U.S. Supreme Court to Define “Consumer” under the Video Privacy Protection Act and Potentially Expand Business Risk

The Video Privacy Protection Act (“VPPA”), an infrequently litigated statute, may soon become a major source of consumer protection litigation. The U.S. Supreme Court may determine this trajectory when it defines “consumer” under the VPPA in  Michael Salazar v. Paramount Global, dba 247Sports. With minimum statutory damages starting at $2,500 per affected customer, businesses face potentially devastating exposure in class action VPPA litigation. 

The VPPA emerged from the 1987 Supreme Court confirmation hearings of Judge Robert Bork. A reporter obtained and published a list of 146 films the Bork family had rented, seeking to profile the nominee’s character through his viewing habits. Although the titles were mundane, the leak sparked bipartisan outrage over the lack of legal protection for personal data. Congress responded in 1988 by passing the VPPA, codifying the principle that an individual’s video consumption should remain private.

Congress initially passed the VPPA in 1988 to “preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio-visual materials.” The VPPA prohibits “video tape service providers” from knowingly disclosing “personally identifiable information” about a “consumer” to third parties. The Supreme Court’s review focuses on how 18 U.S.C. § 2710 defines “consumer.” The statute defines a consumer as any “renter, purchaser, or subscriber of goods or services from a videotape service provider.” Plaintiffs now seek to apply the statute to modern pixel tracking.

Plaintiff, Michael Salazar (“Salazar”), seeks to expand the VPPA’s applicability to pixel tracking in digital advertising and subscription services. Salazar brought suits against Paramount and against the NBA. The core facts functionally parallel: Salazar signed up for an email newsletter and then watched videos on the Defendant’s website. Salazar then claims that Paramount and the NBA used Meta Pixel[code that tracks user behavior]and transmitted his personally identifiable information and the titles of the videos he viewed to Meta without his consent. The Supreme Court granted certiorari after the Sixth and Second Circuits employed different standards when determining the requirements to be considered a “consumer” under the VPPA. 

In Salazar v. Paramount Global, the Sixth Circuit Court of Appeals affirmed dismissal and held that a “consumer” must subscribe to services that provide video content, rather than a non-audio-visual service—like an email newsletter. The Sixth Circuit concluded that the VPPA’s protections do not extend to a subscriber who merely receives text-based emails. By contrast, the Second Circuit reached a different conclusion in Salazar v. NBA. The Second Circuit adopted a broader interpretation of “consumer,” holding that the VPPA protects any “subscriber of goods or services,” and that a newsletter qualifies because the statute “does not require the ‘goods or services’… to be audio-visual in nature.” 

Salazar argues that he qualifies as a “consumer” because he subscribed to 247Sports’ and the NBA’s online newsletter. He seeks the Supreme Court to affirm the Second Circuit’s textual interpretation of “consumer,” contending that the VPPA applies to anyone who subscribes to any service from a videotape service provider. In response, Paramount and the NBA ask the Supreme Court to adopt the Sixth Circuit’s narrow [albeit atextual] definition, which applies only to persons who specifically subscribe to video content. 

The Supreme Court’s ruling may significantly impact media companies that utilize pixel tracking for advertising. For this reason, businesses with subscription services offering audio content must carefully monitor their use of pixel tracking, conversion tracking, retargeting, or behavioral profiling.

A Supreme Court ruling in Salazar’s favor could fundamentally alter the risk landscape for digital media companies, likely triggering a surge in consumer class action litigation. By broadening the definition of “consumer” to include anyone who subscribes to a non-video service (such as a free email newsletter), the VPPA’s reach could markedly expand. With the VPPA’s minimum $2,500 liquidated damages requirement and ability to recover attorneys’ fees, companies could face significant liability for violative data-sharing practices. Consequently, businesses with a media vertical need to implement rigorous, VPPA-specific compliance measures to obtain informed, written consent through specific, standalone disclosures before deploying tracking pixels. The Second Circuit remarked that “the VPPA is no dinosaur statute,” and businesses must prepare to evolve their subscription and advertising practices in response to the Supreme Court’s decision. 

Businesses that utilize video content and tracking pixels should assess their VPPA exposure now. Contact us to speak with Jimerson Birr’s privacy and litigation attorneys about pending VPPA litigation, compliance strategies, and litigation risk mitigation.