COLUMN-VHS and streaming eras collide in Supreme Court video privacy case

By Jenna Greene

Jan 28 (Reuters) - The U.S. Supreme Court agreed this week to review a proposed class action stemming from a 1988 law protecting the privacy of videotape renters — a throwback to an era when a trip to Blockbuster to rent “Dirty Dancing” or “Die Hard” was (in the vernacular of the day) totally rad.

But the implications of the dispute are anything but retro. Business groups warn that a win for the plaintiffs could effectively prohibit targeted online advertising and upend the revenue models of countless websites.

The case hinges on a surprisingly still-relevant question: What does it mean to be a “consumer” of goods or services from a videotape service provider?

Lead plaintiff Michael Salazar sued Paramount Global in Nashville federal court in 2022 under the Video Privacy Protection Act. Sometimes called “the Bork bill,” the law was enacted nearly 40 years ago after a video store clerk gave a newspaper reporter a list of 146 movies rented by then-U.S. Supreme Court nominee Judge Robert Bork and his family.

The law allows consumers to assert claims against any “video tape service provider” for disclosing their personally identifiable information about specific audiovisual materials to third parties without express consent. Penalties are steep: $2,500 per violation, and successful plaintiffs can also recover legal fees.

Salazar subscribed to 247Sports, Paramount’s free e-newsletter about college athletics, and said he used the subscription to watch sports videos online. He claims Paramount installed Meta’s “Pixel” tool — a snippet of code that allows companies to track visitor activity — on the 247Sports site. The tool allegedly enabled disclosure of his personally identifiable information, including his video viewing history, to Facebook without his consent.

Paramount, which did not respond to a request for comment, argues that a written newsletter isn’t an audiovisual material, and that subscribing to one doesn’t make Salazar a “consumer” under the statute.

As for any alleged privacy violations, Paramount's lawyers at Weil, Gotshal & Manges argue that various courts have held computer code shared in targeted advertising doesn’t qualify as personally identifiable information.

Meta is not a party to the case and did not respond to a request for comment.

Plaintiffs' lawyers have dusted off the video privacy law in recent years, using it to file claims against a wide swath of companies that offer both an email newsletter and videos on their websites. According to an analysis by law firm Duane Morris, consumers filed 78 class actions under the law in 2025, down from 116 in 2024 and a peak of 150 in 2022.

Judicial reception has varied, leading to a 2–2 split among federal appellate courts — just the kind of division that invites Supreme Court review.

As a vehicle for resolving the split, the justices had a choice of two cert petitions involving nearly identical facts, both with Salazar as lead plaintiff and represented by Bailey Glasser partner Joshua Hammack — but with different outcomes.

The high court passed on Salazar's case against the National Basketball Association, which was revived in 2024 by the New York-based 2nd U.S. Circuit Court of Appeals. The panel held that Salazar was a “consumer” of “goods and services” when he viewed the league’s videos on its website, even if the videos were not directly related to the newsletter. (The case was subsequently dismissed on other grounds.)

The 7th Circuit followed a few months later with a similar holding in a case involving classic television network Me-TV.

In the other direction, a divided panel at the Cincinnati, Ohio-based 6th Circuit in April 2025 upheld a ruling dismissing Salazar’s case against Paramount with prejudice, ruling that the newsletter wasn’t an audiovisual material and Salazar wasn’t a video consumer.

Adding to the split, the D.C. Circuit in August backed the 6th Circuit’s view, dismissing a case against the publisher of the Washington Examiner.

The NBA, which did not respond to a request for comment, and amici including the National Football League and the National Retail Federation, urged the high court to take up the 2nd Circuit case. Should the decision stand, the NFL warned, it could “impose enormous liability on online content providers far beyond any conceivable harm to consumers from the alleged routine data transfers.”

But Salazar successfully argued that his loss before the 6th Circuit offered a cleaner look at the issue because the appellate court's judgment was final. The NBA fight, by contrast, is back before the 2nd Circuit on another question and involves claims that Salazar has twice amended.

“As you can imagine, we're quite happy the Court agreed to take up the question,” Salazar’s attorney Hammack said via email.

Millions of dollars in potential damages and legal fees are on the line. Depending on how the court rules, a statute written for the age of video stores may end up defining the rules of data, privacy and advertising for the internet today.