SCOTUS to Resolve Circuit Split on VPPA “Consumer” Definition in Salazar V. Paramount Global

Introduction: Origins of the VPPA and its role in the Salazar v. Paramount Global case

In the upcoming October 2026 term, the Supreme Court will resolve the circuit split on who qualifies as a consumer under the Video Privacy Protection Act (VPPA) in the highly anticipated Salazar v. Paramount Global case. The VPPA is a 1988 federal law that prohibits video providers from disclosing consumers’ personally identifiable information to third parties without their consent. In Salazar v. Paramount Global, the question before the Court is whether the phrase “goods or services from a video tape service provider” in the VPPA’s definition of “consumer” refers to all of a video tape service provider’s goods or services, or only audiovisual goods or services.  While this may seem like a very technical legal question, the Supreme Court’s analysis in this case could have an immense impact on how much data companies collect online and disclose about our video viewing habits.

The history and origins of the VPPA demonstrate that this law was meant to protect private video viewing habits

The VPPA was passed in 1988 in an era when media consumption was shaped by video rental stores, where consumers would physically rent and or purchase VHS tapes. When information about Judge Robert Bork’s video rental records were published in a newspaper without his consent in the infamous “Bork Tapes” pending his nomination to the Supreme Court in 1987, Congress was scandalized, and acted swiftly in response by passing the law to classify  video rental histories of individual consumers as personal information that they had a right to protect from public disclosure. Congress was not assuaged when Michael Dolan’s “Bork Tapes” coverage in the Washington City Paper revealed that Bork’s consumption of British media and films was not, in fact, salacious. The threat that anyone’s private media viewing history could be exposed was enough to motivate Congress to pass legislation. The VPPA made clear that it was a violation of an individual’s fundamental right to privacy to disclose their video viewing habits without their consent.

The scope and impact of the VPPA have changed as video service and data collection technologies have evolved

 Today’s media landscape looks vastly different than the VHS-era of media consumption in the 1980s. Consumers are inundated with targeted advertisements; digital streaming platforms have rendered the traditional video rental store obsolete; social media platforms with short-form videos, content, and reels hook users to addictive feeds; and modern tracking technologies allow companies to more invasively track consumers to build extensive consumer profiles. What it means to be a video tape service provider in today’s media landscape has expanded beyond the confines of video rental stores. Technology companies, streaming platforms, news outlets, and media platforms all provide digital video content, and many of those same companies provide other goods and services to consumers. These changes have broadened the scope of providers regulated under the VPPA. The VPPA’s protections are important now more than ever.  

In today’s modern technology ecosystem, VPPA protections can provide crucial safeguards for data about the personal viewing habits of consumers. This includes preventing video providers from sharing consumers’ sensitive data with third parties like data brokers and advertisers. Pixel tracking technologies have become a ubiquitous method for companies to surreptitiously collect and disclose consumer data without their consent or knowledge. Tracking pixels have evolved from small, pixel-sized images on web pages to hidden JavaScript and HTML code embedded in websites that companies use to track and disclose a range of personal data about consumers as they interact with a given webpage. Companies collect this consumer data via webpage visits, pageviews, clicks, and ad interactions to predict and track consumer behavior.

Consumers have no way of avoiding the widespread use of these tracking technologies, which are invisibly embedded within various websites and tend not to be blocked by the same browser control restrictions for cookies. Pixel trackers have been found on 30% of the top 100,000 websites. According to the Markup, one-third of the top 100 U.S. hospitals’ websites included the Meta Pixel, which transmits user data to Meta, largely for advertising purposes. According to Lockdown Privacy, Planned Parenthood’s online appointment scheduling tool used similar pixel trackers that essentially tracked patients’ appointments, with capacity to monitor abortion and other reproductive care that patients may receive. The U.S. regulatory landscape has yet to catch up with the proliferation of these tracking technologies. Companies’ pervasive use of pixel tracking underscores the VPPA’s crucial limitations on the disclosure of consumers’ personal information.

Companies have sought to narrow the scope of the VPPA with claims that the law is outdated and should not be extended to digital platforms and online tracking systems like these. However, Congress’ amendment to the law through the 2012 Netflix Amendments explicitly modernized the VPPA in a manner that is compatible with protecting the public from unauthorized, third-party data disclosures of consumers’ video-viewing habits. And with the Netflix Amendments, Congress amended the VPPA the law to apply it to our digital age. The VPPA’s adaptation to Netflix and other digital streaming platforms is indicative of the fact that the law is not limited to the traditional brick-and-mortar stores that facilitated the rental, sale, or delivery of audiovisual tapes and other physical materials that were commonplace when the law was initially passed. This means that tech companies that embed website tracking pixels to monitor and collect the personal viewing habits of consumers may face greater scrutiny for disclosing or selling this data to deploy targeted advertisements. Ultimately, the VPPA can and should still apply to protect individuals from the unauthorized disclosure of their private viewing information, including when that information is disseminated to large corporations that use this data to build predictive, digital profiles about consumers.

