Supreme Court weighs who can sue under video privacy law in online tracking case
In short
The U.S. Supreme Court heard arguments on October 14 over how a 1988 video privacy law applies to modern online services. The case concerns a newsletter subscriber's allegations that Paramount shared his video-viewing history with Facebook without consent.
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The U.S. Supreme Court heard arguments on October 14 about who can sue under the Video Privacy Protection Act of 1988 when companies share online video-viewing data. The case stems from a lawsuit against Paramount by a subscriber to a college sports newsletter. At issue is whether that subscriber qualifies as a consumer protected by legislation originally designed to safeguard video rental records. Coverage reported a split among lower courts over the scope of that protection. [ 2 , 3 , 4 , 8 ]
Salazar alleges that Paramount installed a Facebook tracking pixel on its website, allowing information including his video-viewing history to be shared without consent and used for targeted advertising. His lawyer, Joshua Hammack, told the justices that disclosures occurred constantly whenever someone watched a video on the site. He argued that Paramount could have avoided liability by obtaining consent. The statute defines a consumer as a renter, purchaser or subscriber of goods or services from a videotape service provider. [ 3 ]
The justices questioned how broadly that language should apply. Justice Clarence Thomas asked whether goods or services from a videotape service provider would naturally be understood as video-related services. Justice Elena Kagan said the statutory language was relatively clear and told Paramount lawyer Paul Clement that companies could obtain consent or stop selling people's private information. Clement responded that companies might put everything behind a paywall. The Seattle Times reported concerns about both targeted advertising and potential liability for websites offering free videos. [ 3 , 5 , 8 ]
Congress passed the law in 1988 after a journalist published details of Supreme Court nominee Robert Bork's video rentals during his Senate hearings. Consumer advocates argue that the legislation was written broadly enough to accommodate technological change. Critics argue that applying it broadly threatens revenue from targeted online advertising in ways Congress could not have anticipated. The Seattle Times reported that the outcome remained unclear after the 90-minute argument, with no apparent division along ideological lines. [ 5 , 8 ]
Why it matters
A ruling could resolve a split among lower courts over who qualifies for the law's protections. Coverage highlights the implications for online privacy, targeted advertising and companies offering free video content.
Key facts
- The Supreme Court considered the reach of the Video Privacy Protection Act of 1988 on October 14. [ 2 , 3 , 8 ]
- The dispute concerns whether a subscriber to a college sports newsletter counts as a protected consumer. [ 3 , 4 ]
- Salazar alleges Paramount used a Facebook tracking pixel to share his video-viewing history without consent for targeted advertising. [ 3 ]
- Lower courts are divided over how consumers qualify for the law's protections. [ 5 , 8 ]
- Justice Elena Kagan said companies could obtain consent or stop selling private information. [ 8 , 9 ]
Confirmed by several sources
Still unclear
- How broadly the Supreme Court will interpret the law's consumer protections. The Seattle Times reported no clear indication of the outcome after oral arguments.