Keker, Van Nest & Peters partner Ben Berkowitz said several U.S. Supreme Court justices are skeptical of extending the Video Privacy Protection Act beyond its original intent and applying a decades-old statute to current-day technologies, Law360 reported.
Justices heard oral arguments this week for Salazar v. Paramount Global, which examines whether the VPPA’s definition of “consumer” covers subscribers to a video provider’s goods and services or only its audiovisual ones.
“Congress enacted the statute in 1988, when people rented videotapes from physical stores,” Berkowitz said. “Nearly 40 years later, courts are being asked to apply it to online newsletters, website analytics, and digital advertising. The question is how far the statutory language can reasonably be stretched to accommodate technologies Congress never contemplated.”
The petitioner, a subscriber to Paramount’s 247Sports newsletter, argued that he qualifies as a “consumer” under the statute and can sue over the alleged disclosure of his data to Meta for targeted advertising.
Some of the justices raised concerns about a broad reading of the statute, weighing whether it would invite a flood of litigation against companies with video on their websites. Justice Brett Kavanaugh questioned whether a law aimed at public disclosure of what people viewed should be repurposed to regulate data sharing for advertising, and Justice Clarence Thomas asked whether a sports site is in the business of providing video services at all. Justice Elena Kagan suggested that companies have two simple ways to avoid liability under the statute: get consent or stop selling people’s private information.
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