Supreme Court to Revisit the Definition of “Consumer” Under the VPPA — And Why It Matters for Modern Privacy Law

Written by: Lee Merreot, Esq., CIPP/US, CIPP/E, CIPM, CDPO

In a digital environment where every interaction can generate a trail of personal data, the question of who qualifies as a “consumer” for purposes of privacy protections has become more consequential than ever. This term—seemingly straightforward—has taken center stage in the U.S. Supreme Court’s decision to review Salazar v. Paramount Global, a case that could reshape the contours of privacy law in the United States.

The case arises under the Video Privacy Protection Act (VPPA), a 1988 federal statute born from a scandal involving the release of Supreme Court nominee Robert Bork’s video rental records. Although passed in a different technological era, the VPPA continues to influence litigation involving modern digital tracking technologies. Now, with the Supreme Court’s grant of certiorari, the nation’s highest court will confront deep uncertainty surrounding the interpretation of “consumer” in an age where video content is ubiquitous, free, and seamlessly intertwined with analytics and advertising systems.

This blog provides a comprehensive analysis of the case, its broader legal backdrop, and the far‑reaching implications for both individuals and organizations navigating today’s privacy landscape.

I. What Is Happening? An Overview of the Salazar Case

On January 26, 2026, the U.S. Supreme Court agreed to hear the question of whether a website user who signs up for a free digital newsletter can qualify as a “consumer” under the VPPA. The case stems from allegations that Paramount Global, through its 247Sports.com platform, transmitted a user’s Facebook ID and video‑viewing history to Meta via tracking pixels embedded on the site.[1]

Michael Salazar, the plaintiff, subscribed to a free email newsletter and viewed video clips on the sports website. According to his claim, the website’s use of Meta Pixel technology resulted in the unauthorized disclosure of his identifiable video‑watching data to Facebook without the consent required under the VPPA.[2]

The Sixth Circuit Court of Appeals ruled against Salazar, holding that he did not meet the definition of a “consumer” because he had not rented, purchased, or subscribed to actual audiovisual goods or services as envisioned by the statute (turn1search8; turn1search9). In contrast, the Second Circuit previously held differently in a related case involving the NBA, permitting similar VPPA claims to move forward. The plaintiff in this case was also Michael Salazar. This ruling highlights a clear circuit split ripe for judicial clarification.[3]

With the Supreme Court’s grant of certiorari, the justices will now determine whether the VPPA’s protections extend to individuals who merely sign up for free digital content and are subsequently tracked across platforms.

II. Why This Case Matters: The Deeper Legal and Policy Implications

The VPPA was enacted at a time when “video tape service providers” literally maintained physical records of customer rentals. Today, however, virtually every online interaction involves some form of video content, whether it is a three‑second sports clip, a livestream, or embedded media used for marketing.

The central question in Salazar—what counts as “subscribing” to a service—has massive implications. If the Court holds that subscribing to a free newsletter that incidentally includes access to videos does not satisfy the statutory definition, this could dramatically narrow the reach of a law that plaintiffs’ attorneys frequently rely on in digital privacy litigation.

Conversely, a broader interpretation could extend privacy protections to millions of users who engage with free‑to‑access digital media, reshaping compliance obligations for platforms of all sizes. As USA Today notes, Salazar argues that Congress’s primary intent was protecting Americans’ ability to control their private information, not merely regulating video rental histories.[2]

From our perspective as privacy and data security attorneys, the Court’s interpretation will carry significance far beyond the VPPA. It will influence:

• How courts interpret consumer protection statutes written before the digital age.
• Whether “free” digital users deserve the same statutory protections as paying subscribers.
• How companies should structure consent workflows, tracking technologies, and data sharing practices.

This case will test the judiciary’s willingness to adapt older privacy statutes to modern technologies, a theme the Supreme Court has grappled with repeatedly in recent years.

III. Lower Court History and Related Rulings

To fully appreciate the importance of the Supreme Court’s impending decision, it is crucial to consider the divergent rulings in lower courts that have created legal uncertainty.

A. The Sixth Circuit’s Narrow Interpretation

The Sixth Circuit held that because Salazar did not subscribe to a paid audiovisual service, he lacked VPPA “consumer” status. It concluded that a newsletter providing incidental access to video clips is not equivalent to subscribing to “goods or services in the nature of video cassette tapes or similar audiovisual materials”[1]. This narrow view emphasizes the statute’s historical context — the era of video rental stores.

B. The Second Circuit’s Broader Interpretation

The Second Circuit, however, has adopted a broader interpretation in a related Salazar case involving the NBA. It found that the VPPA does not necessarily require payment or a subscription specifically dedicated to video content.[4] This aligns with a more modern understanding of online media consumption where video is often a feature rather than a standalone product.

C. SCOTUSblog Summary of Conflict

SCOTUSblog reports that the Supreme Court accepted the case specifically to resolve this divide in how federal appeals courts interpret the statute.[3] This conflict underscores the need for clarity in applying a 1988 law to new digital contexts where video is increasingly embedded in content marketing, analytics, advertising, and user engagement tools.

