The Price of Watching

Introduction

A person watches a video at a website. A website logs the activity, a tracking script relays information to an advertising host, and the data is added to a database for inferring customer behavior.

The viewer’s knowledge that the video-viewing activity has occurred is not necessarily the same as knowledge that the activity has been shared.

American privacy law has had trouble keeping up with the industry’s data collection practices. Case in point: the Video Privacy Protection Act of 1988 (VPPA), born of the presidential campaign scandal triggered by the unauthorized disclosure of Supreme Court nominee Robert Bork’s video rental history.

Almost four decades later, the law’s scope is being tested, as courts consider whether the VPPA’s protections can be said to apply to individuals who view videos on digital web services whose tracking scripts share information about the viewing activity with a third party.

Does the VPPA protect video viewers?

What Video Retailers’ Customers Could Do With Their Viewing Habits

The VPPA was passed in response to an issue that reflected early concerns about privacy in the digital age.

Congress passed the VPPA to stop video tape service retailers from disclosing “personally identifiable information” about a “consumer’s viewing history” with third parties, subject to certain exemptions. The law was based on a perception that information about a person’s viewing choices could be used to infer details about the viewer’s interests, religion, or other topics that the viewer might not want shared.

In the 1980s, this presented a problem with video rental records. In the 2020s, people are watching videos both on websites that host video content and on other websites that include embedded videos, which operate as applications or plugins. Information about these viewing activities can potentially be gathered by advertising platforms and shared with firms that host the videos, analyze the content, or sell similar videos to the viewer.

The issues that the VPPA was intended to address may still be relevant today.

A Consumer Who Subscribes to a Website That Publishes a Newsletter

Part of the issue in VPPA controversies is a definition. According to the VPPA itself, a “consumer” is “a subscriber of goods or services from a video tape service provider.” This raises issues in a situation in which a person subscribes to a free newsletter at a website, but views videos as part of that website that use tracking scripts to relay information to an advertising host. Does the VPPA apply to activities of that subscriber?

In the recently-argued case of Salazar v. Paramount Global, a plaintiff is suing the entity that owns the website 247Sports.com, alleging that the site tracked his viewing activities and shared the information with Facebook. The defendant denies that the plaintiff can be considered a “consumer” within the meaning of the VPPA.¹

The Supreme Court heard oral arguments in October 2026. The controversy involves a debate between an interpretation of the VPPA that seeks to maximize the law’s applicability and coverage in light of evolving technology and an interpretation that seeks to strictly construe the VPPA’s language and limit its applicability.

In other words, advocates for viewers’ privacy are asking the Court to consider that the VPPA’s purpose is more important than the precise wording of the law. Those who oppose that approach point out that such an interpretation would cause the VPPA to apply to situations not contemplated by Congress when it passed the law.

Neither approach is without its problems. Interpreting the VPPA to cover a broad range of “video distribution platforms” may cause it to apply to situations in which a company does not distribute video content. Construing the VPPA strictly as written would cause it to apply only to narrow circumstances in which a consumer rents a video from a retail store.

Can You Consent to Having Your Behavior Analyzed?

An issue that is not often discussed in the context of the VPPA is the role of consent.

Many companies that host and distribute video content engage in extensive data-gathering and behavioral analysis of people who watch their videos. This may be done for marketing purposes, or it may be done because such information is valuable to third parties. Information about a viewer’s interests can be used to help sell related products.

Such practices only raise concerns if the data-gathering and analysis activities are not things that the viewer has consented to.

Consent is an option that companies can use to assure consumers that they will not share their viewing information with third parties.

However, consent is only meaningful if the person giving it has a clear understanding of what they are consenting to. A company that collects and shares data about consumers is unlikely to be taken seriously if it claims that a person has consented to having their viewing information shared without providing a detailed description of what they are sharing.

How Relevant Is the VPPA in the Age of Video Streaming and Social Media?

The VPPA represents a particular problem in American law: statutes that linger well past their expiration date.

When courts interpret statutes, they are generally concerned with giving effect to the will of the legislators who wrote them when the law was passed. That being said, there are many issues that legislatures could not have contemplated when they wrote the law.

It is therefore both important and challenging for courts to interpret language that was written with one set of circumstances in mind in a way that reflects the realities of the circumstances in which the law is being applied today.

If the VPPA is not fully applicable to the realities of the 2020s, it is always open for Congress to amend it. A clear statement of what activities are permitted and what activities are not would reduce confusion on the part of businesses that host and distribute video content, as well as uncertainty on the part of consumers who wish to know whether their personal viewing information will be shared with third parties.

Judicial interpretation and legislative amendment have different roles to play in the resolution of this controversy.

Why It Matters

A person’s viewing history is not as important as their financial or health records. However, the kind of information that can be inferred from a person’s viewing habits can sometimes be more interesting than the kinds of information that are often the objects of privacy laws.

Conclusion

The law needs to ensure that consumers can protect themselves from having their personal information shared in ways that they do not want, without unduly burdening companies with obligations to restrict information-sharing when the law does not require them to do so.

1. Salazar v. Paramount Global, Supreme Court of the United States, argued October 14, 2026; see Associated Press, “Blockbuster-era law governing privacy of video rentals gets a fresh look from the Supreme Court,” October 14, 2026. .