Justices confront internet privacy with Blockbuster-era law

The Supreme Court is taking on digital marketing next week in a case asking how federal consumer privacy rights apply when companies sell data for targeted advertising.WASHINGTON (CN) — Despite his failed Supreme Court nomination, the legacy of Judge Robert Bork will take center stage next week as the justices confront how video privacy protections should apply in the modern internet era.In 1988, Congress enacted the Video Privacy Protection Act after a reporter published an exposé of the judge’s video rental history. “The Bork Tapes” were intended as commentary on Bork’s polarizing views about the right to privacy, but the ordeal revealed broad consensus in Congress about consumers’ rights.Nearly 40 years later, privacy protections remain a top issue for Americans. And a new trend of lawsuits have emerged in kind, attempting to use the 1988 law to target companies that sell consumer information for targeted advertising.The question for the Supreme Court next week will be whether the Blockbuster-era law can be retrofitted for the modern internet age. Digital privacy advocates say it can, pushing for stricter enforcement of consumer protections. But companies warn against overextending the statute and wreaking havoc on the internet writ large.Facebook ad leads to SCOTUS showdownMichael Salazar signed up for 247Sports’ online newsletter, where he provided personal information such as his email address. Because he was logged into his Facebook account while viewing content from the site, Salazar says that 247Sports’ owner, Paramount, disclosed his information to the social media giant to be used for targeted advertising.Salazar sued Paramount for sharing his browsing information with Facebook, arguing that he fits the Video Privacy Protection Act’s definition of consumer: “any renter, purchaser or subscriber of goods or services from a video tape service provider.”Salazar says Congress’ language was intentional, choosing ordinary language that didn’t carry a secondary or idiosyncratic meaning. To make his point, Salazar quotes a Paramount film, “Mean Girls,” where one character attempts to make “fetch” happen.“Here, Paramount is a video tape service provider,” Salazar wrote. “And Mr. Salazar is a subscriber of Paramount’s online newsletter. Thus, the newsletter he subscribed to came ‘from a video tape service provider.’”Salazar said the only question left is whether the newsletter fits into the statute’s definition of “goods or services.” He says it does.The limit does not existParamount counters the statute wasn’t intended to cover non-video transactions, such as the newsletter at issue in this case. The media giant argues Salazar’s reading had taken the Video Privacy Protection Act from relative obscurity and repurposed it to target companies for routine business practices.“Armed with that unlikely theory, plaintiffs…brought a bevy of class-action lawsuits against entities, ranging from La-Z-Boy to Chick-fil-A, that market unrelated non-video goods or services and also put free promotional or instructional video clips online,” Paramount wrote. “And they have initiated putative class actions like this at no cost, just by signing up for a free marketing email from a business with a website with video content.”Paramount’s concerns are shared by others in the industry. The Motion Picture Association submitted an amicus brief stating that an expansive reading of the Video Privacy Protection Act would turn virtually everyone into a “consumer” since video content is now ubiquitous on the internet. And companies that sell video content are often part of a larger enterprise with far-ranging lines of business.“For example, an individual might buy groceries from Whole Foods (owned and operated by Amazon.com, Inc.), then watch a free video about a yoga mat she is considering purchasing from Amazon.com (also owned and operated by Amazon.com, Inc.),” the Motion Picture Association wrote. “Under petitioner’s construction, that grocery shopper would be a ‘consumer’ under the VPPA because she purchased ‘goods or services’ (groceries) from a company that also delivered free, unrelated video content (about a yoga mat).”News sites could also be hit particularly hard. Dramatic changes in the publishing industry have pushed news sites to complement articles with multimedia, including videos and audio. And many websites rely on advertising revenue to provide free public access to their work.“What modern consumers often perceive as ‘free’ is actually built on the business model of digital advertising,” the News/Media Alliance wrote.The group said if Salazar, prevails news sites would be forced to either stop publishing videos altogether, place videos behind a paywall or abandon advertising technology that makes free journalism economically viable.The Supreme Court will hear oral arguments Oct. 14.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads