On Monday, January 26, the US Supreme Court agreed to take up a case about the breadth of the Video Privacy Protection Act (VPPA). That federal statute prohibits a “video tape service provider” from “knowingly disclos[ing]” “personally identifiable information” that concerns “any consumer of such provider,” except in several circumstances, like when the consumer has consented.¹ Though the statute was enacted decades ago in an age of brick-and-mortar video stores, in recent years, website operators have faced a slew of VPPA lawsuits challenging their use of pixels, cookies, and other web-tracking technologies. Plaintiffs in these cases theorize that the use of these tools by businesses that deliver audiovisual content violates the VPPA by collecting and disclosing users’ video-viewing histories.

In response to this influx of suits, several federal courts of appeals have gravitated toward narrower readings of the VPPA but have relied on different elements of the statute to do so. As we discussed last October, some courts have focused on what qualifies as “personally identifiable information,” while others have focused on who counts as a “consumer.” On both issues, circuits have split. On Monday, the Supreme Court positioned itself to weigh in on the consumer question by granting certiorari in Salazar v. Paramount Global, No. 25-459. 

The VPPA confers a federal right of action only to aggrieved “consumers.” The VPPA defines “consumer” to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”² The question presented in Salazar is whether the “goods or services” consumed encompass all of a video tape service provider’s goods or services or only its audiovisual goods or services.

Salazar comes to the Court from the Sixth Circuit, which held that the goods or services consumed must themselves be audiovisual.³ Michael Salazar sued Paramount under the VPPA, claiming that Paramount used pixel technology to track and disclose users’ identities and video-viewing information when they visited 247Sports.com, a Paramount-owned website that reports on college sports recruiting.⁴ Salazar watched videos on 247Sports.com but did not purchase, rent or subscribe to them; rather, Salazar argued that he became a VPPA consumer by subscribing to the website’s online newsletter.⁵

The issue for Salazar, however, was that the newsletter was not audiovisual.⁶ So the Sixth Circuit had to address whether Salazar qualified as a VPPA consumer even though he did not subscribe to an audiovisual good or service.⁷ To answer that question, the Sixth Circuit emphasized context, which, according to the Sixth Circuit, signaled “an association between the terms ‘goods or services’ and ‘audio visual materials.’”⁸ After all, the VPPA “focuses on privacy protections for records of transactions related to audio-visual goods and services.”⁹ So the most natural and contextual reading, said the Sixth Circuit, “shows that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”¹⁰

Not all circuits have agreed. On one side, the D.C. Circuit has gone even a step further. In Pileggi v. Washington Newspaper Publishing,¹¹ it ruled that even consuming audiovisual materials is not enough; rather, “the videos for which viewing history is disclosed must be the same video materials or services that the individual purchased, rented, or subscribed to.”¹² On the other side, in Salazar v. National Basketball Association¹³—another case brought by the same Michael Salazar now before the Supreme Court—the Second Circuit held that the VPPA covers people who rent, purchase, or subscribe to any good or service provided by a video tape service provider, even if the good or service is not itself audiovisual.¹⁴ The Seventh Circuit concurred in Gardner v. Me-TV National Ltd. Partnership.¹⁵ Instead of adopting a narrow reading of “consumer,” the Second Circuit determined in Solomon v. Flipps Media¹⁶ that the type of information protected—“personally identifiable information”—is what modulates VPPA liability.¹⁷ Other circuits are poised to join the fray. Indeed, the Ninth Circuit heard oral argument on the consumer question on August 12, 2025.¹⁸

Given the split circuits, it remains for the Supreme Court to decide who counts as a “consumer” protected by the VPPA.  As we discussed earlier this month, the Court declined to take up this question in December 2025 when it denied the cert petitions filed from the Second Circuit’s decisions in both Salazar v. NBA and Flipps Media. At the time, the previous cert denials might have been taken to mean the Court preferred to allow the issue to continue percolating in other circuits, but the more recent cert grant suggests that the Court may have been waiting for a cleaner vehicle, one presenting only the question of whether, to hold a private right of action under the VPPA, a person must purchase, rent, or subscribe to goods or services that are themselves audiovisual. With the issue now before the Supreme Court, we invite you to stay tuned by subscribing to the WilmerHale Privacy and Cybersecurity Law Blog.

Footnotes: 

1. 18 U.S.C. § 2710(b).
2. Id. § 2710(a)(1).
3. Salazar v. Paramount Glob., 133 F.4th 642, 650–651 (6th Cir. 2025).
4. Id. at 645.
5. Id. at 645–646, 649.
6. Id. at 652–653.
7. Id. at 649.
8. Id. at 650.
9. Id. at 651.
10. Id. at 650–651.
11. Pileggi v. Wash. Newspaper Publ’g Co., 146 F.4th 1219 (D.C. Cir. 2025).
12. Id. at 1237.
13. Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024).
14. Id. at 550.
15. Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022, 1025 (7th Cir. 2025).
16. Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025).
17. Id. at 54.
18. See Heather v. Healthline Media, Inc., No. 24-4168 (9th Cir. Aug. 12, 2025), ECF No. 32.