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On January 26, 2026, the U.S. Supreme Court granted certiorari in Salazar v. Paramount Global, No. 25-459, to resolve a growing circuit split over who qualifies as a "consumer" under the Video Privacy Protection Act (VPPA). The petition asks whether the VPPA protects individuals who subscribe only to nonaudiovisual content—such as a free newsletter—from a company that also offers video programming.
Background
Congress enacted the VPPA in 1988 following the publication of Supreme Court nominee Robert Bork's video rental records. The statute restricts "video tape service providers" from knowingly disclosing "personally identifiable information" concerning their "consumers." A "consumer" is defined as "any renter, purchaser, or subscriber of goods or services from a video tape service provider." 18 U.S.C. § 2710(a)(1).
Plaintiff Michael Salazar subscribed to a free email newsletter offered through Paramount's 247Sports website. He alleged that Paramount's use of a third-party tracking technology enabled the company to share his video viewing information and personal data with the third-party company without consent. The district court dismissed the complaint, and the Sixth Circuit affirmed, holding that Salazar was not a VPPA "consumer" because he subscribed only to a newsletter and not to audiovisual materials.
The Circuit Split
The appellate courts have taken divergent approaches to defining "consumer" under the VPPA. The Second Circuit, in a separate case brought by the same plaintiff against the NBA, held that an individual becomes a consumer by subscribing to any goods or services from an entity that provides video content—regardless of whether the subscription relates to audiovisual material. Salazar v. Nat'l Basketball Ass'n, 118 F.4th 533 (2d Cir. 2024). The Seventh Circuit reached the same conclusion in Gardner v. Me-TV Nat'l Ltd. P'ship, 132 F.4th 1022 (7th Cir. 2025).
The Sixth Circuit, in the decision now before the Supreme Court, adopted the opposite view, joined by the D.C. Circuit in Pileggi v. Nat'l Republican Senatorial Comm. Under that approach, an individual is a "consumer" only if the subscription relates to goods or services "in the nature of 'video cassette tapes or similar audio visual materials.'" In other words, a newsletter subscriber—even one who happens to watch videos on the site—does not qualify.
What's at Stake?
The VPPA authorizes statutory damages of $2,500 per violation, which has fueled a significant volume of class litigation in recent years. A broader reading of "consumer" would expand potential exposure to companies that make video content available alongside unrelated products or services, even where users have never paid for—or expressly subscribed to—video material. A narrower interpretation would limit claims to individuals with a more direct relationship to a provider's video offerings.
The Court's resolution may also affect ongoing litigation involving tracking pixels and analytics tools where plaintiffs allege that viewing data is shared with third parties. For businesses that have seen VPPA claims proliferate—frequently targeting routine analytics practices with the threat of statutory damages—the Court's decision may bring welcome clarity to a statute that has increasingly been invoked outside its original context.
For More Information
If you have any questions about this Alert, please contact J. Colin Knisely, Michael S. Zullo, any of the attorneys in our Website Accessibility and Privacy Compliance Litigation Group, any of the attorneys in our Technology, Media and Telecom Industry Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
