• by Wendy Davis , 11 hours ago

The Supreme Court on Monday agreed to take up a battle about how a privacy law passed in the Reagan-era applies to web companies that offer online video.

The Video Privacy Protection Act, passed by Congress in 1988 after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper, prohibits video rental companies from disclosing personally identifiable information about consumers' viewing history without their permission. 

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.

Although the video privacy law predates widespread streaming video, judges across the country have said the statute covers online video services. But questions about other terms in the law -- including its definitions of terms like consumer and personally identifiable information -- are still working their way through the courts.

The specific dispute that the Supreme Court agreed to hear centers on is the definition of "consumer."

The legal proceedings date to 2022, when a California resident named Michael Salazar claimed in a class-action complaint that Paramount's 247Sports.com violated the Video Privacy Protection Act by allegedly sending his video-viewing information to Meta via its analytics tool, the Meta Pixel.

Salazar alleged that he subscribed to Paramount's online newsletter 247Sports.com, and also viewed videos on 247Sports.com while logged in to his Facebook account.

U.S. District Court Judge Eli Richardson in the Middle District of Tennessee dismissed Salazar's complaint, ruling that he didn't meet the definition of consumer.

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

A divided panel of the 6th Circuit panel rejected Salazar's argument, ruling 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.

“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 any company that offers videos -- including non-video businesses such as supermarkets.

"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," Bloomektaz wrote. "I remember when some did," she added in a parenthetical.

After the 6th Circuit ruled, the D.C. Circuit Court of Appeals also said 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.

But other judges have interpreted the word "consumer" more broadly.

In 2024, for instance, a three-judge panel of the 2nd Circuit Court of Appeals revived a class-action complaint -- also brought by Salazar -- 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.

The 2nd Circuit ruled that people who "provide personal information in exchange for content" are consumers.

The National Basketball Association unsuccessfully asked the Supreme Court to review that decision, and the Interactive Advertising Bureau and National Retail Federation backed the sports group's request, arguing in a friend-of-the-court brief that the video privacy law is "outdated" and that the current wave of lawsuits over the statute pose “a particular threat” to retail and advertising.

(Salazar's suit against the sports group was dismissed last year on other grounds. He is currently appealing that dismissal to the 2nd Circuit.)

The Supreme Court hasn't yet said when it will hear arguments in the dispute between Salazar and Paramount.