The U.S. Supreme Court recently heard arguments in Salazar v. Paramount Global concerning the interpretation of the 1988 Video Privacy Protection Act. Michael Salazar alleges that Paramount shared his viewing history from 247Sports.com with Facebook without his permission.
The Chick-fil-A hypothetical and Chief Justice Roberts' critique
During Wednesday's proceedings, the courtroom atmosphere turned lighthearted when Paul Clement, the attorney representing Paramount Global, attempted to use simplified examples to illustrate his client's position. Clement suggested that a company like Chick-fil-A might have videos on its website, but that does not make the fast-food chain a "video service provider." According to Newsweek, this line of reasoning prompted laughter from the justices when Clement admitted it was his "job to focus on" the easier hypotheticals.
Chief Justice John Roberts pushed back against this strategy,noting that while Chick-fil-A is an easy example, many stores sell a variety of goods including the types of videos at issue in this case. Roberts explicitly told Clement that he believed a lawyer's job should be to "focus on the hard ones," highlighting a tension between the defense's attempt to narrow the law's scope and the Court's desire to understand its broader application.
Defining a 'consumer' under the 1988 Video Privacy Protection Act
The core legal dispute centers on the definition of a "consumer" within the Video Privacy Protection Act (VPPA) of 1988. The Supreme Court is being asked to decide if the phrase "goods or services from a video tape service provider" applies to any service offered by that provider—such as a newsletter—or if it is strictly limited to audiovisual services. As reported by Newsweek, Joshua Hammack, the attorney for Michael Salazar, argues that Congress did not place audiovisual limitations on the definition of a consumer, making the broader interpretation the correct one.
Paramount Global contends that Michael Salazar does not qualify as a protected consumer because his interaction with 247Sports.com began with a newsletter subscription rather than a subscription to a video service. paul Clement argued that the plaintiff is attempting to "repurpose the statute" to cover individuals who have never actually rented or purchased a video, which would fundamentally alter the original intent of the 1988 law.
How 247Sports.com data allegedly raeched Facebook
The technical mechanism of the alleged privacy breach involves the intersection of newsletter sign-ups and social media tracking. Michael Salazar claims that after he subscribed to the 247Sports.com newsletter, the website disclosed his personally identifiable information to Facebook while he watched videos while logged into his Facebook profile.. This data was then allegedly used by Facebook to generate and display targeted advertisements specifically for Salazar.
This specific sequence of events led to a split in lower court interpretations. One lower court sided with Paramount Global, ruling that a newsletter subscription does not satisfy the requirement to subscribe to audiovisual materials. However, Salazar's legal team pointed out that other courts have found that newsletter subscriptions from video providers do indeed make a user a "consumer" under the VPPA, even on virtually identical facts.
The struggle to apply 1980s privacy laws to modern tracking pixels
This case is part of a growing trend of "statutory stretching," where litigants use decades-old laws to combat modern digital surveillance. The VPPA was written in an era of physical VHS tapes and brick-and-mortar rental stores, yet it is now being used to challenge the invisible data-sharing pipelines between websites and advertising giants like Facebook. Michael Salazar's involvement in a similar case with the NBA suggests a strategic effort to use the VPPA as a primary tool for digital privacy litigation.
The stakes for the broader tech industry are significant. If the Supreme Court rules that any service (like a newsletter) makes a user a "consumer," thousands of websites that embed video content and use tracking pixels could suddenly find themselves liable for massive class-action lawsuits under a law written before the World Wide Web existed.
Whether the Court will adopt the 'audiovisual limitation' proposed by Paramount
A critical unresolved point is whether the Court will accept Paramount Global's proposed "audiovisual limitation." While Joshua Hammack argues that the absence of such a limitation in the text is "dispositive," the Court has not yet signaled if it views the 1988 legislative intent as more important than the literal text. Furthermore, it remains unclear how the Court will reconcile the conflicting rulings from lower courts that have viewed newsletter subscriptions differently.
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