For years, one of the most frequently litigated privacy laws has been the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710, a federal statute enacted in 1988 in response to the disclosure of then-Supreme Court nominee Robert Bork's videotape rental history by a video store to a reporter, who published the list. Despite its analogue origins, this decades-old statute has been used by the plaintiff's bar (incentivized by the VPPA's $2,500 per violation liquidated damages provision) in putative class action litigation brought against any business whose website contains playable videos and third-party cookies.
This past year, there were several significant court rulings in litigation under the VPPA. These decisions addressed hotly contested VPPA elements while also laying the foundation for a potential circuit split. Squire Patton Boggs' globally ranked "Elite" Data Disputes team is well experienced defending businesses and their data practices, including in the realm of VPPA litigation and (mass) arbitration. In this article, informed by our practical experience litigating and arbitrating VPPA cases, we:(I)provide a brief primer on VPPA elements and litigation theories,(II)cover a Second Circuit decision, and other district court decisions, on the definition of personally identifiable information under the VPPA(III)address decisions from the Sixth, Seventh, and D.C. Circuits on the scope of persons who can bring VPPA claims, and(V)give an update on a recent Eighth Circuit decision regarding which businesses are subject to the VPPA. These areas are all likely to bear upon VPPA claims and ongoing litigation in 2026, making this a must read for in-house counsel and practitioners in this space.
I. Background Regarding VPPA Elements and Litigation Trends
The VPPA prohibits [1] a "video tape service provider" from [2] knowingly [3] disclosing [4] "personally identifiable information" of [5] a "consumer," unless certain enumerated exceptions apply. 18 U.S.C. § 2710(b)(1). Although the terms "video tape service provider," "personally identifiable information," and "consumer" are all defined by the statute, the scope of these terms continues to be disputed.
The VPPA defines a "video tape service provider" as "any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials." § 2710(a)(4). "Personally identifiable information" is defined as including "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." § 2710(a)(3). Finally, "consumer" "means any renter, purchaser, or subscriber of goods or services from a video tape service provider." § 2710(a)(1).
The plaintiff's bar has sought to impose liability under the VPPA, including liquidated damages of $2,500, against website operators whose website contain playable videos and third-party cookies or pixels. Their theory is generally that (1) website visitors, or those with a website account, are "consumers" of the website's videos because they subscribe to the website's content, (2) the website operator is a "video tape service provider" because web videos are similar to video cassette tapes, and (3) websites with third-party cookies or pixels disclose "personally identifiable information" to the third-party operators in the form of user IDs and the URLs of webpages which contain videos.
II.Ordinary Person Standard for Personally Identifiable Information
The VPPA's definition of personally identifiable information—"information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider"—presents a problem when importing the VPPA into the context of the internet and other modern technologies. When the VPPA was enacted, it was easy to understand how an individual's name next to a list of movie titles on cassette tapes constituted personally identifiable information. But what if there is no recognizable name, but an IP address or a user ID? What if there's not a list of movies, but a list URLs with embedded videos?
In 2016, the United States Court of Appeals for the Third Circuit held that "personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual's video-watching behavior." Under this "ordinary person" standard, "digital identifiers like IP addresses" are not covered by the VPPA, although the Third Circuit left open the possible that "precise GPS coordinates or customer ID numbers[] may suffice."
In 2025, there were several decisions addressing whether this "ordinary person" standard applied outside of the Third Circuit, as covered in further detail below.
A. Second Circuit Endorses Ordinary Person Standard
In May, the Second Circuit—which oversees federal district courts in New York, Connecticut, and Vermont—adopted the Third Circuit's ordinary person standard for determining whether information is personally identifiable information under the VPPA. Solomon v. Flipps Media, Inc., 136 F.4th 41, 51–54 (2d Cir. 2025).
In its analysis, the Second Circuit emphasized three reasons supporting the ordinary person standard. First, the "more natural[]" reading of the statutory language did not include identifiers "decipherable only by a technologically sophisticated third party," although the Court acknowledged some ambiguity. Second, the VPPA's prohibition against knowingdisclosures suggested that liability should not turn on circumstances outside of the video tape service provider's control, namely "the level of sophistication of the third party" receiving information. Finally, the enactment and amendment history of the VPPA—including its rejection of amendments to define personally identifiable information to include IP addresses and digital identifiers—suggested that Congress intended the ordinary person standard.
