A subscriber to a free college sports newsletter says Paramount shared his video-watching history with Facebook without his consent. Now, the U.S. Supreme Court is considering whether his newsletter subscription allows him to pursue a claim under a federal video privacy law.
The subscriber, Michael Salazar, sued Paramount over its alleged use of tracking code on 247Sports.com, the company’s college sports and recruiting website. On Wednesday, the justices heard oral arguments over whether the 1988 Video Privacy Protection Act (VPPA) protects subscribers to non-video services.
The dispute turns on the meaning of “consumer,” a statutory definition that has divided federal appeals courts.
From Newsletter to Lawsuit
Salazar signed up for the newsletter in 2022. He alleges that he also watched videos on the website while logged into Facebook.
His proposed class action alleges that Paramount used the Meta Pixel, a piece of website code, to transmit his Facebook account identifier and the web addresses of content he accessed. Salazar claims that this allowed Facebook to connect his identity with his viewing history for targeted advertising without his consent. Paramount disputes that his allegations establish a violation.
The lower courts dismissed his lawsuit because his newsletter subscription did not make him a protected consumer. The newsletter did not allegedly contain or link to audiovisual content, and subscribing was not necessary to watch the website’s freely available videos. A divided Sixth Circuit agreed that the subscription had to involve audiovisual goods or services.
What Congress Wrote
Congress enacted the VPPA after a journalist obtained and published Supreme Court nominee Robert Bork’s video rental history. The law generally prohibits covered providers from knowingly disclosing personally identifiable information about their consumers, subject to specified exceptions. It defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”
Salazar’s argument is essentially that Congress said “goods or services,” not audiovisual goods or services. Other definitions expressly refer to video materials. Courts should not insert that restriction where Congress omitted it.
Paramount argues that the surrounding words supply the limit. “Goods or services from a video tape service provider,” it says, naturally means the video-related offerings that make the business a covered provider. Its lawyer, Paul Clement, compared that language to services from a medical provider: In context, the phrase refers to medical care, not coffee purchased at the hospital.
The Second and Seventh Circuits have adopted the broader interpretation. The Sixth and D.C. Circuits have required an audiovisual connection. Importantly, the broader reading would expand who receives protection, not turn the VPPA into a general shield for newsletter data. Both sides agree that the protected information must connect an identifiable person to specific video materials or services. Disclosure of someone’s newsletter subscription alone is not the claim here.
Why Should the Product Matter?
During Salazar’s argument, Justice Ketanji Brown Jackson questioned why protection should depend on which product a customer obtained. She described someone buying a book about films at a video store and then previewing movies there. Why should disclosure of that person’s viewing history receive different treatment merely because the purchase was a book?
Paramount’s response was that Congress did not protect every viewer. Both sides agree that simply watching a freely accessible video does not, by itself, establish the rental, purchase, or subscription relationship this provision requires.
But Jackson questioned whether Paramount’s interpretation would create an additional, unjustified distinction: protecting customers who obtained videos while excluding those who obtained something else from the same provider, even when their viewing histories were disclosed in the same way.
Consent Has Conditions
Several justices questioned whether companies could address their liability concerns by obtaining consent. But the statute requires more than a general agreement to website terms. Consent must be informed and written, although it may be electronic, and appear separately from forms imposing other legal or financial obligations. Advance consent can last no more than two years, and consumers must have a clear opportunity to withdraw it.
Clement cautioned that obtaining legally sufficient consent was not necessarily as simple as adding a pop-up. He also argued that targeted advertising helps finance freely available online content. Justice Sonia Sotomayor responded that users could decide whether to accept that exchange.
The financial stakes extend beyond a single subscriber. The law authorizes actual damages with a $2,500 liquidated-damages floor, as well as potential punitive damages and attorney fees. The $2,500 figure is not a damages ceiling.
Still, a ruling for Salazar would not automatically establish liability. Questions would remain about whether 247Sports qualifies as a covered video provider and whether the information allegedly transmitted qualifies as personally identifiable information. The immediate stakes are whether a non-video subscription can satisfy the law’s consumer requirement—not whether Paramount must pay damages.
