• by Wendy Davis , Yesterday

California resident Michael Salazar has petitioned the Supreme Court to take up his battle with Paramount over a 28-year-old video privacy law.

In a filing made available this week, Salazar argues that the lower courts wrongly dismissed his claim that Paramount violated the Video Privacy Protection Act by allegedly sending his identifiable video-viewing information to Meta via its analytics tool, the Meta pixel.

That law, passed during the Reagan era, prohibits video rental companies from disclosing personally identifiable information about “consumers'” viewing history without their permission. Congress approved the law after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper.

In recent years, web users have brought numerous class-action complaints alleging companies offering streaming video on sites that embed analytics tools like the Meta pixel are violating the video privacy law. Salazar himself has filed two such cases -- one against Paramount and another against the National Basketball Association.

The video privacy law predates the era of streaming video, but judges across the country have interpreted the law as covering online video services. Questions about other terms in the law -- including its definition of "consumer" -- are still working their way through the courts.

Salazar claimed in his complaint against Paramount that he subscribed to its online newsletter 247Sports.com, which allegedly sent his video-viewing information to Meta via its pixel.

U.S. District Court Judge Eli Richardson in the Middle District of Tennessee dismissed the matter, ruling that Salazar wasn't a "consumer" for purposes of the law. The video privacy law itself defines consumer 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 met the law's definition of consumer because he subscribed to Paramount by signing up for 247Sports.com's online newsletter.

A divided panel of the 6th Circuit rejected that argument, with the majority ruling that newsletter subscribers aren't "consumers" for purposes of the video privacy law. The majority specifically held that plaintiffs in video privacy cases are only “consumers” if they subscribe to goods or services akin to audio-visual material.

The dissenting judge said the video privacy law should apply when people rent, purchase or subscribe to any “goods or services” from any company that offers videos -- including non-video businesses such as supermarkets.

After the 6th Circuit handed down its decision, the D.C. Circuit Court of Appeals also ruled people are only "consumers" for purposes of the video privacy law if they purchase, rent or subscribe to a video service.

The court in that matter upheld the dismissal of a lawsuit by web user Nicole Pileggi, who sued the Washington Examiner for allegedly transmitting information about the videos she views online to Meta, via its pixel. Like Salazar, Pileggi had argued that she was a consumer because she subscribed to the paper's online newsletter.

Other courts have interpreted the word "consumer" more broadly.

Last year, for instance, the 2nd Circuit Court of Appeals revived Salazar's class-action complaint claiming that the National Basketball Association violated the video privacy law by allegedly sharing data with Meta, via the pixel.

In that case, Salazar had alleged that he was a consumer because he had signed up for an online NBA newsletter that offered links to videos on NBA.com.

A three-judge panel of the 2nd Circuit Court of Appeals ruled that people who "provide personal information in exchange for content" are consumers. (Earlier this month, U.S. District Court Judge Jennifer Rochon in New York dismissed Salazar's complaint for a different reason. She ruled that even if Salazar's allegations were true, the National Basketball Association wouldn't have disclosed personally identifiable information.)

Salazar is now arguing to the Supreme Court that it should hear his appeal against Paramount for several reasons, including that the circuit courts are divided over the meaning of consumer.

"That intractable conflict requires this Court’s intervention," his attorneys write.

His counsel also contends that the 6th Circuit majority wrongly interpreted the Video Privacy Protection Act, arguing the law was meant to apply to newsletter subscribers like Salazar.