IV. Broader Implications for Individuals and Organizations

The Supreme Court’s forthcoming decision will likely have widespread ripple effects across the privacy landscape.

A. Impact on Individuals / Consumers

A broader definition of “consumer” would give every day internet users greater recourse when companies share their video‑related data with third parties. Because many websites now utilize tracking pixels and analytics tools that capture video interactions, even accidental or brief video viewing could trigger VPPA protections.

If the Court adopts a narrower definition, however, many people’s data‑sharing activities — especially on free, ad‑supported platforms — may fall outside the statute’s guardrails. This could leave users with fewer privacy protections and limited remedies against unauthorized data sharing.

B. Impact on Organizations

From a business perspective, the stakes are significant:

1. Compliance Requirements

A broader interpretation could require organizations to re‑evaluate:

• Their use of cross‑platform tracking tools such as Meta Pixel
• How they classify users of free services
• Whether they need to obtain explicit consent for video‑tracking practices

Many businesses misunderstand the VPPA as an antiquated “Blockbuster‑era statute,” but as JURIST notes, the law continues to be invoked for digital‑age privacy claims involving tracking pixels and advertising technology.[1]

2. Litigation Risk

The VPPA carries statutory damages of $2,500 per violation, making it a favorite statute for class action litigators. Depending on how the Court rules:

• Companies may face a surge in lawsuits involving free content.
• Platforms may need to deploy more robust opt‑in workflows.
• Organizations may need to reduce or redesign how they integrate social media tracking tools.

3. Data Governance Practices

This ruling also intersects with broader trends in data governance. Many companies already face heightened scrutiny for data minimization, third‑party sharing, and pixel tracking, particularly under state privacy laws (e.g., California, Colorado) and international frameworks. A broad VPPA interpretation would add yet another layer of statutory exposure.

V. The Case Within the Larger Privacy Landscape

The Supreme Court’s engagement with the VPPA fits into a pattern of recent rulings that attempt to modernize legal doctrines in light of evolving technologies.

For example, in Carpenter v. United States (2018), the Supreme Court recognized that obtaining detailed historical cell‑site location information constitutes a search under the Fourth Amendment. One of the challenges described in subsequent commentary is that older analog‑era legal doctrines cannot be simply “mechanically applied” to new categories of sensitive digital data.[5]

This broader theme resonates with the issues at stake in the Salazar case:
Can a law written in 1988 meaningfully regulate data flows involving embedded pixels, behavioral analytics, and cross‑site identifiers?

The Court’s decision will signal how willing it is to interpret legacy privacy statutes in a technologically neutral manner that keeps pace with the modern digital ecosystem.

VI. What Organizations Can Do Now

While we await the Supreme Court’s ruling, organizations can take proactive steps to reduce risk:

• Audit tracking technologies, including embedded pixels, SDKs, and analytics scripts that collect video‑interaction data.
• Evaluate consent mechanisms for free‑to‑access users, not just paid subscribers.
• Review data sharing agreements with third parties, particularly advertising and analytics providers.
• Prepare contingency plans in case the Court adopts a more expansive definition of “consumer,” which could broaden VPPA compliance obligations.

As always, organizations that invest early in privacy‑by‑design practices will be better positioned to adapt to evolving legal standards.

VII. The Beckage Firm: Here to Help Organizations Navigate Modern Privacy Law

At The Beckage Firm, we are continuously monitoring developments in privacy law, including emerging Supreme Court cases that may redefine longstanding statutory frameworks. The Salazar v. Paramount decision will have far‑reaching consequences for digital privacy compliance strategies, consumer data practices, and litigation exposure.

Whether your organization handles large volumes of consumer data, deploys third‑party tracking technologies, or operates platforms involving any form of video content, our team of data security and privacy attorneys can help you assess compliance risks and build resilient, future‑ready privacy programs.

If your organization needs legal guidance, a VPPA compliance assessment, or broader support in navigating state, federal, or international privacy obligations, please contact us. We stand ready to provide experienced, practical, and strategic counsel.

 

**Attorney Advertising: Prior results do not guarantee future outcomes**

Footnotes

• JURIST, US Supreme Court to decide if 1988 video tape privacy law applies to Internet uses (Jan. 26, 2026). [jurist.org]

 

1. 1. USA Today, How does video privacy law apply to modern era? Supreme Court to decide (Jan. 26, 2026). [usatoday.com]

1. 1. Yahoo!/SCOTUSblog summary, Supreme Court agrees to hear case on digital privacy (Jan. 26, 2026). [yahoo.com], [scotusblog.com]

1. 1. Justia U.S. Law, Salazar v. NBA, No. 23-1147 (2d Cir. 2024) (Oct. 15, 2024). Salazar v. NBA, No. 23-1147 (2d Cir. 2024) :: Justia

1. ACLU, The Supreme Court’s Most Consequential Ruling for Privacy in the Digital Age (Carpenter analysis). [aclu.org]