The Video Privacy Protection Act (“VPPA”) was enacted in 1988, in an era of Blockbusters and video home system tapes.[i] Just a few months prior to its enactment, Judge Robert Bork was under consideration for the United States Supreme Court.[ii] During his nomination hearings, a local D.C. video store disclosed a list of Judge Bork’s video rental records to the press, who then published the leaked information in a circulation of Washington D.C.’s, City Paper.[iii] Although Judge Bork’s video rentals proved to be mundane, these disclosures would lead to a new law in Twentieth Century America, the VPPA, which prohibits video tape service providers from disclosing personally identifiable information about their consumers, absent any informed written consent.[iv]
The act defines a consumer as “any renter, purchaser, or subscriber of goods or services from any video tape service provider[.]”[v] These definitions and terms have been front and center of conflicting modern interpretations in hundreds of lawsuits across the United States. The recent trend of VPPA cases has seen around 200 cases filed annually, with 250 cases filed in 2024.[vi] Although there is no final total number of VPPA cases filed in 2025 yet, as of March 1, 2025, there had already been twenty-eight cases filed.[vii] The brick and mortar video rental stores originally considered under the VPPA are now joined by the intangible, far-reaching streaming platforms most of us log into today. The issue at hand is this: what is the extent of a “consumer” under the VPPA?
The United States Supreme Court is aiming to answer this question in Salazar v. Paramount Global.[viii] In answering this question, though, the Supreme Court must also determine if “goods and services” includes everything a video service provider offers or if the term is limited to those goods and services that are audiovisual in nature.[ix] In this class action case, Michael Salazar sued Paramount Global for violating the VPPA, claiming they disclosed users’ video viewing information when they visited 247Sports.com, a Paramount-owned website reporting on college sports recruitment.[x] Paramount installed a Pixel tool on 247Sports.com, which allowed them to track and disclose Mr. Salazar’s video viewing activity to Facebook without Mr. Salazar’s consent.[xi] The information Paramount disclosed to Facebook included the video content name, its URL, and Mr. Salazar’s Facebook ID, a unique numerical identifier assigned to each Facebook user’s account.[xii]
Mr. Salazar claimed that although he didn’t purchase or rent the videos from 247Sports.com, he was a consumer of 247Sports.com because he signed up for their online newsletter and therefore, subscribed to their video viewing services.[xiii] Paramount asserted that Mr. Salazar did not properly allege he was a “consumer” as defined under the VPPA.[xiv] The District Court for the Sixth Circuit Court of Appeals granted Paramount’s motion to dismiss.[xv] Consequently, the Appellate Court affirmed and the Supreme Court granted certiorari.[xvi]
The Supreme Court’s decision to hear the case likely came as a result of various circuit splits on the issue. In 2024, the Second Circuit in Salazar v. National Basketball Association, which was brought by the same plaintiff, held that the term “goods and services” under the VPPA includes goods and services that are not audiovisual.[xvii] On the other hand, in 2025, the D.C. Circuit, in Pileggi v. Washington Newspaper Publishing, ruled that in addition to consuming audiovisual materials, “the videos for which viewing history is disclosed must be the same video materials or services that the individual purchased, rented, or subscribed to.”[xviii]
The pending decision will present significant implications to companies that, just as Paramount, use embedded videos and social media pixels to share user video viewing information to third parties. According to a 2024 report, about 47 percent of all websites use Meta Pixel tools, including websites in the retail, finance, and health care industries.[xix] These companies use analytics and content engagement tracking to better understand consumers’ behavior and create targeted advertisements.[xx]
A decision in favor of Mr. Salazar, will likely push companies to move towards more explicit consensual agreements, regarding disclosure of user information to third parties.[xxi] The consent for third party disclosures under the VPPA must meet certain statutory requirements, most notably, that the consumer must be provided the opportunity to opt out “in a clear and conspicuous manner.”[xxii] Therefore, if the Supreme Court rules that newsletter subscribers qualify as “consumers” under the VPPA, a general website consent may prove insufficient to cover any user interactions extending beyond newsletter subscriptions.
Challengers of the VPPA can raise First Amendment concerns on the grounds that it impermissibly restricts protected noncommercial speech.[xxiii] Still, the manners in which these companies collect consumer data remain at odds with privacy rights. Although pixels may be considered an industry standard tool, the data they collect can be sensitive. For example, pixels can collect users’ email addresses and then use that information to identify those users’ various social media profiles.[xxiv] Pixels can also collect IP addresses, the electronic device a consumer is utilizing, specific web pages that were visited, and what actions were taken on that website.[xxv]
As we learn to navigate our ever-evolving digital landscape, we should continue to expect new challenges to these privacy rights and how they balance against video service providers. Although the legislature in 1988 may not have anticipated the United States Supreme Court to be tasked with interpreting the terms “consumer” and “goods and services” under the VPPA thirty-eight years after its enactment, such interpretations are crucial for consistent privacy protections in today’s digital world.
[i] See Supreme Court to Hear BG VPPA Appeal, Bailey & Glasser LLP (Jan. 27, 2026), https://www.baileyglasser.com/news-supreme-court-hear-bg-vppa-appeal (talking about the historical context of the VPPA and the recent conflicting interpretations of key terms enumerated in the act, which have given rise to conflicting case rulings).
[ii] See On This Day: Senate Rejects Robert Bork for the Supreme Court, Nat’l Const. Ctr. (Oct. 23, 2023), https://constitutioncenter.org/blog/on-this-day-senate-rejects-robert-bork-for-the-supreme-court [https://perma.cc/T73G-YSTA].
