WASHINGTON – A 1988 video tape-era privacy law will collide with the modern digital age at the Supreme Courton Oct. 14.
How the justices approach the case being argued could have far-reaching consequences for the large swaths of the internet that rely on targeted advertising — and for the internet users who are the target of those ads.
The law at issue, the Video Privacy Protection Act, was enacted in response to the decision by the Washington City Paper to release a list of 146 movies rented from a local video store by Robert Bork, who had been nominated by President Ronald Reagan to serve on the Supreme Court. The outrage surrounding disclosure prompted Congress to create stiff penalties for any video tape service provider who discloses personally
identifying information about a customer.
Almost 30 years later, the court must decide whether and how that law applies to websites. The California man at the center of the case says it does.
Michael Salazar used his free digital subscription for 247Sports.com, which is owned by Paramount Global, to watch videos about college sports. He was logged into Facebook at the time. Like many websites that provide content outside a paywall, 247Sports makes money through advertising. Online tracking tools inserted in the webpage send information about the user to a third party – in this case, Facebook's parent company, Meta.
Salazar is seeking to bring a class action suit against Paramount under the Video Privacy Protection Act, arguing the law bars Paramount from sharing his video watching history and other personal information with Meta to create targeted advertising in his feed.
The case pits privacy advocates against major corporations and a widely used business model.
`Blockbuster-era statute'
Paramount contends that Salazar is suing to get a “massive windfall” by transforming a “Blockbuster-era statute” about video rental history into an unworkable internet-privacy regime.
Any content Salazar viewed was available for free, Paramount’s lawyers wrote in a filing, making 247Sports “a completely different business from renting video cassette tapes.” Essentially, they're arguing that watching a free video doesn't make someone a "consumer" under the law so the privacy protections don't apply.
News media organizations said in filings supporting Paramount that tracking video viewers is a routine part of their business model that allows them to offer content to the public for free.
The U.S. Chamber of Commerce told the court that the case could abolish the targeted-advertising model that funds much of the internet.
Privacy advocates, on the other hand, say the law is even more important today because video streaming services have become ubiquitous, vastly expanding the amount and types of personal data that can be collected about viewers.
Americans concerned about use of online data
Data from the Pew Research Centershow Americans are confused and concerned about how their online data is being used. More than seven in ten Americans surveyed in 2023 said they have little to no control over what companies do with their data.
“We have had a massive proliferation in online tracking and profiling in the last few decades,” said Sara Geoghegan, a lawyer with the Electronic Privacy Information Center, which filed a brief supporting Salazar. “We don’t have a general, federal comprehensive privacy law. But we do have this specific law that protects video viewing habits.”
Geoghegan said there’s still plenty of other data valuable to businesses that website operators can collect. Companies can also use their own information about customers to pitch ads or can get viewers’ consent for targeted ads.
“There are many ways of serving ads online that don’t require these unlawful disclosures,” she said.
Lower courts dismissed lawsuit
The legal debate centers on whether the privacy protections kick in only when someone signs up or pays money specifically to watch a video.
An appeals court dismissed Salazar’s lawsuit, ruling that subscribing to an online newsletter giving Salazar access to videos is not the same as subscribing to actual audiovisual content.
The law protects “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”
Salazar’s lawyers argue that the phrase “goods or services” covers everything offered by a company, including a free newsletter.
Paramount’s lawyers say that when the phrase “goods and services” is read in context with the rest of the law, it's clear the protections apply only to renting, purchasing or subscribing to audiovisual materials.
Josh Robbins, an attorney with the Libertarian Pacific Legal Foundation, said Paramount’s theory could be compelling to a court that has often been opposed to broad interpretations of the law.
“I expect there will probably be a continued push towards this narrower, more contextual reading of statutes to confine their reach,” he said.
A decision in Salazar v. Paramount Global is expected by the end of June.
This article originally appeared on USA TODAY: Can you sue over targeted ads? 'Blockbuster' Supreme Court case to decide
