U.S. Supreme Court to Decide Major Privacy Case for Companies Hosting Video Content

By Hunter Bruton and Samantha Taylor

Companies with video content on their websites, and the tracking technologies that often come with it, may soon get long-awaited clarity from the U.S. Supreme Court.

The Court has agreed to hear its first-ever case under the Video Privacy Protection Act (VPPA), a 1988 law that has recently become a powerful tool for plaintiffs bringing online privacy class actions. In the last few years, VPPA litigation has surged, targeting businesses that host videos online and allegedly share viewing-related data with third parties through pixels, cookies or other embedded code.

At stake is a threshold question that could determine who can sue under the statute at all: Who qualifies as a "consumer" under the VPPA?

The Supreme Court’s decision could either significantly narrow VPPA exposure or open the door to even more class action filings against media companies, streaming platforms and any business that offers video content as part of its digital presence.

The Supreme Court Will Decide Who Counts as a VPPA "Consumer"

Although the VPPA was enacted in 1988, the Supreme Court has never interpreted the statute. In recent years, however, a wave of VPPA class actions has sought to extend this video store-era law to the far more complex realm of online privacy. That surge has produced inconsistent lower court rulings and multiple circuit splits, one of which the Supreme Court is now poised to resolve.

The case the Court has agreed to review—Salazar v. Paramount Global—arises from the Sixth Circuit’s 2025 decision affirming dismissal of a VPPA class action on the grounds that the plaintiff was not a "consumer" within the meaning of the statute. The VPPA protects any "renter, purchaser or subscriber of goods or services" from unlawful disclosure of video‑viewing information by a video-tape service provider. The Sixth Circuit held that this phrase, when read in the broader context of the statute, is limited to subscriptions to audiovisual goods or services.

The plaintiff, Salazar, had subscribed only to a free e‑newsletter—not to any video‑specific service. His complaint did not allege that the newsletter provided or facilitated access to video content; rather, it suggested the opposite: the videos at issue were publicly accessible on 247Sports.com without any subscription. Salazar v. Paramount Glob., 133 F.4th 642, 652–53 (6th Cir. 2025), cert. granted, No. 25‑459, 2026 WL 189831 (U.S. Jan. 26, 2026). On that basis, the court held he was not a VPPA "consumer," even if he watched videos on the website in addition to subscribing to a newsletter.

Judge Bloomekatz issued a vigorous dissent, arguing that the plain text of the VPPA unambiguously encompassed Salazar as a "consumer" and that the majority opinion was only reached "by rewriting the plain language of the VPPA." Id. at 654–56.

By granting Salazar’s petition for certiorari, the Supreme Court is now poised to clarify the scope of "consumer" under the VPPA and to resolve a growing circuit split.

The Circuit Split on "Consumer" 

The Sixth Circuit’s approach aligns with the D.C. Circuit Court of Appeals, which held in Pileggi v. Washington Newspaper Publishing Co., 146 F.4th 1219 (D.C. Cir. 2025) that a newsletter subscriber does not qualify as a VPPA "consumer" when the subscription is unrelated to video content, even if the individual also views videos on the same website.

By contrast, the Second and Seventh Circuits have adopted a broader view, holding that a person qualifies as a "consumer" so long as they subscribe to any good or service offered by an entity that provides video content—regardless of whether the subscription relates to audiovisual materials.[1]

Notably, the Supreme Court declined review last year in Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024), brought by the same plaintiff to whom the Court has now granted cert. There, the Second Circuit held—in direct contrast to the Sixth Circuit—that subscribing to the NBA’s email newsletter constituted subscribing to "goods or services" under the VPPA and that Salazar had plausibly alleged he was a VPPA "consumer."

Another VPPA Split: The "Ordinary Person" Standard 

The Court’s review arrives amid several other VPPA-related circuit splits that have emerged in recent years. For example, the circuit courts disagree on what standard governs whether a disclosure identifies a person’s video‑watching behavior in violation of the VPPA:

• The Second, Third, and Ninth Circuits apply the "ordinary person" standard, under which liability attaches only if an ordinary person could identify the consumer’s viewing history from the disclosed information.
• The First Circuit has adopted the broader "reasonable foreseeability" standard, holding that a disclosure is unlawful if it is reasonably foreseeable that the recipient could connect the information to specific video‑viewing behavior—even if an ordinary person could not.

This matters because, in many VPPA class actions, the alleged disclosure consists of computer code transmissions to third‑party platforms—often without the user’s awareness and in a form the average person cannot readily interpret

Key Takeaways

The Supreme Court’s decision in Salazar v. Paramount Global is expected to provide long-awaited guidance on one of the VPPA’s most important threshold questions: who qualifies as a protected "consumer." Specifically, the Court will decide whether VPPA coverage requires a subscription to audiovisual services, or whether any subscription relationship with a video-content provider is sufficient.

The ruling will have significant implications for media companies, streaming platforms and any business that hosts video content online alongside common analytics or advertising technologies.

• If the Court adopts the narrower Sixth/D.C. Circuit approach, VPPA exposure may be substantially limited, particularly for companies where video content is incidental to broader offerings.
• If the Court endorses the broader Second/Seventh Circuit view, potential liability could expand considerably, likely encouraging additional class action filings based on routine newsletter subscriptions or other non-video services.

The Court’s decision may also offer insight into how it will approach other emerging VPPA issues, including the unresolved split over what kind of data disclosure is sufficient to identify an individual’s video viewing behavior.

In the meantime, businesses with embedded video players, tracking pixels or third-party advertising tools should closely monitor this case and consider assessing their VPPA compliance posture.

If you have any questions related to this development, please contact Hunter Bruton, Samantha Taylor or your regular Smith Anderson attorney.

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[1] Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024); Gardner v. Me-TV Nat'l Ltd. P'ship, 132 F.4th 1022 (7th Cir. 2025).