US Supreme Court: Salazar V Paramount VPPA Online Privacy

• The Supreme Court heard arguments in Michael Salazar's lawsuit against Paramount under the Video Privacy Protection Act.
• Salazar alleges Paramount shared his 247Sports viewing data with Facebook for targeted advertising without consent.
• Justices appeared likely to consider online subscribers like Salazar as "consumers" under the 1988 VPPA.
• However, the Court expressed skepticism about whether 247Sports qualifies as a "video service provider."
• Companies could avoid liability by obtaining explicit consent from users before sharing their data.

The potential broadening of the VPPA's definition of "consumer" could substantially increase liability for sharing subscriber information without explicit consent, even if the "video service provider" definition remains narrowly construed.

The U.S. Supreme Court recently heard arguments in Salazar v Paramount, a case that could significantly reshape how internet privacy laws apply to online platforms. Michael Salazar, a Tennessee resident, initiated legal action against Paramount, the parent company of 247Sports, alleging violations of the Video Privacy Protection Act (VPPA). Salazar contends that after subscribing to 247Sports' online newsletter and providing personal details like his email address, his viewing data was shared with Facebook for targeted advertising purposes. This occurred because he was logged into his Facebook account while accessing content on the 247Sports website.

Salazar's lawsuit hinges on the assertion that he qualifies as a "consumer" under the 1988 VPPA, which defines a consumer as "any renter, purchaser or subscriber of goods or services from a video tape service provider." He argues that his online subscription and engagement with video content on 247Sports bring him within the scope of this definition, thereby making Paramount liable for disclosing his personal information without consent. This interpretation seeks to extend a law originally designed for physical video rentals to the complex landscape of modern digital services and data sharing practices.

Paramount, in its defense, raised concerns that Salazar's broad interpretation of the VPPA's "consumer" definition would render virtually every internet user a "consumer" under the act. The company highlighted the ubiquity of video content across the internet and the common practice of large enterprises owning numerous business lines, suggesting that such an expansive reading could expose a vast array of companies to unforeseen litigation. This argument underscores the challenge of applying a decades-old statute to contemporary digital ecosystems where data sharing is often integral to business models.

The Video Privacy Protection Act was enacted by Congress in 1988, primarily to safeguard individuals' privacy concerning their video viewing habits. This legislative action was a direct response to a notable incident where a reporter publicly disclosed the video rental history of Judge Robert Bork, sparking widespread concerns about personal data exposure. The original intent was to prevent such embarrassing and intrusive revelations, a principle that Justice Elena Kagan suggested remains highly relevant in the digital age. She illustrated this with a hypothetical scenario involving a judge who, after purchasing a newsletter from a sports site, watches "funky sports videos," the disclosure of which would be precisely the kind of embarrassment the VPPA aimed to prevent.

During the oral arguments, the Supreme Court justices appeared receptive to the idea that online subscribers, such as Salazar, should indeed be considered "consumers" under the VPPA, akin to patrons of brick-and-mortar video stores from the 1980s. This inclination suggests a potential broadening of the "consumer" definition to encompass modern online interactions. However, this apparent agreement on Salazar's consumer status was tempered by significant skepticism regarding whether 247Sports itself qualifies as a "video service provider" under the act. This distinction is crucial, as both elements must be met for a VPPA claim to succeed.

Despite the concerns raised by Paramount about the potential for widespread litigation, some justices pointed to a straightforward solution for businesses. Justice Ketanji Brown Jackson observed that companies could readily avoid liability by simply obtaining explicit consent from users before sharing their information. She remarked that "The cure is pretty simple," suggesting that businesses would adapt by implementing consent mechanisms rather than facing an insurmountable burden. This perspective highlights that the core issue might not be the applicability of the law, but rather the current practices of data sharing without explicit user agreement.

The Supreme Court's deliberations in Salazar v Paramount underscore a critical tension between historical privacy legislation and the realities of the modern internet. While the justices seemed inclined to view VPPA online subscriber as a "consumer," they expressed considerable apprehension about the definition of an "online video service provider." Several justices voiced concerns that an overly broad interpretation of this term could inadvertently subject a wide range of businesses, including those like Chick-fil-A that use videos on their websites to market products, to VPPA liability. This highlights the challenge of drawing clear lines in an era where video content is integrated into almost every online commercial activity.

Justice Brett Kavanaugh noted the significant evolution since the 1980s, particularly concerning the types of personally identifiable information being disclosed and the nature of businesses comparable to traditional video rental stores like Blockbuster. This observation points to the difficulty in retrofitting a law designed for a specific technological context onto a vastly different digital landscape. Salazar, however, urged the high court to maintain focus on the initial question of his status as a "consumer," suggesting that the broader implications for "video service providers" could be addressed separately or in future cases.

Ultimately, while the Supreme Court appeared open to allowing Salazar's lawsuit to proceed, its long-term success remains uncertain. The outcome of Salazar v Paramount VPPA Supreme Court will have significant implications for internet privacy Supreme Court jurisprudence and data sharing liability consent practices. It signals that online platforms and businesses that share user data, especially those incorporating video content, should proactively review their data sharing practices and consent acquisition methods. The potential broadening of the VPPA's definition of "consumer" could substantially increase liability for sharing subscriber information without explicit consent, even if the "video service provider" definition remains narrowly construed.

Lawyers should advise online platforms and businesses that share user data, particularly those incorporating video content, to review their data sharing practices and consent acquisition methods. The Supreme Court's apparent inclination to broaden the Video Privacy Protection Act's definition of "consumer" could significantly increase liability for sharing subscriber information without explicit consent, even if the "video service provider" definition remains narrow.

Source: Original reporting via Courthouse News