This morning, the Supreme Court granted a petition asking it to determine whether the Video Privacy Protection Act (“VPPA”) applies to consumers who subscribe to non-audiovisual content, such as a digital newsletters, rather than directly to audiovisual materials.
The VPPA prohibits videotape service providers(“VTSP”) from disclosing “information which identifies a person as having requested or obtained specific video materials or services.” The prohibition only applies to disclosures concerning the VTSP’s “consumers” – defined as “any renter, purchaser, or subscriber of goods or services from a VTSP.” 18 USC § 2710(a)(1)
The petition for writ of certiorari, filed by Petitioner-Plaintiff Michael Salazar, challenges a Sixth Circuit ruling in favor of Respondent-Defendant Paramount Global, which affirmed that Salazar couldn’t be considered a “consumer” under the VPPA because he subscribed to an online newsletter and not specifically to audiovisual materials. Salazar v. Paramount Global, No. 23-5748, 133 F.4th 642 (April 3, 2025), reh’g denied, 2025 WL 1409343 (May 13, 2025). This decision, which was followed by the D.C. Circuit, created a split of authorities: the Second and Seventh Circuit Courts of Appeal had taken a contradictory position, allowing VPPA claims to proceed if the “consumer” merely subscribed to a good or service from a video tape service provider. Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024) (“The VPPA’s text, structure, and purpose compel the conclusion that [the phrase ‘goods or services from a video tape service provider] is not limited to audiovisual ‘goods or services.’”); Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022 (7th Cir. 2025) (holding that the decisive factor is whether “the entity on the other side of the transaction is a ‘video tape service provider,’” not whether the “good or service” involved is a video or a stream).
Specifically, the question present to the Supreme Court is as follows:
Whether the phrase “goods or services from a video tape service provider,” as used in the VPPA’s definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.
Whether the phrase “goods or services from a video tape service provider,” as used in the VPPA’s definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.
Notably, the VPPA was enacted in 1988 in response to a newspaper article titled ‘The Bork Tapes,’ which identified 146 films that Judge Robert Bork and his family had rented from a video store. At the time of publication, the Senate Judiciary Committee was holding hearings on Judge Bork’s nomination to the Supreme Court. According to the Senate Report accompanying the law’s passage, Congress passed the Act “[t]o preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio-visual materials.”
While pixel and cookie related wiretap claims are still being zealously filed, the VPPA, with its statutory damages of $2,500 per violation, seems to be the latest arena where businesses are facing potentially crushing exposure in class action lawsuits. See ABSOLUTE DISASTER: Facebook Pixel Usage Leads to Huge VPPA and ECPA Loss for the University of Phoenix and They Hired the Wrong Law Firm – TCPAWorld.
This case is Michael Salazar v. Paramount Global, dba 247Sports, Petition No. 25-459 before SCOTUS.
We’ll be discussing the VPPA and much more at the Law Conference of Champions this May in Irvine, California – make sure you get your tickets!
CIPAWorld 