Many video service providers in our modern digital environment do not offer only traditional audiovisual goods and services. Today, providers offer other non-video services as well as online newsletters, real-time score feeds, sports news and analytics, and interactive and immersive content. With these ever-increasing changes dominating digital advertising and tracking technology industries, the question before the Supreme Court principally concerns whether the VPPA should be limited to consumers who access “traditional” audiovisual goods or services, or interpreted to apply to consumers on digital platforms that may feature audiovisual, as well as non-audiovisual content on their platforms.

Salazar v. Paramount Global

In September 2022, Michael Salazar filed a class action lawsuit against Paramount Global alleging that the company violated the VPPA by disclosing his video viewing history from its website 247Sports.com to Meta without his consent. Salazar alleged that Paramount embedded a third-party tracking pixel from Meta into the 247Sports.com website, which tracked his video viewing history on the website and disclosed this information to Meta. Meta connected Salazar’s viewing history to his Facebook account profile. The U.S District Court for the District of Tennessee granted Paramount’s motion to dismiss for failure to state a claim, holding that Salazar was not considered a “consumer” under the VPPA. Salazar appealed to the U.S. Court of Appeals for the Sixth Circuit. On appeal in April 2025, the Sixth Circuit validated Paramount’s contentions that the VPPA was inapplicable in regulating the company’s conduct on grounds that Salazar was not a “consumer” within the law’s statutory definition because he did not subscribe to any specific “audiovisual” services from 247Sports.com. Salazar’s appeal to the Supreme Court provides the Court an opportunity to determine whether the VPPA’s “consumer” definition can be interpreted to apply to all forms of content that video tape service providers feature on their subsidiary websites.

1. EPIC’s Brief:In our amicus brief to the Supreme Court, EPIC argues that the VPPA’s “consumer” definition is consistent with protecting consumers’ online video viewing habits, and that this data remains sensitive and personal. EPIC argues that using pixels and other online tracking technologies for targeted advertising purposes are not functionally necessary for video providers to provide their goods and services to consumers. EPIC also argues that effective digital advertisements don’t necessitate the collection and disclosure of personally identifiable information. Companies seeking to restrict the scope of consumers to only audiovisual subscribers creates a judicial carveout and loophole for VTSPs to disclose consumer-subscribers’ sensitive video-viewing information without obtaining consent. Ultimately, narrowing the scope of the VPPA’s definition of consumers makes the law less effective at achieving its very purpose: protecting consumers’ private video watching information. 
2. Salazar’s Brief: Salazar’s appeal to the Supreme Court argues that the statutory definition of a consumer in the VPPA is clear and enumerated in the plain text meaning of the statute itself: that Salazar was a consumer under the VPPA because he subscribed to a VTSP’s goods or services when he subscribed to the online newsletter.
3. Paramount’s Brief: Paramount argues that the VPPA should be narrowly construed to require that the individual subscribe to audiovisual goods or services to meet the definition of a “consumer.” Paramount alleges that “Salazar seeks to transmogrify [the VPPA] into a prohibition against targeted advertising on the internet.”

Circuit courts are divided over the definition of “consumer” under the VPPA

Circuit courts remain divided over whether individuals can be classified as consumers under the VPPA if the content they purchase, rent, or subscribe to is not strictly audiovisual. The VPPA defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Circuit courts have interpreted this clause narrowly and broadly to either limit or extend the VPPA’s scope to all forms of content that video tape service providers may feature on their subsidiary websites. While the varied circuit splits provide some direction for the Supreme Court, they also present challenges in resolving the narrow, context-driven interpretation of VPPA consumers against the broader, literalist interpretations of the statute.