[iii] See Mofetoluwa Koya, Back to Bork: The Video Privacy Protection Act’s Struggle to Define “Consumer” in the Digital Age, 94 Cin. L. Rev. (Oct. 5, 2025), https://uclawreview.org/2025/10/05/back-to-bork-the-video-privacy-protection-acts-struggle-to-define-consumer-in-the-digital-age/ [https://perma.cc/AK8S-F558] (explaining the background of the VPPA and the effects that Judge Robert Bork’s Supreme Court confirmation hearings had on its enactment).
[iv] 18 U.S.C. § 2710(b).
[v] Id. § 2710(a)(1).
[vi] See Jennifer A. Riley, Privacy Class Actions Continue to Proliferate as Plaintiffs Search for Winning Theories, DuaneMorris (Jan. 13, 2025), https://blogs.duanemorris.com/classactiondefense/2025/01/13/trend-3-privacy-class-actions-continue-to-proliferate-as-plaintiffs-search-for-winning-theories/ [https://perma.cc/XTN3-UFR6] (providing numerical data about the growing number of VPPA class action suits filed in the year 2024).
[vii] See Archis Ashok Parasharami & Sophia Mancall-Bitel, Pixel Tools Spur a New Wave of Class Action Litigation Under the Video Privacy Protection Act, ABA (Apr. 22, 2025), https://www.americanbar.org/groups/business_law/resources/business-law-today/2025-april/pixel-tools-vppa-class-action/ [https://perma.cc/QV39-YSC6] (explaining the growing trend of VPPA lawsuits that have led to circuit splits in the Second and Sixth Circuit Courts of Appeals).
[viii] See Kaylee A. Racs et. al., From Blockbuster to Browser: Supreme Court to Define the Modern VPPA “Consumer,” Faegre Drinker (Feb. 5, 2026), https://www.faegredrinker.com/en/insights/publications/2026/2/from-blockbuster-to-browser-supreme-court-to-define-the-modern-vppa-consumer [https://perma.cc/AKD2-QXEP] (explaining that the U.S. Supreme Court will address the question “Who is a ‘consumer?’” in Salazar v. Paramount Global).
[ix] See Molly Jennings et. al., U.S. Supreme Court to Define Who Can Sue Under the Video Privacy Protection Act, WilmerHale (Jan. 20, 2026), https://www.wilmerhale.com/en/insights/blogs/wilmerhale-privacy-and-cybersecurity-law/20260130-us-supreme-court-to-define-who-can-sue-under-the-video-privacy-protection-act [https://perma.cc/3ZM8-88AP] (summarizing the history of the VPPA and the issue at hand in Salazar v. Paramount Global).
[x] Id.
[xi] Salazar v. Paramount Global, No. 25-459, Oyez, https://www.oyez.org/cases/2025/25-459 [https://perma.cc/PH5T-AE9C] (last visited Mar. 18, 2026).
[xii] Id.; see also How to Find Your Numeric Facebook ID, Destination Digital, https://destination-digital.co.uk/news-blogs-case-studies/how-to-find-your-numeric-facebook-id/ [https://perma.cc/G746-ASG6] (last visited Mar. 18, 2026) (explaining that a Facebook ID is “connected with each Facebook account as a unique identifier.”).
[xiii] Jennings, et al., supra note ix.
[xiv] See Salazar v. Paramount Glob., 133 F.4th 642, 649 (6th Cir. 2025) (explaining that the District Court dismissed Mr. Salazar’s claim because he did not allege that he was a “consumer” under the VPPA).
[xv] Id. at 645.
[xvi] Id. at 653.
[xvii] See Salazar v. NBA, 118 F.4th 533, 550 (2d Cir. 2024) (holding that “The phrase ‘goods or services’ in the VPPA’s definition of ‘consumer’ is not cabined to only audiovisual ‘goods and services.’”).
[xviii] See Pileggi v. Wash. Newspaper Publ’g Co., LLC, 146 F.4th 1219, 1237 (D.C. Cir. 2025) (holding that subscribing to a newsletter that provides video content is not sufficient to make someone a “consumer” under the VPPA because “the videos for which viewing history is disclosed must be the same video materials or services that the individual purchased, rented, or subscribed to.”).
[xix] Parasharami & Mancall-Bitel, supra note vii.
[xx] See The FTC Office of Technology, Lurking Beneath the Surface: Hidden Impacts of Pixel Tracking, Fed. Trade Comm’n (Mar. 16, 2023) https://www.ftc.gov/policy/advocacy-research/tech-at-ftc/2023/03/lurking-beneath-surface-hidden-impacts-pixel-tracking [https://perma.cc/E6L5-YEW5] (describing how businesses use the information gathered from pixels to track consumer behavior and in turn, use that information to target ads to consumers who will be more likely to engage with those ads).
[xxi] See Kadi Coult Wharton, What the Video Privacy Protection Act Means for Digital Consent Today, OneTrust (May 13, 2025), https://www.onetrust.com/blog/what-the-video-privacy-protection-act-means-for-digital-consent-today/ [https://perma.cc/TWU4-GT88] (explaining that the VPPA requires a clear and informed consent from the consumer regarding the actual information being disclosed).
[xxii] 18 U.S.C. § 2710(b)(2).
[xxiii] Parasharami & Mancall-Bitel, supra note vii.
[xxiv] The FTC Office of Technology, supra note xx.
[xxv] Steven John, Pixels: tracking Your Audience Across the Web (and Email), Taboola (June 22, 2025), https://www.taboola.com/marketing-hub/pixel/ [https://perma.cc/25JU-R324] (writing that pixels can “collect browsing history, location, and device information, and can be used for cross-site tracking, profiling, and even exploitation by malicious actors.”).
