Opinion: The Supreme Court Must Not Let a 1988 Privacy Law Shrink to Fit Big Tech

On Wednesday morning, the Supreme Court spent an hour parsing a federal statute written for VHS cassettes to decide whether it still means anything for anyone who watches a video online. The case, Salazar v. Paramount Global, was argued before the justices on October 14 as the final case on the Court's October sitting, and it turns on a single word — "consumer." The answer will tell tens of millions of ordinary website visitors whether a 38-year-old law written after a Supreme Court nominee's video-rental history leaked to a reporter has anything useful to say about the Meta Pixel quietly logging what they watch today.

The Court should read the Video Privacy Protection Act as Congress wrote it, not as the online advertising industry wishes it had been written. A cramped reading of "consumer" — limiting the law's protection to people who specifically subscribe to video content, as the lower courts held — would hollow out one of the only federal privacy statutes with real financial teeth, at the precise moment the surveillance-advertising economy has made its protections more necessary than they were in 1988.

A law built for Blockbuster, tested by a tracking pixel

The facts are almost comically modern against a statute that predates the commercial internet. In 2022, Michael Salazar signed up for a free email newsletter from 247Sports.com, a college-sports recruiting site owned by Paramount Global. While logged into Facebook, he watched recruiting videos on the site. Paramount, Salazar alleges, had installed Meta's tracking pixel on its pages without separate consent, and the pixel sent Facebook his Facebook ID along with the title and web address of every video he watched — data Meta could use, and allegedly did use, to help target ads back at him.

Salazar sued under the Video Privacy Protection Act, a statute Congress passed in 1988 after a reporter obtained and published the Blockbuster-era rental history of Judge Robert Bork during his ill-fated Supreme Court confirmation. Paramount's own merits brief recounts the law's origin story in some detail: a video store clerk handed over the titles of 146 films the Bork family had rented, and a Senate committee separately heard testimony about a divorce lawyer who subpoenaed a husband's rental records to argue he was an unfit father, and about government investigators who informally sought out people's video-viewing habits. Congress responded by giving "consumers" of video services a private right to sue for disclosure of their viewing history, with statutory damages of at least $2,500 per violation, punitive damages and attorney's fees.

What "consumer" means now decides what privacy means online

Everything in the case hangs on how broadly that word reaches. A federal judge in Nashville dismissed Salazar's suit, reasoning that a "consumer" under the Act must be a subscriber of audiovisual content specifically, and that signing up for a sports newsletter does not qualify. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, holding 2-1 that the statutory phrase "goods or services from a video tape service provider" is implicitly limited to goods or services related to video, with Judge Helene White dissenting on the ground that the majority had added a restriction Congress never wrote into the text. Salazar's reply brief presses exactly that point: the statute says "goods or services," full stop, and courts have no license to insert the word "audiovisual" where Congress left it out. The Sixth Circuit's reading also put it at odds with how other circuits have approached similar pixel-tracking suits, which is part of why the Supreme Court agreed to resolve the question after granting Salazar's petition for certiorari on January 26.

This is not an abstract textual puzzle. Hundreds of similar suits against streaming apps, news sites, retailers and sports outlets that embed video and run analytics pixels have been filed or stayed pending the outcome. A ruling that "consumer" means only people who transact specifically for video would let any site that doesn't sell videotapes outright — which, in 2026, is nearly every site with an embedded player — disclose viewers' watch histories to Facebook, Google or data brokers with no exposure under the one federal law written expressly to prevent that. A ruling the other way would mean ordinary newsletter subscribers, logged-in app users and anyone else with an account on a site that happens to host video remain protected, regardless of why they created the account in the first place.

Industry's fear is really a liability argument in a privacy costume

Paramount is not fighting alone. The U.S. Chamber of Commerce, Meta Platforms, the Motion Picture Association, the News/Media Alliance and several retail trade groups all filed amicus briefs warning that a broad reading would be ruinous. The Chamber's brief, as MediaPost reported, calls a wide interpretation "a sweeping and harmful transformation of the internet" that would expose countless ordinary websites to class-action liability for routine analytics tools Congress never contemplated regulating. Meta's own brief argues that pixel-based analytics "play a vital role in today's online ecosystem" and asks the Court to "stem the tide of lawsuits."

Those warnings deserve to be taken seriously, but not at face value. Privacy advocates, including the Electronic Privacy Information Center in a brief filed with technical experts and legal scholars, counter that media companies have perfectly workable alternatives to pixel-based tracking, including contextual advertising that does not require exporting a reader's identity and viewing history to a third party. If that is right, the industry's "unworkable internet-privacy regime" argument is less a statement about technological necessity than a complaint about which business model the statute makes more expensive. A liability fear is a legitimate thing for Congress to weigh when it amends a statute. It is a much weaker reason for a court to rewrite one.

Affected parties extend well beyond the two companies in the caption:

• Streaming and sports-media sites that embed video alongside logged-in accounts, newsletters or fantasy leagues
• News publishers that run autoplay video next to articles behind a free registration wall
• Retailers and consumer brands that use product-demo video paired with site pixels for ad retargeting
• Ordinary internet users whose viewing habits are the raw material for inferences about politics, health, sexuality and parenting that a 1988 Congress tried to put off-limits

Paramount's own merits brief, in making its case for a narrow reading, inadvertently makes the opposing argument's best point.

Congress enacted the VPPA in response to disclosures of video-rental records — most notoriously the publication of Judge Bork's family video-rental history, which was seen as a serious breach of personal privacy. No one cared about Judge Bork's purchases of bandanas or recliners.

That line is meant to show the statute cares only about video, not groceries. But it just as easily shows what actually alarmed Congress: not the commercial fact of a transaction, but the intimate inferences — about a judge's character, a parent's fitness, a person's private life — that flow uniquely from knowing what someone watches. A newsletter subscriber whose Facebook ID gets attached to his recruiting-video history is exposed to exactly that kind of inference, whether or not he ever rented a bandana.

What should happen now

The justices should affirm the statute's plain words: a "consumer" is anyone who rents, purchases or subscribes to goods or services from a video tape service provider, without an unwritten audiovisual qualifier, and courts should let Congress — not litigants' business plans — decide if that definition needs narrowing. A decision is not expected before next spring or summer, and until then the circuit split leaves website operators guessing and plaintiffs' lawyers filing protective suits in whichever circuit reads the law most favorably. Congress could resolve the ambiguity itself by amending the 1988 text for the pixel era, but no such bill is moving, which means the Court's answer will function, for practical purposes, as the country's privacy law for video for years to come. A law that began with a judge's bandana jokes deserves a reading broad enough to matter in an internet economy Congress never saw coming.