Just one month after the Flipps Media decision, the Second Circuit applied its holding in affirming the dismissal of a VPPA claim against a professional sports league. In that case, the plaintiff argued that the defendant violated the VPPA by placing a pixel on the defendant's website and app that shared information with a social media company. The Second Circuit reiterated that "[Flipps Media] effectively shut the door for Pixel-based VPPA claims" and that a string of numeral in a social media ID is not information an ordinary person would readily be able to use to identify a person.
B. District Courts Outside The Second Circuit In 2025 However Question The Ordinary Person Standard
Not every court in 2025 followed the Second Circuit's approach. A few judges in district courts outside the Second and Third Circuit have rejected the ordinary person standard for personally identifiable information under the VPPA.
For example, in Manza v. Pesi, Inc., a judge in the Western District of Wisconsin rejected the ordinary person standard, concluding that the standard has "little textual basis." 784 F.Supp.3d 1110, 1119 (W.D. Wis. 2025). That decision criticized the Second and Third Circuits' reasoning for, among other reasons, relying on legislative history—including inaction by Congress—and for allowing video tape service providers to avoid liability for intentionally disclosing information about a consumer through use of an easily reversable look-up table. In the Court's view, applying that standard to the Judge Bork situation which prompted the enactment of the VPPA, "the video store would be free to disclose Judge Bork's rental history so long as the store matched that history with an ID number provided by the reporter instead of with the judge's name." Id. at 1123.
This year's district court decisions like Manza v. Pesi suggest that 2026 will still be an active area of VPPA litigation over the scope of the VPPA and application to modern technologies.
III.Circuit Split on Definition of "Consumer"
Under the VPPA, one of the necessary elements for a claim is that a plaintiff be a "consumer," meaning "any renter, purchaser, or subscriber of goods or services from a video tape service provider." § 2710(a)(1). One open question, however, is whether an individual is a "consumer" when the video tape service provider has multiple goods or services, and the individual did not rent, purchase, or subscribe to any videotapes. Circuit courts in 2025 came to different answers.
A. March: Seventh Circuit Says A Consumer Does Not Need to Buy or Watch Any Video from a Video Tape Service Provider
In late-March, the Seventh Circuit held that a plaintiff could be a "consumer" under the VPPA without ever buying or watching a video. Gardner v. Me-TV Nat'l Ltd. P'ship, 132 F.4th 1022 (7th Cir. 2025).
In Gardner, the defendant allegedly operated a website where any person, even without signing up, can watch classic TV shows. If a person created an account on defendant's website, they could receive reminders about TV schedules and other information on TV programs. Additionally, the defendant sold physical merchandise on its website.
The defendant moved to dismiss plaintiffs' VPPA claim on the basis that none of the plaintiffs were consumers, because none of them "subscribed" to the video services. After all, the classic TV videos were offered for free to anyone without signing up, which is not a "subscription."
The Seventh Circuit rejected defendant's argument, reasoning first that the creation of a website account constitutes a subscription, as the consumer provides information (like an email address) in exchange for service. 132 F.4th at 1024. The Seventh Circuit also held that it did not mater that the subscription was for services other than video services because "Nothing in the [VPPA] says that the goods or services must be video tapes or streams." Id. at 1025. Indeed, "[i]f plaintiffs had signed up and never watched a video, but had purchased a . . . sweatshirt or . . . coffee mug or . . . action figure . . . , then they would have purchased 'goods' from a 'video tape service provider.'" Id.
B.April: Sixth Circuit Rules that the Relevant Goods or Services Are Audiovisual
In April 2025, a divided Sixth Circuit expressly reached the opposite conclusion of the Seventh Circuit.
In that decision which concerned claims filed against an entertainment company, the plaintiff alleged that he was a "consumer" because he subscribed to defendant's online newsletter, and, separately, defendant's website had video content. The Sixth Circuit affirmed the dismissal of plaintiff's VPPA claim, holding that the plaintiff was reading the VPPA's words erroneously "in isolation." Emphasizing canons of statutory of construction which say that words are interpreted in connection with other words, the Sixth Circuit reasoned that "the terms 'goods or services' are linked to . . . 'audio visual materials.'"
Expressly rejecting the Seventh Circuit's reasoning, the Sixth Circuit concluded that an individual is not a consumer under the VPPA if he or she does not rent, purchase, or subscribe to audiovisual materials. Because the newsletter at issue were not audiovisual materials, plaintiff did not state a claim.
