with the unauthorized disclosure of video rental history.” “No one,” Paramount suggests, “cared about Judge Bork’s purchases of bandanas or recliners.” “Salazar’s contrary reading,” Paramount argues, “would transform a 1988 video-rental statute into an unworkable internet-privacy regime of broad yet incoherent scope backed by harsh penalties.”
The relationship between the harm that the VPPA seeks to prevent and the conduct that it targets is reflected in the text of the VPPA, Paramount continues. Consumers who buy other materials besides videos, Paramount says, “do not themselves generate PII for disclosure or consent,” because the VPPA limits “personally identifiable information” to “video materials or services from a video tape service provider.” “So as a matter of common sense and ordinary English,” Paramount writes, “a consumer of ‘goods or services from a video tape service provider’ means a consumer of the audiovisual goods or services that make the business a video provider and that generate PII. A person must transact for videos, not bandanas, recliners, or other non-video merchandise.”
Paramount tells the justices that, as a mechanism to prohibit the disclosure of video-rental records, the VPPA has been highly effective. However, it argues, lawsuits like Salazar’s are part of a broader new effort by “class-action lawyers, lured by the VPPA’s promise of statutory and punitive damages, … to repurpose the statute to target unsuspecting companies for routine business practices” that have “nothing to do with video stores, video rentals, or the distinct privacy concerns with video-transaction records.” Instead, the company contends, such lawsuits are based on the premise “that people become VPPA ‘consumers’ whenever they buy any item, at any time, from any business that later posts videos online.” Indeed, the company alleges, if Salazar prevails, “any company that provides video content, even without any rental, purchase, or subscription—which is to say virtually any company with a website—could face potentially ruinous class-action liability just for engaging in ‘commonplace computer activity.’”