Multiple circuits have a adopted a broad, modernized view of consumers under the VPPA

The Second Circuit leads in its broad interpretation of the VPPA, with the Seventh Circuit reinforcing this interpretation

The Second Circuit undertakes a literalist reading of the VPPA, broadly applying its plain text interpretation of § 2710(a)(1) of the VPPA to consumers who rent, purchase, or subscribe to any goods or services from a video services provider. The Court’s decision in Salazar v. National Basketball Association, 118 F.4th 533 (2d Cir. 2024) is emblematic of this approach, with the Second Circuit classifying Salazar (the same named plaintiff as in Salazar v. Paramount Global) as a consumer when he exchanged his email address and other personal information while subscribing to the NBA’s free online newsletter on NBA.com. While browsing the website, the plaintiff alleged that the NBA installed a Meta Pixel that collected and disseminated his video viewing patterns to Meta without his consent or knowledge. The Court found that the NBA’s practices violated the VPPA. Additionally, this decision considered Salazar a “subscriber” of the NBA’s goods or services through the online newsletter, and that the NBA was a “video tape service provider” because the company featured video content on its website.  Despite the NBA’s claims that Salazar was not a consumer on grounds that its online newsletter was not an audiovisual good or service, the Court held that Salazar was in fact a consumer even if the services he subscribed were not directly audiovisual in nature. The Second Circuit solidified that the NBA’s VPPA violation constituted a concrete injury that was particularized to Salazar’s privacy interests, analogizing the NBA’s conduct to the common law analog of public disclosure of private facts when the company disclosed the plaintiff’s private viewing information to third parties without his consent.  

The Seventh Circuit built on this momentum with similar logic in its Gardner v. MeTV National Ltd. Partnership, 132 F.4th 1022, 1023 (7th Cir. 2025) decision. There, the Court adopted a plain-text and expansive view of § 2710(a)(1)’s consumer definition by asserting that the scope of “goods and services” within the VPPA should not be limited to audiovisuals in order for consumers to be protected by the statute. So long as the defendant is a video tape service provider, and an individual exchanges their personal data to subscribe to some form of the VTSP’s services, this conduct may be regulated under the VPPA.

These cases expanded the scope of consumer protections afforded to plaintiffs under the VPPA. The Second Circuit enforced important guardrails on third-party data collection and disclosure. Even if a company’s data collection practices are tangentially related to the video services it provides on its websites, companies should still center a consumer’s consent and understanding of how their data may be used or intercepted. In doing so, the Second Circuit’s restrictions on third-party data tracking reinforce greater transparency obligations on video service providers, which extends to all forms of their multi-media content embedded in their websites and platforms. The Second and Seventh Circuit’s broad and literalist applications of the VPPA to both audiovisual and non-audiovisual goods and services rebut arguments from big tech and other large corporations that contend that the VPPA’s scope should be restricted. While the VPPA was enacted during a time when video service providers primarily only provided audiovisual goods and services, both circuits’ broad application of the VPPA reinforces that the statute applies to modern digital platforms.

Some courts have also held that users who subscribe to websites that feature video content can be classified as consumers under the VPPA

Courts have relied on the Second and Seventh Circuits’ broad interpretations of the VPPA to explain that an individual does not have to make monetary purchases to be classified as a subscriber, and in turn a consumer, under the VPPA. As was the case in the Gardener and Salazar v. NBA decisions, courts in the First and Eleventh Circuits have similarly affirmed that individuals may be classified as “subscribers” of a video provider’s goods or services so long as they exchange their personal information in order to access the relevant content. According to the Eleventh Circuit inEllis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015), a subscription “involves some type of commitment, relationship or association (financial or otherwise) between a person and an entity.” There, the Court explained that payment is not a necessary element of subscription, though it may be a relevant factor in evaluating whether an individual can be considered a subscriber under the VPPA. The First Circuit mirrored this standard inYershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016), holding that a relationship between a subscriber and a video provider exists from the moment an individual exchanges their personal information to access a video provider’s goods or services. That relationship is sufficient to classify an individual as a subscriber and consumer under the VPPA.

While the Ninth Circuit has yet to define “subscribers” under the VPPA like other circuits have, California district courts have relied on similar reasoning articulated by the First, Second, and Eleventh Circuits to validate plaintiffs’ claims under the VPPA at the motion to dismiss stage. In Mata v. Zillow Grp., Inc., No. 24-CV-01095-DMS-VET, 2024 U.S. Dist. LEXIS 229061 (S.D. Cal. Dec. 18, 2024), the Southern District of California argued that Zillow violated the VPPA by using third-party pixels to track the plaintiff’s website browsing patterns on its website without his consent. There, the Court took an expansive view in classifying Zillow as a video provider on grounds that the company’s business model leverages audiovisual technology to advertise its for-sale properties available for lease on its website using “video content.”  The Court affirmed that the plaintiff adequately pled that he was a subscriber of Zillow’s website, and thus a consumer under the VPPA because he registered for and created a Zillow account, and in turn used that account to access Zillow’s video content and property listings. The Court went on to clarify that while the plaintiff here did not pay money to create his Zillow account, the sharing of his personal information including his email address and Facebook ID to register was sufficient grounds to classify him as a subscriber of Zillow’s goods and services.