C. August: D.C. Circuit Expands Sixth Circuit's Reasoning as to Newsletters with Video Content
In August 2025, the D.C. Circuit adopted the Sixth Circuit's reasoning on the meaning of "consumer" under the VPPA in a similar newsletter case. Pileggi v. Washington Newspaper Publ'g Co., LLC, 146 F.4th 1219, 1232–1237 (D.C. Cir. 2025). The D.C. Circuit, however, had to address an alternative argument for consumer status: plaintiff alleged that the defendant's newsletter (which she subscribed to) "included embedded videos as well as links" to videos on the defendant's website. In other words, plaintiff argued that she subscribed to audiovisual services in the form of a newsletter.
The D.C. Circuit rejected plaintiff's position, reasoning that "[s]ubscribing to an e-newsletter that includes videos and video links, by itself, is not enough to make someone a 'consumer' under the Video Privacy Act." Id. at 1237. The problem for plaintiff was that the alleged disclosures of personally identifiable information by pixels that formed the basis of her VPPA claim were only from videos she watched on defendant's website—not videos embedded in or linked in the newsletter. Defendant's alleged disclosure of information from other videos that were not the subscribed to audiovisual materials were irrelevant.
At the end of 2025, there is a definite split in authority on the meaning of "consumer" under the VPPA. As more plaintiffs attempt creative pleading theories regarding newsletters and account creation, it is possible that 2026 will lead to even further entrenching of a circuit split on the VPPA, creating additional uncertainty for defendants targeted with such claims.
IV. Increasing Doubt on Breadth of "Video Tape Service Provider"
In the above cases, the defendant's operation of a website that hosted videos was assumed to make the defendant a "video tape service provider," defined as "any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials." 18 U.S.C. § 2710(a)(4). In 2025, there were significant judicial opinions questioning that assumption.
In a concurrence to the D.C. Circuit's August 2025 Pileggi v. Washington Newspaper case, Senior Judge Randolph expressed the opinion that the defendant—a news outlet with online and printed content—is not a "video tape service provider" under the VPPA. Judge Randolph reasoned that the statute's use of "similar" audiovisual materials was significant, and should not be equated with "other" or "any" audiovisual materials. To Judge Randolph, short online video clips are not similar to cassette tapes, as they operate in different manners: "Pre-Internet users obtained a physical object when they purchased or rented a video cassette tape; modem audiences click on a link and receive a stream of ones and zeros in response." 146 F.4th at 1239.
Earlier this month, the Eighth Circuit provided a different reason to conclude that not all website operators are video tape service providers. In Christopherson v. Cinema Ent. Corp., the Court affirmed a dismissal of a VPPA claim against a defendant movie theatre and held that the movie theater was not "engaged in the business" of renting or delivering audiovisual materials under the VPPA and thus not a "video tape service provider." No. 24-3042, 2025 WL 3512393, at *1 (8th Cir. Dec. 8, 2025). Noting that "engaged in the business of" was not defined in the VPPA, the Eighth Circuit used the ordinary definition of "regularly engaged in it for livelihood or gain." Id. at *3.
Applying this definition to a movie theatre, the Court concluded that the defendant was engaged "of selling tickets, screening movies, and perhaps offering concessions like popcorn and candy, not posting free movie trailers on their websites." Although the defendant's website might have movie trailer or other advertising, adopting such a standard under the VPPA would result in the extreme conclusion that "any business that posts video-based advertisements on its website" would be a video tape service provider. Id. at *4.
The Eighth Circuit's holding, as well as Judge Randolph's concurrence, may lead to more business-friendly holdings in 2026 that limit the VPPA to businesses like Blockbuster, and cut-off attempts to impose the VPPA on liability for all businesses with website videos.
V.Conclusion
The VPPA and its liquidated damages provision have presented substantial litigation and mass arbitration risk for all businesses. 2025 saw several decisions interpreting key elements of the VPPA, which in some instances have deepened circuit splits and created more uncertainty for nationwide companies. With this uncertainty and potential for multimillion-dollar class actions, we expect the VPPA to continue to be a hotly disputed statute in 2026. More court decisions in 2026 may have significant consequences on the shape and risk profile of future VPPA litigation.
Squire Patton Boggs, with its globally ranked "Elite" Data Disputes practices, can ensure companies stay help clients stay one step ahead in an environment of rapidly changing obligations and litigation/arbitration risk. Moving forward, be sure to stay tuned to Privacy World for all the latest developments in the VPPA litigation space.
And for more, stay tuned, Privacy World will be there to keep you in the loop.
Disclaimer: While every effort has been made to ensure that the information contained in this article is accurate, neither its authors nor Squire Patton Boggs accepts responsibility for any errors or omissions. The content of this article is for general information only, and is not intended to constitute or be relied upon as legal advice.
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