The Supreme Court Is Leaning Toward a Digital Privacy Victory

The Supreme Court appeared likely to side with a customer who invoked a semi-obscure federal law to sue Paramount for sharing his personal information with Facebook during oral arguments on Wednesday, though multiple justices signaled that they might constrain such lawsuits in future cases.The case, Salazar v. Paramount Global, has significant potential implications for targeted digital advertising and its long-term viability. If the high court concludes that the Video Privacy Protection Act, or VPPA, forbids companies from sharing or selling online video viewers’ personal information without their consent, it could unsettle one of the primary revenue generators for some major websites.Congress enacted the Video Privacy Protection Act, or VPPA, in response to a subplot of the Robert Bork confirmation hearings in 1987. The Senate rejected Bork’s nomination to the Supreme Court after intense scrutiny of his stances on issues such as a constitutional right to privacy, a concept that Bork had often criticized. Michael Dolan, a reporter at The Washington City Paper, asked Bork’s local movie-rental store for a copy of the movies he had rented there as a commentary on Bork’s views on privacy.The store’s manager provided it without qualification. The rental history contained nothing salacious or unusual—Bork had a taste for middlebrow fare and period dramas—and played no role in the confirmation battle. But it still prompted Congress to prevent similar disclosures in the future without the customer’s consent. Lawmakers last updated the law in 2013 to reflect the emergence of Netflix and streaming services.At issue in this particular case is whether the law’s language covers the underlying acts. Michael Salazar, the plaintiff, received a subscription through a newsletter to a college sports website, where he viewed videos about college football. Paramount, the website’s operator, installed tracking software on its webpages known as a “pixel” that logged Salazar’s personally identifiable information and automatically shared it with Facebook.Salazar argued that this violated the VPPA, which allows “consumers” to sue “video tape service providers” for disclosing their “personally identifiable information” to third parties without their consent. The law allows individual plaintiffs to obtain up to $2,500 in damages for the violation. Given how ubiquitous digital tracking software and targeted online advertising have become, those numbers can add up fast for businesses.His lawsuit failed in the lower courts because they concluded that Salazar did not meet the definition of a “consumer” for VPPA purposes. The law defined a consumer as someone who obtained “goods and services from a video tape service provider,” which the lower courts concluded that Congress meant only “audiovisual goods or services.” Salazar appealed to the Supreme Court, arguing that the law as written applies to any goods or services from a provider.Some justices appeared to favor the lower courts’ narrower interpretation. “Wouldn’t it be natural to think that goods or services from a video tape service provider would be video-related services?” Justice Clarence Thomas asked Josh Hammack, who represented Salazar. Hammack argued that other portions of the law’s language indicated that the law’s scope was meant to be broader than that.Justice Samuel Alito also suggested at one point that the law’s scope was limited to forms of technology that are no longer in widespread use. “It is not similar in the sense that you go to a Blockbuster store and get a VHS tape,” he told Hammack.Other justices appeared to take Paramount’s concerns seriously about the impact on Internet businesses and advertising, but saw opportunities to address them in future cases. Justice Brett Kavanaugh and some of his colleagues pointed out that other questions, such as what counts as “personal identifying information” or a “video tape service provider,” might still tip in Paramount’s favor in later litigation.“So how do we think about, you know, the sky-is-falling concern in the [friend-of-the-court] briefs—and it’s part of your brief—when there are these two other arguments that you may prevail on?” Kavanaugh asked Paul Clement, who argued on Paramount’s behalf. “And why shouldn’t we just follow ‘consumer’ as written and worry about that in a future case?”Among Clement’s concerns in response was that, in the mean time, websites would be forced to obtain consent in cases where they might not need to do so in the future. This did not appear to persuade some of the justices. “Going forward, you have two very simple solutions,” Justice Elena Kagan explained. “One is to get consent. Easy enough. People do it every day. And the other is to stop selling people’s private information. Take your pick.”“Yeah, or put everything behind a paywall,” Clement countered. “That would be great.”“What’s the problem with not disclosing private video views?” Justice Sonia Ssotomayor chimed in. “I mean, it’s a business for you, and it might end your business if you don’t want to get consent, but if you want to stay in the business, get consent, or just don’t do it. Other than that, you have created a business model that might contradict the law, because we still have a lot of open issues, what’s the problem?”Clement disputed the idea that user consent would be easy or clean-cut to obtain, noting that other lawsuits have challenged the validity of it once given. Again, the justices seemed unpersuaded. “Well, that’ll always be the argument,” Kavanaugh countered. “But it seems, just technologically, isn’t it pretty easy for you all to obtain consent going forward? It’ll be a little more hassle for all of us, but…”“For everyone,” Clement replied. “It’s just one of those cookies boxes that comes up, right?” Kagan interjected. “Yeah,” Kavanaugh added. “Wouldn’t you do it the exact same way?” Kagan offered. “I mean, we do that a thousand times a day.” Clement, at this point outmaneuvered, fell back to other arguments instead, urging the justices not to decide the case “on the assumption that consent is absolutely easy.”One potential wrinkle for both sides is the question of whether Salazar had standing to bring the lawsuit in the first place. Paramount argued in the district court that he didn’t, but abandoned that line of attack on appeal. “But, you know, the funny thing about standing arguments, you can’t really drop them,” Clement noted. Since a court’s jurisdiction is always essential to deciding a case, it can’t be forfeited by one side.Justice Amy Coney Barrett pressed both sides on whether there was a standing issue here, with some friend-of-the-court briefs suggesting that the “pixel” tracking technology did not share what the law would understand to be “personally identifying information.” Clement did not make that argument himself, but he said he would be willing to submit additional briefs on the question if the justices were interested.None of the other justices asked specifically about standing, and the case appeared to be headed towards a resolution on the merits. If the justices ultimately punt on this case, the recent surge in VPPA-related litigation means that the court will almost certainly address its scope and application for the modern internet at some future date. If no punt is forthcoming, a decision is expected by the end of June.