The Supreme Court has been asked to solve a thoroughly modern problem with a law written when returning a videotape without rewinding it counted as a civic offense. Strangely enough, the old law may be doing just fine. The harder question is whether courts will let its plain privacy promise survive contact with the online advertising industry.
The justices heard arguments Wednesday in Salazar v. Paramount Global, a case involving the Video Privacy Protection Act of 1988. Congress passed that law after a reporter published Supreme Court nominee Robert Bork’s video-rental history, inspiring the rare bipartisan realization that a person’s viewing habits are nobody else’s complimentary appetizer.
Michael Salazar says Paramount disclosed his video-viewing history from 247Sports.com to Facebook without his consent. According to the Associated Press, he subscribed to the site’s online newsletter and watched videos there. Paramount argues that this does not make him the kind of "consumer" covered by the statute because the subscription was not specifically for audiovisual material. Two federal appeals courts have read the definition broadly; two have read it more narrowly. The Supreme Court will settle the split. It has not yet ruled.
The Technology Changed, The Intrusion Did Not
Corporate lawyers love to describe privacy laws as dusty antiques whenever the law interferes with a fresh revenue stream. Yes, Congress wrote the VPPA before streaming, tracking pixels and personalized ad auctions. Congress also wrote it broadly enough to cover knowing disclosure of personally identifiable viewing information. The statute’s age is not proof of irrelevance. Sometimes it is proof that lawmakers recognized the principle before Silicon Valley invented twenty-seven more efficient ways to violate it.
Paramount’s position deserves to be stated accurately. The company says 247Sports is a news site that offers free clips alongside articles and photos, not a video-rental business, and that Salazar’s newsletter subscription does not qualify. That is a legal argument about the statute’s scope, not a declaration that privacy has no value.
But the narrower reading creates a loophole big enough to drive an ad exchange through. If protection depends on whether the customer paid for the video itself, companies can bundle video with newsletters, memberships, loyalty programs or access to other services and insist the viewing trail fell out of Congress’s chosen box. The consumer experiences the same disclosure. Only the corporate paperwork changes outfits.
Consent Is Not A Revolutionary Technology
During argument, Justice Elena Kagan offered a radical proposal: get consent or stop selling private information. This apparently startled the defense into imagining paywalls everywhere, as if the only business models available are surveillance or starvation.
Real consent is not the forty-seventh toggle buried under "manage preferences." It should be clear, specific and revocable. Companies should explain what data leaves the site, where it goes and what it will be used for. A person reading sports news should not need a privacy-law fellowship to avoid becoming raw material for targeted advertising.
The Court should resolve the statutory question honestly, and Congress should update privacy law no matter who wins. Americans need a comprehensive baseline that protects sensitive data across platforms instead of a patchwork built around video stores, health apps, phone records and whichever scandal finally embarrassed lawmakers into action.
The VHS tape may be obsolete. The basic proposition is not: watching something does not make your identity part of the bonus content.