When the Senate considered President Ronald Reagan’s nomination of Robert H. Bork for a Supreme Court vacancy in 1987, a journalist in Washington obtained and published a list of nearly 150 movies the federal judge and his family had rented from a local video store.
Judge Bork’s nomination was scuttled by the Senate for reasons unrelated to his family’s decision to rent “The Shining” and “Sixteen Candles.” But lawmakers were so upset about the “Bork Tapes” becoming public that they passed legislation the following year to prohibit video stores from disclosing the private information of customers.
Forty years later, the Supreme Court on Wednesday will examine how that privacy law, adopted in the VHS era, applies in the age of streaming, email newsletters and targeted online advertisements.
At the heart of the case is the question of who can sue under the Video Privacy Protection Act, or what it means to be a consumer whose privacy interests are protected by the law. The issue has divided lower courts and has implications for a broad swath of Americans and companies doing business online.
Passed with bipartisan support, the “Bork bill” allows lawsuits to be filed against a “videotape service provider” that discloses a consumer’s personally identifiable information, including data about the “specific video materials or services” the customer has “requested or obtained.”
The lawsuit before the Supreme Court started when Michael Salazar, a California resident, signed up for a free online newsletter from the media company Paramount Global through 247Sports.com, a website that provides news coverage of college athletics. Mr. Salazar provided his email address and received a daily newsletter with links to articles — some with videos — and photographs, among other content.
Mr. Salazar then sued Paramount, saying that the company had used tracking software installed on its website to give Facebook Mr. Salazar’s personally identifiable information, including his Facebook ID, and information about what videos he had watched. His lawyers argued that Facebook and Paramount had used this information to create targeted advertising.
In court filings, Paramount has countered that Mr. Salazar is not a “consumer” as defined by the statute, and that the law was intended to address a specific privacy problem unrelated to Mr. Salazar: the protection of a customer’s video rental history. Free marketing emails and newsletters have nothing to do with what had concerned Congress, the company’s lawyers said in court filings.
Congress amended the law in 2013 to allow consumers to give written consent for a service provider to share their information.
If the Supreme Court sides with Mr. Salazar, the decision would clear a path for similar lawsuits under the law, which allows for damages of $2,500 per violation.
The outcome of the case will likely come down to how exactly the justices read the text of the statute, which defines a consumer as “any renter, purchaser or subscriber of goods and services from a videotape service provider.”
Lower courts have been divided over the meaning of the word “consumer.” Some have found that it refers to the users of all of a video service provider’s products. Others have viewed it more narrowly as users only of audiovisual content.
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a lower court’s finding that Mr. Salazar did not qualify as a consumer because he only signed up for a newsletter, which the court said was not “audiovisual material.”
The D.C. Circuit agreed with the Sixth Circuit, but the Second and Seventh Circuits adopted a broader view, holding that a person who subscribed to a videotape service provider’s online newsletter qualified as a “consumer.”
Mr. Salazar’s legal team, led by Joshua Hammack, argued that the statute should be read broadly, to protect privacy in “the computer age,” which has given businesses the ability “to be more intrusive than ever before.”
Paramount’s lawyer, Paul Clement, countered that Mr. Salazar’s case went far beyond what Congress envisioned with the Bork bill. He argued that a person should only be considered a consumer under the law if they actually engaged in a transaction for video content, like subscribing to Netflix.
He warned that Mr. Salazar’s reading of the law would “transform a 1988 video-rental statute into an unworkable internet-privacy regime of broad yet incoherent scope backed by harsh penalties.”
The company’s position is backed by other business interests, including news media companies and retailers, which told the court in filings that Mr. Salazar’s approach would undermine the advertising model underwriting much of the modern internet.
“Any business that posts videos on its website — and allows ordinary web-analytics tools to share viewing data with a third party such as a social media platform — faces class-action liability of $2,500 per video,” said Adam Unikowsky, a lawyer representing the Chamber of Commerce.
Julie Tate and Kitty Bennett contributed research.
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