- within Antitrust/Competition Law and Immigration topic(s)
Key Takeaways
- The Supreme Court's agreeing to hear the appeal in Salazar v. Paramount Global will affect how your business can use website tracking tools: A broad interpretation of who is a “consumer” could create new legal risk for companies using standard analytics or ad pixels.
- The Supreme Court will decide who qualifies as a consumer who can bring claims under the Video Privacy Protection Act (VPPA): The key question: is signing up for a free newsletter create a “consumer” who can bring a claim?
- VPPA exposure for businesses is high, and claims based on tracking technology are trending upward: Many websites use Meta Pixel, 1 Google Analytics, and other trackers and many companies do not know these trackers are in their websites.
- VPPA cases are on the rise: Class action lawsuits argue that websites with embedded tracking tools like Meta Pixel result in unlawful disclosure of video viewing.
- VPPA damages are steep: Statutory damages of $2,500 per violation plus attorneys' fees.
- For now, your company's VPPA exposure may depend on where you or your customers are, but the Supreme Court's decision will create one standard. Some courts require plaintiffs to subscribe to video content to qualify as a “consumer,” while others say any subscription qualifies.
In January 2026, the U.S. Supreme Court granted certiorari in Salazar v. Paramount Glob., 133 F.4th 642 (6th Cir. 2025), to resolve a split among courts as to who qualifies as a “consumer” under the Video Privacy Protection Act. The Supreme Court's decision is set to clarify whether free, non-video subscriptions such as email newsletters create a VPPA “consumer” relationship when a publisher also provides video content on the publisher's sites.
What is the Video Privacy Protection Act?
The VPPA2 is a federal law enacted nearly 40 years
ago (in 1988): it prohibits video providers from knowingly sharing
a consumer's personally identifiable information (PII)
without consent. Although the video rentals that the VPPA sought to
regulate are largely a relic of the past, the VPPA recently has
become a frequent basis for privacy class action lawsuits. VPPA
plaintiffs are now bringing class actions arguing that the use of
tracking tools on websites that have embedded videos result in
unlawful disclosure of viewing
activity. 3
The VPPA protects “consumers,” who are defined as
“any renter, purchaser, or subscriber of goods or services
from a video tape service
provider.” 4 To bring a case under
the VPPA, a “consumer” must prove that a video provider
knowingly disclosed to a third party a consumer's PII. The
definition of “consumer” is often central in VPPA
cases: defendants have argued that people who are merely site
visitors are not subscribers, while plaintiffs contend that
creating an account, signing up for newsletters, or using free
streaming features can suffice for the VPPA to apply to them as
“consumers.”
Recent Trends in VPPA Litigation
Nationwide class actions have been brought against companies
with websites that use tracking technologies like Meta Pixel and
Google Analytics; these technologies track consumer actions within
websites. Plaintiffs typically allege that these tools transmit
data tied to user IDs, cookies, and login or account identifiers to
third parties who can match the data to
individuals. 5 Common disputes include whether the
defendant with a website qualifies as a “video tape service
provider,” whether any disclosure of information was
“knowing,” and whether any statutory exceptions
apply.
Violations of the VPPA result in statutory damages of $2,500 per
violation, plus potential awards of attorneys' fees, and
injunctive relief to halt use of tracking tools. Plaintiffs
frequently pursue nationwide class actions to maximize their
potential damage claims and scare companies into settling. Unless
the interpretation of the VPPA changes, plaintiffs are likely to
keep pursuing cases based on tracking technologies, newsletter
sign-ups, account registration, and the integration of analytics
and advertising tools within video players.
The Sixth Circuit's Decision in Salazar v. Paramount Global
Because the VPPA is now being applied to technologies that did
not exist when the statute was drafted, there have been a variety
of disputes about its application. In one of these cases, the Sixth Circuit affirmed dismissal of a
proposed class claims against Paramount Global. This case arose
from a sports website's use of Meta Pixel. The plaintiff
alleged that Paramount Global installed Meta Pixel on
247Sports.com, a website owned by Paramount Global. The plaintiff
also alleges that the 247Sports.com website used Meta Pixel to
track and disclose his video viewing history, which was linked to
his Facebook ID, to Meta Platforms, and that this was done without
his consent.
The plaintiff alleged that signing up for a 247Sports e-newsletter
qualified him as a “consumer” under the VPPA because he
became a 247Sports.com subscriber (and thus a VPPA
“subscriber”) when he signed up for an online
newsletter. The district court granted Paramount Global's
motion to dismiss the plaintiff's complaint for failure to
state a claim under the VPPA, concluding that the plaintiff was not
a “consumer” under the VPPA and that to qualify as a
“consumer,” a “plaintiff must be a subscriber of
goods and services in the nature of audio-video
content.”6
On appeal, the Sixth Circuit considered whether the term
“goods or services” under the VPPA is limited to
audio-visual content or extends to any products or services a
provider could offer. The Sixth Circuit ultimately affirmed
dismissal of plaintiff's complaint, applying a textual
analysis to conclude that the plaintiff was not a
“consumer” under the VPPA. The court emphasized that it
does not “scrutinize a statute atomistically—chopping
it up and giving each word the broadest possible meaning” and
reasoned that “[t]he statutory phrase ‘goods or
services' cannot be construed in a
vacuum[.]” 7 The court concluded that
the term “goods and services” is limited to
audio-visual content because that term is linked to the goods and
services provided by a company when it is acting as a “video
tape service provider” (namely, audio-visual materials).
Because the plaintiff subscribed only to a free email newsletter
rather than to an audio-visual service, the Sixth Circuit affirmed
the district court's holding that he was not a
“consumer.”
Supreme Court to Resolve Different Interpretations of the VPPA
The Sixth Circuit's narrow interpretation of the VPPA
in Salazar diverges from decisions in other appeals
courts that have read “consumer” more broadly. The
District of Columbia Circuit has aligned with the Sixth
Circuit's narrow view, emphasizing the statute's focus
on “video” and the protection of video rental and sale
records. 8
The Second Circuit has construed “consumer” more
expansively, finding that an individual is a “consumer”
if they rent, purchase, or subscribe to any goods or services from
a provider that offers video, not limiting “consumers”
to those who subscribe to audio-visual
offers. 9 The Seventh Circuit aligned with the
Second Circuit's reading of “consumer”
in Gardner v. Me-Tv Nat'l Ltd. P'ship, explaining
that the text of the VPPA does not require a person to subscribe
specifically to video services and instead only requires that the
services are provided and that the person is a
subscriber. 10 Under the Second and Seventh
Circuits' broader readings, free newsletter subscriptions can
establish a subscription relationship sufficient to qualify as a
'consumer' under the VPPA.
The Supreme Court's review in Salazar v. Paramount Global
presents an opportunity for it to resolve the competing
interpretations amongst the circuits and to clarify how the
VPPA's “goods or services” language interacts
with the VPPA's focus on audio-visual materials. The decision
– which should come later in 2026 or in 2027 – may have
wide-reaching implications for how the VPPA is applied in the
modern era to newer technologies like pixels and other tracking
technologies.
Footnotes
1. Meta Pixel is a tracking tool that collects user data for advertising purposes.
2. 18 U.S.C. § 2710 et seq.
3. Examples of VPPA litigation include Solomon v. Flipps Media, Inc., 136 F.4th 41, 48 (2d Cir. 2025) (holding that a digital streaming service's disclosure of a subscriber's digital identifiers via “Facebook Pixel” did not violate the VPPA because an ordinary person could not use the disclosed computer code and digital identifiers to identify an individual's video-watching habits) andArcher v. NBCUniversal Media, LLC, 794 F. Supp. 3d 716, 723 (C.D. Cal. 2025) (denying motion to dismiss VPPA claim where video retailer allegedly used Meta Pixel to transmit consumers' Facebook IDs and video request information to Meta without consent, holding that plaintiffs qualified as “consumers” even before they completed a purchase).
4. 18 U.S.C. § 2710(a)(1).
5. See Solomon at 46–47; Archer at 19.
6. Salazar v. Paramount Glob., 133 F.4th 642, 645 (6th Cir. 2025).
7. Salazar at 649-50.
8. See Pileggi v. Wash. Newspaper Publ'g Co., LLC, 146 F.4th 1219 (D.C. Cir. 2024).
9. See Salazar v. Nat'l Basketball Ass'n, 118 F.4th 533 (2d Cir. 2024). Note that the complaint filed in this case was “virtually indistinguishable” from the complaint considered in the Sixth Circuit's decision in Salazar v. Paramount Glob., filed by the same plaintiff, Michael Salazar. See Salazar v. Paramount Glob., 133 F.4th 642, 651 (6th Cir. 2025).
10. See Gardner v. Me-Tv Nat'l Ltd. P'ship, 132 F.4th 1022 (7th Cir. 2025).
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