Today the Supreme Court will hear arguments in a major case pitting privacy advocates against media companies. By any measure, Salazar v. Paramount Global is a blockbuster case in the making. At issue is the use of viewing habits by companies offering free subscriptions and material to the public. These companies make money by then using that history for tailored marketing programs. Michael Salazar is arguing that a Blockbuster-era law should prevent such sharing of his viewing history, a ruling that would have a massive impact on media and entertainment companies.
Salazar involves a law passed 40 years ago after a controversy during the confirmation hearings of Robert Bork, who was nominated by President Ronald Reagan. The press and pundits unleashed an unrelenting campaign against the conservative, including the Washington City Paper releasing his list of 146 movies rented from a video store. Congress moved to stop the abuse and passed the Video Privacy Protection Act to bar such disclosures.
Now, Michael Salazar is arguing that his free digital subscription for 247Sports.com, which is owned by Paramount Global, should also prevent the company from sharing his viewing habits with marketers. The case could have sweeping impacts on media and entertainment companies, which make much of their revenue through tailored marketing pitches based on such information.
The Video Privacy Protection Act (“VPPA”) bars a “video tape service provider” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.” 18 U.S.C. § 2710(b)(1). A “consumer” defined as a “subscriber of goods or services from a video tape service provider.” Id. § 2710(a)(1). The act further defines “personally identifiable information” as including information that “identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” Id. § 2710(a)(3).
On one level, the spirit of the Act is to protect the privacy of citizens in watch they choose to watch in their private lives. That is why privacy groups have rallied around the case. According to polls, over seven in ten Americans have concerns that they have little to no control over what companies do with their data.
Conversely, the companies argue that this is a free service and that marketing is how these companies make such material available without charge to the public.
Paramount is arguing for a narrow construction of the statute. It notes that “consumer” is a “renter, purchaser, or subscriber of goods or services” from a “video tape service provider.” 18 U.S.C. 2710(a)(1). It argues that Salazar is not a “consumer” because he did not “rent[], purchase[], or subscribe[]” to the delivery of any “video cassette tapes or similar audio visual materials.” 18 U.S.C. 2710(a)(1) and (4).
Salazar insists that he did subscribe when he signed up for a free, written email newsletter. However, the company argues that the newsletter is not a “video cassette tape[] or similar audio visual material[],” ibid., so he is not a “consumer” under the statute.
It is portraying the case as a distortion of a now dated law: “The VPPA is a Blockbuster-era statute barring the non-consensual disclosure by video rental stores of the rental history of individual patrons. Salazar seeks to transmogrify it into a prohibition against targeted advertising on the Internet.”
Like many sites, 247Sports allows access outside of a paywall by making revenue through advertising. While many consumers do not like their viewing history shared, they also do not like the increasing costs of having to pay for access to games and videos. It is a tradeoff that the lower courts felt was permissible in rejecting Salazar’s claims.
This is a tough case of statutory interpretation in seeking to apply an older statute to new media conditions and practices.
Courts have found various flaws in Salazar’s claims ranging from claiming to be a “consumer” within the meaning of the VPPA to whether Paramount is a “video tape service provider” or whether the information is “personally identifiable.”
If subscribing to a free newsletter is the same as subscribing to actual audiovisual content, the case could deliver a massive blow to media revenue streams.
Ultimately, Congress could step in to tweak the law if the Court rules for Salazar. When the Court accepts a case, there is a higher likelihood that it will reverse the underlying opinion. However, it only takes four justices to accept a case and this Court tends to narrowly construe such laws. The countervailing issue here is that the Act was designed with the stated purpose of protecting privacy.
I teach “legisprudence” theories in my torts and Supreme Court classes in how courts interpret statutes with “gaps” or “ambiguities.”
Some would argue that a court should gravitate toward the narrow textual meaning given the sweeping impact of a broader interpretation. Figures such as Judge Frank Easterbrook argued for upholding the “deal” of legislation in strictly interpreting such laws by not gap-filling. Instead, the court can leave it to Congress to resolve ambiguities as the branch accountable to voters.
Another approach, advocated by Professor Jonathan Macey, would apply the “public-regarding purpose” of the law — fill in the gap or ambiguity by reference to the stated “public-regarding purpose” of the law. In this case, the public-regarding purpose is privacy.
The Court often gets sticker shock in adopting broader interpretations that could impact whole industries in such a transformative way. It much prefers to defer to Congress on such trade-offs. Yet, rather than letting the Sixth Circuit opinion in favor of Paramount stand, four justices decided that they wanted to deal with this question. It could prove to be a close case.
“Michael Salazar is arguing that . . .” (JT)
He filed the exact same bogus, class-action, rent-seeking lawsuit against the NBA.
