Supreme Court Weighs Scope of VPPA’s “Consumer” Definition

On October 14, the Supreme Court held oral argument in Salazar v. Paramount Global, d/b/a 247Sports, No. 25-459. The case arises under the Video Privacy Protection Act (VPPA), which makes a “video tape service provider” liable when it knowingly discloses “personally identifiable information” concerning any “consumer” of that provider.

Salazar’s theory is that by deploying the Meta Pixel tracker for online videos, Paramount systematically discloses its users’ personally identifiable information to Facebook without consent every time someone watches a video on Paramount’s website. Meta Pixel technology can track a user’s actions and transmit that information to Meta. In this case, Salazar was logged into his Facebook account, which facilitated the transmission. Paramount answered that Salazar is not a “consumer” as that term is defined in the VPPA because he subscribed to a free newsletter, not a video. The issue before the Court is whether the phrase “goods or services” in the definition of “consumer” covers any goods or services from a video tape service provider, or only audiovisual ones. The circuits are split 2-2 on that question.

Salazar argued that Congress imposed audiovisual limits where it intended them. Those limits appear in the definitions of “video tape service provider” and “personally identifiable information,” but not in the definition of “consumer.” Salazar described “material variations” across the three definitions, each addressing a different subject matter that can come from a video tape service provider. He also pointed out that the statute’s advertising exception uses the phrase “goods and services,” and argued that Paramount’s reading would give those two nearly identical phrases different meanings. Finally, Salazar emphasized that providers can readily avoid liability by obtaining consumers’ consent.

Paramount countered that “goods or services” is modified in the statute: the phrase takes its meaning from the surrounding words, including “from a video tape service provider.” “Video tape service provider” is a defined term tied to prerecorded video cassette tapes or similar audiovisual materials. Just as goods or services “from a medical service provider” would not generally be understood to include a cup of coffee or valet parking, Paramount argued, goods or services from a video tape service provider do not include “chicken sandwiches or dog bandanas.” Paramount warned that Salazar’s reading would create an army of VPPA consumers with nothing to protect until they someday watch a free video, possibly years later. Paramount also estimated that the putative class in this case alone carries $250 million in potential liability.

The bench appeared divided. Justice Kagan seemed the most receptive to Salazar’s textual argument. She observed that the “consumer” definition lacks the audiovisual modifier found in the other definitions and suggested that the “from” clause indicates only the source of the goods or services. Justice Jackson posed a hypothetical in which Justice Breyer buys a book about French films at a video store and then previews several films there, questioning why Congress would care what he purchased if his viewing history is disclosed. Justice Sotomayor noted that the VPPA itself contemplates personally identifiable information existing apart from any consumer, which undercuts Paramount’s premise that the consumer transaction must be the one that generates that information.

Other justices appeared more skeptical of Salazar’s position. Justice Alito stressed that the statute is “based on the technology of the 1980s” and emphasized that lower courts have “routinely dismissed” VPPA claims. Justice Thomas likewise focused on the context in which the statute was enacted, suggesting that streaming may be closer to cable television—which also existed when the VPPA was enacted in 1988 but is not covered by the statute—than to video rental. Chief Justice Roberts asked Salazar’s counsel whether the Court must consider the statute’s general purpose before determining whether the statute reaches as far as Petitioner contends. Justice Kavanaugh voiced concern about “repurposing” a statute aimed at public disclosure of what individuals watched into a regulation of data sharing for targeted advertising.

Ultimately, the questioning suggested that the case is close but that Petitioner may have the edge on the narrow textual question. Justices Kagan, Jackson, and Sotomayor appeared receptive to his reading. Despite his concerns, Justice Kavanaugh appeared open to resolving the “consumer” question on the text while leaving the broader issues for another day. Justices Alito and Thomas seemed more likely to side with Paramount.

In any event, the Court’s ruling is likely to have significant implications. If the Court adopts a broad reading of “goods or services,” businesses that offer videos alongside other offerings—such as newsletters, loyalty programs, and other non-video content—may face exposure to substantial VPPA class action liability. A narrow reading, by contrast, would likely keep the VPPA’s scope closer to the technology it was originally intended to regulate.

Whichever way the Court rules, several other VPPA definitions will remain unresolved. Notably, the circuits are split 3-1 on the definition of “personally identifiable information,” a term Paramount also disputes in this case. Even if the Court expands the definition of “consumer,” future rulings on other VPPA definitions may have even greater implications for the litigation risk facing businesses that provide audiovisual content.

Senior Law Clerk Topher Kittilson also contributed to this article.