Last week, the U.S. Supreme Court agreed to hear a case that is expected to resolve a long-developing split among federal courts of appeals over the scope of the Video Privacy Protection Act of 1988 (“VPPA”), 18 U.S.C. § 2710. In granting certiorari in Salazar v. Paramount Global, the Court will address a question that has increasingly shaped VPPA class action litigation in recent years: who qualifies as a “consumer” protected by the statute.
In Salazar v. Paramount Global, the U.S. Court of Appeals for the Sixth Circuit held that a plaintiff who subscribed to a digital newsletter and viewed video content on a sports website was not a “consumer” under the VPPA because his subscription relationship was not centered on audiovisual goods or services. 80 F.4th 446 (6th Cir. 2023). That holding conflicts with decisions from other courts, including the Second and Seventh Circuits, which have interpreted the statute more broadly and permitted VPPA claims based on non-video subscriptions where content is embedded within a digital service.
The Supreme Court’s decision to review this issue marks a significant development for website operators that host video content or deploy tracking technologies. The grant is particularly significant given that the plaintiffs’ bar has continued to adopt and pursue ever broader readings of the VPPA despite the potential for those theories to sweep common methods used to display video on websites.
Background
Congress enacted the VPPA in 1988 when video viewing involved renting, rewinding, and returning VHS tapes—not watching short clips embedded on company websites. The statute was prompted by a highly publicized incident during the confirmation hearings of Supreme Court nominee Judge Robert Bork, when a local video rental store disclosed his rental records to a reporter from the Washington City Paper. Publication of that information sparked widespread concern about the public disclosure of individuals’ video-viewing habits. In response, Congress enacted the VPPA to prohibit a “video tape service provider” from knowingly disclosing “personally identifiable information” concerning a consumer’s video viewing habits to third parties without informed consent. 18 U.S.C. § 2710. The statute provides for statutory damages of at least $2,500 per violation, as well as potential punitive damages, attorneys’ fees, and costs.
While neighborhood video stores have long disappeared and video content has migrated from bulky television sets to websites and streaming platforms, the statute has remained unchanged. In parallel with these technological changes, VPPA litigation has increased as plaintiffs have sought to apply the statute to contemporary digital practices. Over the past decade—and with notable acceleration in the last five years—plaintiffs have increasingly asserted VPPA claims based on online video content, embedded players, and the use of third-party storage and analytics. These cases have required courts to grapple repeatedly with the scope of the statute’s core terms, including who qualifies as a “consumer,” what entities fall within the definition of a “video tape service provider,” and when personal information is disclosed in connection with the provision of video services.
Issue Before the Supreme Court
The Supreme Court’s review in Salazar v. Paramount focuses on the interpretation of the key term “consumer” under the statute. The VPPA defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider,” and generally prohibits such providers from disclosing personally identifiable information concerning consumers’ video-viewing activities. 18 U.S.C. § 2710(a)(1), (b)(1).
In Salazar, the plaintiff subscribed merely to an online newsletter, not a video service, and separately viewed video content on a sports website. Under these facts, the Sixth Circuit concluded that he was not a VPPA “consumer” because his subscription was not to audiovisual goods or services. The court reasoned that merely viewing video content embedded within a broader digital offering, without a transactional subscription relationship focused on video, fell outside the statute’s scope.
Other circuits, however, have reached different conclusions. As noted, decisions from the Second and Seventh Circuits have interpreted the statute more broadly, permitting VPPA claims to proceed where video content is embedded within a broader digital service—even in the absence of a subscription focused specifically on audiovisual content—so long as another type of subscription relationship exists, such as a subscription to an email newsletter.
By granting certiorari, the Supreme Court agreed to resolve this inconsistency in lower court interpretations. The Court’s decision is expected to clarify whether the VPPA applies only where a consumer subscription relationship is for video goods or services, or whether it extends to any subscription. This grant of review is particularly notable because, in recent years, the Court has declined to take up similar VPPA petitions, allowing lower courts to continue applying divergent interpretations of the elements of the statute in the digital context.
Implications for Businesses
The Court’s decision in Salazar may well have significant implications for a range of companies, from those that merely host or embed video content on their website to those that integrate third-party analytics or advertising technologies or otherwise monetize user engagement. In recent years, plaintiffs have increasingly relied on the VPPA as a basis for class action litigation across a wide range of industries, including media and streaming platforms, cooking shows, apparel manufacturers, and other consumer-facing websites. Many of these cases are premised on alleged disclosures of video-viewing data through pixels, cookies, or similar tracking tools, often involving short-form or embedded video content rather than traditional audiovisual subscriptions. The VPPA’s liquidated damages provision—at least $2,500 per violation—have made such claims an attractive vehicle for class action plaintiffs given the potential for crushing damages if found liable.
Depending on the outcome, the decision may influence how companies structure user subscriptions, deploy video on their websites, and assess litigation risk associated with data-sharing practices tied to video engagement. A narrower interpretation may limit claims based on incidental or embedded video viewing, while a broader construction could sustain liability theories tied to a wide range of digital services that include video content. In the meantime, Ropes & Gray will continue to monitor developments in VPPA litigation and assess how these trends shape compliance expectations and risks across the digital services ecosystem.
