Supreme Court Considers 1988 Law's Reach in Digital Age

The Supreme Court on Wednesday heard arguments on how a 1988 law, enacted to protect the privacy of video rentals during the Blockbuster era, applies to the modern digital marketplace. The case explores the extent to which companies are obligated to safeguard customers' video-viewing data in an era of online commerce and targeted advertising.

The Video Privacy Protection Act (VPPA) of 1988 was created after a journalist published Supreme Court nominee Robert Bork's movie rental history during his Senate hearings. Consumer advocates argue the law was broadly written to accommodate technological advancements and protect personal information, while critics contend it is a relic being exploited in ways Congress did not anticipate.

The current case involves a customer, Michael Salazar, who subscribed to Paramount Global's online newsletter for its website 247Sports.com. Salazar claims Paramount disclosed his viewing history to Facebook without his consent, enabling targeted advertising based on his personal information. This disclosure, he alleges, violates the VPPA.

During arguments, Justice Elena Kagan suggested that companies could easily comply with the law by obtaining customer consent to use digital data or by ceasing to sell private information. Paramount's lawyer, Paul Clement, sarcastically suggested that requiring companies to put all content behind a paywall would be another solution.

Congress passed the VPPA following the 1987 publication of "The Bork Tapes" in the Washington City Paper, which detailed 146 movies rented by Bork. The ensuing bipartisan outrage led to the law's enactment.

Paramount's legal team argues that Salazar does not meet the law's definition of a "consumer." They contend the VPPA was intended to prevent video rental stores from disclosing rental histories, not to prohibit targeted online advertising. The company asserts that 247Sports.com is a sports news website offering free video clips, articles, and photos, a business model fundamentally different from renting videotapes.

Lower courts have produced conflicting interpretations of who qualifies as a "consumer" under the VPPA. Some rulings define a consumer as anyone who purchases, rents, or subscribes to any service from a video service provider. Others adopt a narrower definition, limiting protections to goods and services with audiovisual content. Salazar's lawyers argue that only the Supreme Court can resolve this split and create a uniform application of the law.