This week, the Supreme Court of the United States agreed to hear an appeal concerning the definition of “consumer” under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710; long one of the most frequently litigated privacy laws.  If the Court affirms the lower court’s decision, it will defeat yet another attempt by the plaintiff’s bar to penalize companies who host audio visual content on their websites.

Statutory Background

The VPPA was enacted in 1988 in response to the disclosure of then-Supreme Court nominee Robert Bork’s videotape rental history by a video store to a reporter. Despite its analogue origins, this decades-old statute has been used by plaintiffs (incentivized by the VPPA’s $2,500 per violation liquidated damages provision) in putative class action litigation brought against any business whose website contains playable videos and third-party cookies.

The VPPA prohibits [1] a “video tape service provider” from [2] knowingly [3] disclosing [4] “personally identifiable information” of [5] a “consumer,” unless certain enumerated exceptions apply.  18 U.S.C. § 2710(b)(1).   Although the terms “video tape service provider,” “personally identifiable information,” and “consumer” are all defined by the statute, the scope of these terms continues to be disputed.

The VPPA defines a “video tape service provider” as “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”  § 2710(a)(4).  “Personally identifiable information” is defined as including “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”  § 2710(a)(3).  Finally, “consumer” “means any renter, purchaser, or subscriber of goods or services from a video tape service provider.”  § 2710(a)(1).

Case Background

The case before the Sixth Circuit was a class action alleging that the named plaintiff’s video viewing history on a college sports website was disclosed to third parties without his consent.  Plaintiff claimed that “he was a ‘consumer’ under the VPPA because he became” a subscriber by signing up for the online newsletter of the college sports website.  Salazar, 133 F.4th 642, 645-46 (6th Cir. 2025).  He did not allege that the videos he watched were available only to newsletter subscribers or even that he accessed the videos through the newsletter.  The district court, therefore, dismissed Plaintiff’s case, finding that “to qualify as a ‘consumer,’ a ‘plaintiff must be a subscriber of goods and services in the nature of audio-video content.’”  Id. at 646.  Plaintiff appealed.

Sixth Circuit Affirms Lower Court’s Order, Holding that Plaintiff had not Stated a Claim under the VPPA

The Sixth Circuit affirmed the district court’s order based on a statutory analysis of the VPPA’s definition of consumer.  In analyzing whether Plaintiff was a “consumer,” the court asked “whether he was a ‘subscriber of goods or services from a video tape service provider.’”  Id. at 649.  While Plaintiff urged the broadest possible reading of “goods and services,”  the court reasoned that, by examining the phrase in context, it was clear that “the statute does not encompass consumers of all ‘goods or services’ imaginable, but only those ‘from a video tape service provider,’” and in particular a service provider “involved in the ‘rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.’”  Id. at 650.  Thus, the court reasoned 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.”  Id. at 650-51.  The Court determined that Plaintiff had not stated a claim under the VPPA because the newsletter at issue was not “an ‘audio visual material’” given “that the relevant videos were accessible to anyone, even those without a newsletter subscription.”  Id. at 653.

Supreme Court Grants Certiorari

The Supreme Court’s decision to hear this appeal is significant because the federal circuit courts are currently split on the definition of “consumer” under the VPPA.  “The Second Circuit [has] held that the statutory term ‘consumer’ should be understood to encompass a renter, purchaser, or subscriber of any of the provider’s ‘goods or services’—audiovisual or not.”  Id. at 651-52 (citation omitted).  The “Seventh Circuit echoed [that] conclusion in an ‘almost identical’ case.”  Id. at 652.  In contrast, the D.C. Circuit has adopted an approach similar to that of the Sixth Circuit.  The Supreme Court’s ultimate decision will have the benefit of clarifying this issue for companies.  A ruling along the lines of the Second and Seventh Circuits, however, would be a gift to the plaintiff’s bar and a threat to all companies that offer audio visual content on their websites.  Whatever happens, Privacy World will be here to help you navigate issues surrounding the VPPA. Stay tuned.

Disclaimer: While every effort has been made to ensure that the information contained in this article is accurate, neither its authors nor Squire Patton Boggs accepts responsibility for any errors or omissions. The content of this article is for general information only, and is not intended to constitute or be relied upon as legal advice.

Stay Ahead on Consumer Privacy News

Not a subscriber yet? Subscribe here to be among the first to receive timely updates on the fast-moving world of data privacy, security, and innovation—delivered straight to your inbox.

Looking for deeper insights and expert analysis? You can also subscribe here to our privacy attorneys’ marketing communications for thought leadership and rich content when you need a more comprehensive perspective.