When Democrats when bigly in November, they will have Trump to thank. Ha! Ha! Ha!
Yes, communism and Islam are sure election winners in the USA.
This is a tough one. I do not like my name and information shared and am very hard on what I allow to be tracked. Yet, I am not one for paying either. There is just too much and too many sites to afford it all.
Still, it feels like a game is being played when my information is shared among those I have zero idea about or desire to do business. I love the idea of a business relationship with some third party I have no thought about because my original free site sold my information to them and because the third party has a relationship with them and I have a relationship with the free site, the third party claims we now have a relationship and they get too pester me.
I do understand nothing is free, but I also understand it is my personal information too. I am old enough to understand the Robert Bork mess. Think of modern doxxing. It was wrong then and wrong now. This is the real lesson and it is about privacy.
Companies need to make money to survive, but they should not be allowed to run wild either. I think this one is fixable.
I would say Congress can tweak this one, but Congress cannot seem to tie their own shoes right now, so the courts will probably have to step in for now at least. I can only hope the scales balance in this case.
I wish Justice Kavanaugh had given consideration to the impact on college football before he created the chaos that exists today. I wish Kustice Blackmon had considered the broader ramifications when he drafted Rove v Wade. Society would be better had they done so.
WRT the right to privacy I am more concerned with the encroachment from government than private concerns. As we have witnessed, our government’s enormous power held in the wrong hangs can be turned against individuals or whole segments of the citizenry for nefarious purposes. The recent debates regarding flock cameras troubles me. In the right hands, it can be an obvious benefit to law enforcement and public security. The problem arises when control of the technology changes hands to a party who doesn’t recognize boundaries. I have a few subscriptions which I value and expect the price of admission to be some junk mail which I can deal with. My hyper skepticism protects me from scams so far.
Jake Paul should read “Indispensable Right”.
Participating in democracy is a full time job.
I would love it if these CEOs and Silicon Valley goons got their a$$es handed to them. Web 2.0 tech companies are the devil, and entirely antithetical to why the WWW was created in the first place. The AI companies have somehow taken that model of insidiousness and made it into an art form, and they do not give two effs about the harm done. None of these people are well. This needed to happen 20 years ago, and their (the tech companies) immunity needs to be revoked, IMO.
The TOC’s M.Salazar accepted covers sharing with 3rd parties. Admittedly I do not know that as a fact, but TOC’s cover a lot of legal ground. Ever read them? Me, nope. But I’m not signing-up for anything that is free. And folks, always use disposable email addresses and never ever use your real name and address.
There has to be a point where the individual is responsible for his own actions. I am pelted with advertisements every day, and I’m certain many come from my purchasing and/or viewing habits. I routinely reject them. I do not ask the government for protection. I just delete them or say no, since I assume they are scams.
Poor Michael Salazar has his “horror on Elm Street” a-comin’ when he hits retirement age. That’s when the individual is hit constantly, dozens of times every day. All kinds of age, income, phone numbers, and email addresses end up in the hands of thousands of scammers who buy lists from banks, credit card companies, states, and, I’m sure, the Social Security Administration. Here are a few examples.
Of course, it’s old folks being targeted. So nobody cares very much.
It doesn’t matter whether you’re liberal or conservative. Scammers are politically neutral. My recommendation is to give a universal NO. Sure, you may miss a deal, but this is rare.
Sure Stevey, whatever!
The right to privacy. It’s an interesting and important legal concept. The Constitution does not mention a right of privacy. The Opinion written by Supreme Court Justice William O. Douglas (known as a liberal’s liberal) in “Griswold v. Connecticut” found a right of privacy under what he called a penumbra of rights. I guess if you look hard enough, you can find anything you want to find.
With that as a backdrop, I’d like to suggest that invasion of privacy by corporations should come as no surprise. Only naivety could make someone who takes “free” stuff from the internet to think that it’s really free. No, it’s not invasion of privacy by corporations that should surprise anyone. To the contrary, it’s invasion of privacy by our government (the people who we elect to protect and preserve our Constitution) that should surprise everyone.
I commend every right of privacy advocate (every Fourth Amendment advocate) to read the December 16, 2013 Memorandum Opinion by Judge Richard J. Leon in “Klayman v. Obama”, United States District Court for the District of Columbia, Civil Action No. 13-0851. Here is a little of what Judge Leon said about the Obama Administration’s wiretapping of almost everyone in America. It uses “almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States”. “I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power’ would be aghast.”
It’s important to remember that almost every politician, including President Barak H. Obama (known as a liberal’s liberal), can act very differently than the way he or she promises to act. And having our privacy attacked by our own government is a much greater concern than having it attacked by corporations.