Commentary Addressing Risks and Opportunities Through the Life Cycle of Data, Technology, Advertising and Innovation

Data Counsel

Home | Data Counsel

The past year has brought a number of federal appellate rulings under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, one of the statutes under which plaintiffs have been filing numerous claims in recent years involving companies’ use of third-party marketing and analytics technologies on their websites. The VPPA was passed in the 1980s in response to a video rental store’s disclosure to a local newspaper of the video rental history of Supreme Court nominee Robert Bork. The statute restricts “video tape service providers” from disclosing “personally identifiable information” about their “consumers” unless certain statutory requirements are met. Each of those terms is defined under the VPPA and has been the subject of recent appellate rulings.

core/paragraph

A “video tape service provider” under the statute is “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials… .” 18 U.S.C. § 2710(a)(4). Plaintiffs have argued that a broad swath of businesses – including restaurants, retailers, news outlets, sports franchises and many others – are covered by the VPPA merely because they make videos available online, even though they are wholly unlike the video tape rental store that gave rise to the VPPA’s passage. However, in May 2025, the Ninth Circuit held in Osheske v. Silver Cinemas Acquisition Co., 132 F.4th 1110 (9th Cir. 2025), that a business that provides “a classic in-theater movie-going experience” is not a “video tape service provider” under the VPPA. The case involved allegations that information about a theatergoer’s online movie ticket purchases was shared with Meta, via use of the Meta Pixel on the company’s website. The court examined the VPPA’s references to “rental, sale, or delivery” and “prerecorded video cassette tapes” in concluding that a movie theater does not fall within the statutory definition. This is the first appellate opinion to directly and substantively address a defendant’s challenge as to whether the defendant was a “video tape service provider” under the VPPA.

Three appellate courts have also issued opinions over the past year on what it means to be a “consumer” under the VPPA. The statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). In Salazar v. National Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024), the Second Circuit first rejected the defendant’s Article III standing challenge and then proceeded to hold that a person who signs up to receive a free email newsletter is a “subscriber” and therefore a “consumer” under the VPPA, rejecting the district court’s conclusion that the “goods or services” must be audiovisual. Several months later, the Seventh Circuit agreed with this expansive interpretation of “consumer” in Gardner v. Me-TV National Limited Partnership, 132 F.4th 1022 (7th Cir. 2025). Shortly thereafter, however, the Sixth Circuit, after concluding that it had Article III jurisdiction to consider the issue, disagreed with the Second and Seventh Circuits and held in Salazar v. Paramount Global, 133 F.4th 642 (6th Cir. 2025), that only a person who rents, purchases or subscribes to audiovisual goods or services is a “consumer” under the VPPA. The Second Circuit therefore upheld the district court’s dismissal where the plaintiff had alleged only that he signed up for a free email newsletter from the defendant. The defendant in the Second Circuit case has filed a petition for writ of certiorari, which remains pending before the U.S. Supreme Court and which seeks review of both the Article III standing issue and the “consumer” issue.

Finally, the VPPA provides that “the term ‘personally identifiable information’ includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3). In Solomon v. Flipps Media, Inc., __ F.4th __, 2025 WL 1256641 (2d Cir. May 1, 2025), the Second Circuit held that this definition “encompasses information that would allow an ordinary person to identify a consumer’s video-watching habits, but not information that only a sophisticated technology company could use to do so.” Applying this standard, the Second Circuit held that the type of information allegedly transmitted by the Meta Pixel – a Facebook user ID number and an HTML string that purportedly included a video title – did not meet this standard, and consequently that the Meta Pixel transmissions alleged in the complaint were not covered by the VPPA. The so-called “ordinary person” standard had previously been adopted by the Third and Ninth Circuits, but the Second Circuit decision is the first federal appellate decision to apply that standard in the Meta Pixel context.

Because numerous legal challenges remain pending at the district court level in VPPA cases and the Supreme Court may be weighing in on VPPA issues in the coming year, it remains important for companies to continue to monitor legal developments in this area.

DSIR Deeper Dive: A Big Year for VPPA Developments