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 will determine this trajectory when it defines “consumer” in the pending case, Michael Salazar v. Paramount Global, dba 247Sports. With statutory damages reaching $2,500 per violation, businesses face potentially devastating exposure for class action VPPA lawsuits.
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 video tape service provider.” Plaintiffs now seek to apply the statute to modern pixel tracking.
Presently, plaintiff, Michael Salazar (“Salazar”), seeks to expand the VPPA’s applicability to pixel tracking in digital advertising and subscription services. Salazar brought two separate suits: one against Paramount and one against the NBA. The claims functionally parallel each other: In both cases, Salazar signed up for an email newsletter and then proceeded to watch videos on the Defendant’s website. Salazar claims that Paramount and the NBA utilized Meta Pixel—code that tracks user behavior—and transmitted Salazar’s personally identifiable information and the titles of his viewed videos to Meta without his express written consent. The Supreme Court granted certiorari after the Sixth and Second Circuits interpreted the meaning of ‘consumer’ differently.”
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 broad meaning of “consumer”, contending that the VPPA applies to anyone who subscribes to any service from a company that provides video content. In response, Paramount and the NBA ask the Supreme Court to adopt the Sixth Circuit’s narrow definition that only includes persons who specifically subscribe to video content.
The Supreme Court’s ruling may significantly impact businesses that utilize pixel tracking for advertising. If Salazar succeeds, subscribers to email newsletters may find a new avenue to seek relief under the VPPA if companies share their personally identifiable information without written consent. For this reason, businesses that provide subscription services and include audio-visual 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 and pixel tracking, 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 would effectively expand to nearly every modern business that utilizes video content for marketing or engagement. With the VPPA permitting recovery for statutory damages of $2,500 per violation, companies could face astronomical liability for data-sharing practices. Consequently, businesses would need to implement rigorous, VPPA-specific compliance measures, moving beyond general privacy policies to obtain “informed, written consent” through specific, standalone disclosures before deploying tracking pixels. For any entity that pairs a subscription model with video content, the ruling would transform the VPPA into one of the most potent—and expensive—privacy enforcement tools in the digital age. 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 which 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.