In our upcoming September gathering, we will preview a major digital privacy case on the Supreme Court's docket, Salazar v. Paramount Global, which turns on the definition of a "consumer" under the Video Privacy Protection Act (VPPA). To understand why a forty-year-old law is currently driving millions of dollars in modern web class-actions, it is useful to examine the political theater that birthed it.
In 1987, President Ronald Reagan nominated Judge Robert Bork to the Supreme Court, initiating one of the most contentious confirmation battles in American history. As journalists scrambled for personal details, a writer for Washington's City Paper obtained a printout of the Bork family's video rental history from a local store. The list was entirely mundane—consisting of classics, westerns, and family dramas—but the disclosure provoked bipartisan outrage. Congressmen realized that if a judge's private reading and viewing habits could be easily exposed, their own were not safe. Within a year, Congress passed the VPPA of 1988, establishing strict penalties for video rental stores that disclosed a customer's record without written consent.
The law was designed for a world of physical videotapes, paper receipts, and brick-and-mortar storefronts. Yet, in the absence of a comprehensive federal digital privacy law, this analog statute has been resurrected. When a user streams a video on a modern website, invisible tracking scripts (such as the Meta Pixel) send packets of data back to advertising networks, linking the user's browser identity with the video title. Plaintiffs are now arguing that newsletter subscribers and website visitors are "consumers" under the 1988 Act, and that pixels are the modern equivalent of paper rental slips.
This September, we will discuss the structural absurdity and necessity of this legal stretching. We will examine how a law designed to protect Robert Bork’s VHS rentals has become the primary weapon against the web's massive telemetry and tracking systems, and whether the Supreme Court will limit the statute to its analog grave or allow it to govern the digital highway.