• by Wendy Davis  @wendyndavis, April 4, 2025

Siding with Paramount, a divided appellate panel refused to revive a lawsuit alleging that the company violated a Reagan-era federal video privacy law by sharing data with Meta Platforms.

The ruling, issued Thursday by a panel of the 6th Circuit Court of Appeals, could set the stage for the Supreme Court to weigh in on the scope of the Video Privacy Protection Act, a law passed in 1988 after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper. The law prohibits video providers from disclosing consumers' personally identifiable video-viewing history.

Even though the Video Privacy Protection Act predates the current streaming media landscape, judges across the country have said the statute covers online video services. But other questions about the law's applicability to digital media -- including whether people who watch free videos are "consumers" -- are still working their way through the courts.

This week's ruling in Paramount's favor comes around six months after a different appellate court, the 2nd Circuit Court of Appeals, came to the opposite conclusion in a video privacy lawsuit against the National Basketball Association. The National Basketball Association last month asked the Supreme Court to hear an appeal of that ruling.

Both lawsuits were brought in 2022 by California resident Michael Salazar.

He alleged in the complaint against Paramount that he subscribed to an online newsletter put out by Paramount's college sports publication, 247Sports.com, and also viewed videos on 247Sports.com while logged in to his Facebook account. 247Sports.com allegedly sent his personally identifiable video-viewing information to Meta via its analytics tool, the Meta Pixel, which was embedded on the site, according to the complaint.

Salazar claimed that Paramount violated the Video Privacy Protection Act, which prohibits video rental companies from disclosing personally identifiable information about “consumers'” viewing history without their permission. 

Congress passed the law in 1988 after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper. Even though the law predates the current streaming media landscape, judges across the country have said the statute covers online video services. But other questions about the law's applicability to digital media -- including whether people who watch free videos are "consumers" -- are still working their way through the courts.

U.S. District Court Judge Eli Richardson in the Middle District of Tennessee dismissed Salazar's complaint, ruling that he wasn't a “consumer,” which the video privacy law defines as a “renter, purchaser or subscriber of goods or services from a video tape service provider.”

Salazar then appealed to the 6th Circuit, where he argued that he subscribed to Paramount by signing up for 247Sports.com's online newsletter.

The appellate panel rejected that contention, writing that people are only “consumers” for purposes of the video privacy law if they subscribe to goods or services that are “in the nature of” audio-visual material.

The panel went on to write that Salazar's allegations wouldn't establish that 247Sports.com's newsletter was in itself audio-visual material. Therefore, the majority said, Salazar's allegations, if proven true, wouldn't show that he “subscribed” to a video tape service provider.

“Standing alone, Salazar’s allegation that he subscribed to 247Sports.com’s newsletter was not enough to render him a 'consumer,'” Circuit Judge John Nalbandian wrote in an opinion joined by Circuit Judge Alice Batchelder.

Circuit Judge Rachel Bloomekatz dissented, arguing that the statute applies when people rent, purchase or subscribe to any “goods or services” from a company that offers video.

“Indeed, while Judge Bork rented videos from a local video store, the disclosure of his viewing history would not have been any less invasive had he rented from a supermarket that had a video rental department. (I remember when some did.),” she wrote.

The ruling comes as the Supreme Court is weighing a petition for review by the National Basketball Association, which lost a nearly identical battle.

In that matter, as in the Paramount case, Salazar alleged that the sports organization shared information about the videos he viewed on NBA.com with Meta, via the Meta Pixel. Salazar also alleged that he was a “consumer” because he had signed up for an online National Basketball Association newsletter that offered links to videos on NBA.com.

A trial judge dismissed the complaint, but the 2nd Circuit reinstated the case last October, ruling that web users who provide personal information in exchange for content are consumers.

“Congress deployed broad language in defining the term 'consumer,' showing it did not intend for the VPPA [Video Privacy Protection Act] to gather dust next to our VHS tapes,” Circuit Judge Beth Robinson wrote in an opinion joined by Judges Reena Raggi and Eunice Lee.

The sports organization recently asked the Supreme Court to intervene, arguing that Salazar shouldn't have been considered a consumer for purposes of the video privacy law.

The National Basketball Association added in its petition that the 2nd Circuit ruling threatens “the data-use practices that make so much of the Internet free, accessible, and useful to consumers.”

Salazar's counsel waived the right to respond, but on Wednesday the Supreme Court said it wanted to hear from counsel by May 2. The Supreme Court rejects most petitions seeking review, but asking for a response slightly increases the likelihood it will hear the case, according to Bloomberg Law.