The Supreme Court on Wednesday grappled with how far a law Congress passed to cover video rentals in the 1980s should stretch to cover the modern advertising-supported internet. The case turns on the justices’ interpretation of the Video Privacy Protection Act, first passed in 1988 and last amended in 2013, and the protection it is meant to provide for consumers’ information when they rent or purchase videos. The law protects “consumers” of video content from having private information about their viewing habits from being disclosed without their permission. Justice Brett M. Kavanaugh, along with other members of the panel, weighed how to handle the text of a decades-old statute when technology has massively changed in the interim. “Isn’t there a concern about repurposing a statute that was really about public disclosure of what individuals viewed into a statute that regulates data sharing for targeted advertising on the internet?” Kavanaugh asked. The case argued Wednesday started with a lawsuit from Michael Salazar when he signed up for a newsletter from a college sports website called 247Sports.com, an entity owned by Paramount. The company provided his data to Meta for advertising, and Salazar argued that transaction violated the privacy law. A federal trial judge found that although the website provided videos, the newsletter Salazar signed up for did not qualify him as a “consumer” under the law because the newsletter was not the kind of media the law covered. The U.S. Court of Appeals for the 6th Circuit agreed, and Salazar appealed to the justices. Congress first passed the law after reporters published the video rental history of the late Judge Robert Bork during his failed nomination to the Supreme Court in 1987. The law makes a “video tape services provider” liable for damages if it provides personal information about a “consumer” of its products to a third party. A ruling either way could affect a wide swath of lawsuits brought over privacy concerns over personal information shared with internet giants. The justices will likely issue a decision in the case by the end of the current term next June. Joshua I. Hammack, attorney for Salazar, argued that Congress wrote a statute that it intended to apply in the future, even if technology changed. Companies providing video services could just get permission to share data from their consumers and avoid facing lawsuits, he said. “Congress was very concerned about consent and the consumer controlling the disclosure of personally identifiable information,” Hammack said. Hammack also pointed out that Congress left much of the law unchanged when it updated parts of it in 2013, indicating that it intended it to still apply. The changes allowed companies to obtain electronic consent to share data. Hammack said that ruling in Salazar’s favor would only cover companies that were “in the business” of providing video content. Justice Amy Coney Barrett said that interpretation would cover a department store that has a video advertisement on its website. “It’s a profit motive, it’s not doing it just for kicks. I mean that brings in things like Chick-fil-A and basically every other business,” Barrett said. Attorney for Paramount Paul D. Clement said a ruling in favor of Salazar could reshape the internet as providers could change their entire business model away from providing much content online for free. “The reason that material is available for free on the internet is precisely because it’s being financed by targeted advertisement,” Clement said. Clement argued that Salazar and other plaintiffs correctly lost the case at the lower courts, where judges decided that the law did not apply to relationships like the one Salazar had with Paramount. The case is Salazar v. Paramount Global.