A common thread in these cases is that the courts clarified that subscriptions are premised on a consumer’s commitment or agreement to exchange their personal information with a video service provider. Beyond the regulation of audiovisual content, it’s the protection of one’s personal information—irrespective of the form the content that individuals may access or subscribe to—that multiple circuits prioritize in their broader application of the VPPA. These assertions are mirrored in EPIC’s brief in support of Salazar in the pending case before the Supreme Court. Several circuits reinforce that the VPPA may be read plainly to protect the personal data of consumers on digital platforms that provide both video and non-video content.

Other circuits have construed a narrow meaning of “consumer” to limit the VPPA’s scope

The Sixth Circuit and D.C. Circuit have rejected interpretations of the VPPA “consumer” definition that would include subscribers of non-audiovisual content

As seen in the Salazar v. Paramount appeal, the Sixth Circuit opined that the definition of a consumer under the VPPA should be restricted to individuals who subscribe only to audiovisual services. The Court’s interpretation of “consumer” effectively limited the VPPA’s application to businesses that more traditionally rented, sold, or delivered audiovisual materials, and did not necessarily extend to the tangential digital services that video tape service providers may feature on their websites and other platforms. The Sixth Circuit determined that the VPPA would otherwise be divorced from its original purpose of protecting video privacy if applied to non-audiovisual goods or services.

The D.C. Circuit solidified this dividing line from the broad, literalist-view circuits in its decision in Pileggi v. Washington Newspaper Publishing Company LLC,146 F.4th 1219, 1223 (D.C. Cir. 2025). There, the D.C. Circuit held that the news magazine and website Washington Examiner disclosing the plaintiff’s personal information via pixel tracking software did not violate the VPPA. The Court reasoned that the plaintiff’s interpretation of the VPPA was overly broad because she did not register for any subscriptions on the website. The Court went on to say that she could not be considered a consumer under the VPPA solely because she accessed the Washington Examiner’s website. Importantly, the Court held that without any direct audiovisual subscriptions on the website, that the plaintiff’s personal viewing information was not unlawfully intercepted by the defendant. On these grounds, the Court granted the defendant’s motion to dismiss, without addressing the fact that the Washington Examiner collected other forms of sensitive information from the plaintiff, including her IP address, by way of her interactions with the platform’s video and non-video content.

The Eleventh Circuit further clarified that “subscribers” need to have an ongoing commitment, relationship, or association with video providers

While the Eleventh Circuit held that subscribers, and therefore consumers, may be protected by the VPPA through some kind of commitment, relationship, or association between an individual consumer and the subscription provided by a video tape service provider, in Ellis v. Cartoon Network, the Eleventh Circuit ultimately dismissed the plaintiff’s class action because he did not pay, register, or create an account while using the Defendant‘s Cartoon Network app. While the Court acknowledged that the plaintiff not paying to view Cartoon Network’s videos on its app does not prevent him from being a subscriber under the VPPA, the Court went on to say that “merely downloading the CN app for free and watching videos at no cost does not make him a ‘subscriber’ either.” In other words, while payment for a video provider’s goods or services is not always a determining factor for whether an individual can be classified as a subscriber, the Eleventh Circuit delineated that plaintiffs would need to demonstrate more than basic website or app navigation to be considered a video-viewing subscriber for the purposes of the VPPA. The Court cited to the Southern District of New York’s reasoning in Austin-Spearman v. AMC Network Entm’t LLC, 98 F. Supp. 3d 662, 669 to explain that a subscriber should retain a “deliberate and durable affiliation with the provider” through an ongoing relationship, regardless of the nature of the exchange or whether an individual paid for a video provider’s subscription.

The Eleventh Circuit’s decision in Ellis establishes boundaries for the scope of the definition of subscribers and consumers under the VPPA. But the Court’s decision does not address how users of free applications are tracked without having an opportunity to meaningfully consent to third-party data disclosures with respect to a consumer’s personal viewing habits. Under this approach, when plaintiffs who are not considered subscribers, their video viewing habits are outside of the VPPA’s scope and unprotected by the statute.

Conclusion

The Supreme Court has an opportunity to apply the text of the VPPA to modern tracking technologies, social media, and digital streaming platforms to protect consumers from the very invasions of privacy that the law was originally intended to protect. It is evident that courts are divided on the narrow versus plain-text meaning of the statute. However, as seen in several circuits, the VPPA can be interpreted as the text suggests to protect the fundamental privacy rights of individuals and to counter the extensive web monitoring and tracking of consumers.