Supreme Court takes up 1988 video privacy law's Internet scope

Justices to weigh whether newsletter subscriber qualifies as VPPA ‘consumer’

The U.S. Supreme Court has agreed to decide whether the nearly four-decade-old Video Privacy Protection Act carries over into the Internet age, taking up a case built around a Paramount-owned sports newsletter and the question of whether subscribing to it makes a reader a “consumer” under the statute.

Michael Salazar sued Paramount Global in 2022, alleging that 247Sports.com tracked his viewing data and shared it with third parties for targeted advertising without his consent.

The Video Privacy Protection Act defines a “consumer” as “any renter, purchaser or subscriber of goods or services from a video tape service provider.” A federal judge in Tennessee dismissed the suit after ruling that a newsletter subscription was not “audio visual materials.” The 6th U.S. Circuit Court of Appeals affirmed.

Salazar then asked the justices to weigh in. His lawyer, Joshua Hammack, wrote in a brief that “there is simply no basis to rewrite the VPPA’s definition of ‘consumer’ to impose a limitation that appears nowhere in the text.”

Lawyers for Paramount countered that adopting Salazar’s reading would extend the statute far beyond video. “Salazar’s contrary reading would transform a 1988 video-rental statute into an unworkable Internet-privacy regime of broad, yet incoherent, scope backed by harsh penalties,” the company’s brief said. The company also warned that “statutory protection for viewers of free video content would turn on the happenstance of where they purchased a chicken sandwich or recliner years earlier.”

The Video Privacy Protection Act was enacted in 1988 after a Washington journalist published the video-rental records of Robert Bork, then a Supreme Court nominee. Bork’s nomination failed for other reasons, but the disclosure prompted Congress to pass the VPPA.

Congress amended the law in 2013 to allow consumers to authorize disclosures through written consent. The statute now permits damages of up to $2,500 per consumer.

A decision is expected by next summer.