Three Circuits, One Preposition: The VPPA "Consumer" Split Reaches the Supreme Court

Where the Split Sits in the Statute

The Video Privacy Protection Act carries its liability in a single sentence. Under 18 U.S.C. § 2710(b)(1) a "video tape service provider" may not knowingly disclose, to any person, personally identifiable information concerning any "consumer" of that provider. Three defined terms carry the sentence, and only one of them is contested here.

• § 2710(a)(1) — a "consumer" means any renter, purchaser, or subscriber of goods or services from a video tape service provider
• § 2710(a)(3) — "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
• § 2710(a)(4) — a "video tape service provider" means a person engaged in the business of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials

The question is what "goods or services" reaches. Does the phrase pick up everything a business sells once it also delivers video, so that someone who signed up for a free email newsletter counts? Or does the trailing phrase "from a video tape service provider" pull the goods and services back to audiovisual ones? Three courts of appeals have answered on nearly identical facts — a website that hosts video, a visitor who supplied an email address, and a Meta tracking pixel that reported viewing activity alongside a Facebook identifier.

Salazar v. NBA: Meaningful Variation and Superfluity

Michael Salazar signed up for the NBA's free online newsletter and watched videos on NBA.com. The Southern District of New York held he was not a "consumer." The Second Circuit vacated on 15 October 2024, reported at 118 F.4th 533.

Its reasoning runs on two textual moves. The first is meaningful variation: Congress wrote "audio visual materials" into the provider definition and into the disclosure provision at § 2710(b)(2)(D)(ii), but not into the consumer definition. Courts should not "lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply," especially where it "has shown elsewhere in the same statute that it knows how to make such a requirement manifest."

The second is superfluity. If "goods or services" already meant audiovisual materials, then the express reference in the definition of personally identifiable information to "specific video materials or services" would do no work. The court located the statute's limit there instead: the general store owner who rents out a few films "wouldn't be liable under the VPPA for disclosing particular customers' bread-buying habits," because that information is not covered by § 2710(a)(3). The panel closed by calling its ruling narrow, and left the NBA's alternative arguments to the district court.

On the separate question of whether a subscription requires money, the panel held it does not. If payment were essential, "subscriber" would be swallowed by "purchaser" and "renter," which the same definition already supplies. Salazar had traded his email and IP address for the newsletter, which sufficed at the pleading stage.

Gardner v. Me-TV: A Scooby-Doo Coffee Mug

Me-TV streams classic television. Anyone can watch without registering; supplying an email address and zip code unlocks reminders, a channel finder and comments. The district court dismissed on the ground that the plaintiffs had subscribed to an information service rather than a video service. Writing for the Seventh Circuit on 28 March 2025 in Gardner v. Me-TV National Limited Partnership, 132 F.4th 1022, Judge Easterbrook reversed.

The opinion quotes the definition three times and rests on what it does not say: "This does not say 'subscriber of … video services'; it says 'subscriber of … services from a video tape service provider.'" Had the plaintiffs signed up and never watched anything, but bought "a Flintstones sweatshirt or a Scooby Doo coffee mug or a Superman action figure or a Bugs Bunny puzzle" — all of which the site sells — they would have purchased goods from a video tape service provider. "Nothing in the Act says that the goods or services must be video tapes or streams."

On payment the court reasoned in the same register: it assumed that a subscriber gives value, then observed that "[i]n an Information Age, data can be worth more than money." Me-TV's response, the court said, was "based more on notions about what Congress was trying to achieve than on the meaning of the words Congress selected," and "statutes often overshoot or undershoot their goals." The panel expressly declined to address the older disagreement between the First and Eleventh Circuits about app downloads.

Salazar v. Paramount: Words Take Meaning From Their Neighbours

The same plaintiff sued Paramount Global over 247Sports.com. On 3 April 2025 the Sixth Circuit affirmed dismissal, reported at 133 F.4th 642, and said plainly that it was breaking with the other two circuits.

Judge Nalbandian's majority treats the broad reading as a failure of context rather than of text. Reading "goods or services" alone yields "a definition of 'consumer' based solely on the broadest imaginable definitions of its component words." The associated-words canon supplies the correction: a general term can be narrowed by what it sits beside, and the phrase "from a video tape service provider" "tethers the definition of 'consumer' to that of 'video tape service provider,'" whose own text names prerecorded cassettes and similar audiovisual materials.

The majority also attacks the superfluity argument at its hinge. Section 2710(a)(3) is introduced by "includes," not "means," which by ordinary drafting convention makes its examples illustrative rather than exhaustive. "[I]t seems odd that Congress would put such a pivotal limitation in a nonexclusive definition," the opinion observes, noting that the Second Circuit conceded the point in a footnote. Applying the narrower reading, the panel found Salazar had not pleaded that the newsletter itself was audiovisual, nor that he reached any video through it.

Judge Bloomekatz dissented from all but the standing analysis and from the judgment.

The Senate Report Cuts Both Ways

Both camps cite the same passage of S. Rep. No. 100-599 at 12, which says that a business engaged in selling video materials does not thereby bring all its products within the bill, and that a department store selling video tapes would extend protection only to the video transactions. The Sixth Circuit reads that as confirmation that the consumer definition is limited. The Second Circuit reads the surrounding text — which explains that "includes" was chosen to set "a minimum, but not exclusive, definition" — as confirmation that the limit lives in the definition of personally identifiable information. The report is doing different work in each opinion because each court has already located the statute's limiting device somewhere else.

Standing Is Not Where the Circuits Divide

It would be easy to mistake this for another Article III dispute. It is not. The Sixth Circuit reached standing on its own motion after Paramount abandoned the point, and held that disclosure of viewing history to Facebook is closely related to the traditional privacy torts, collecting agreement from the Third, Seventh, Ninth and Eleventh Circuits. The panel noted that although it disagreed with the Second Circuit's outcome, "we all agree with its decision to reach the merits." The division is over who the statute protects, not over who may be heard.

Argument Is Set for October

The Supreme Court granted certiorari in Salazar v. Paramount Global, No. 25-459, on 26 January 2026. The question presented recites that both courts below assumed Paramount is a video tape service provider and that what was disclosed is personally identifiable information, then isolates the single issue: whether "goods or services from a video tape service provider" refers to all of a provider's goods or services or only to its audiovisual ones. The docket records the petitioner's merits brief and argument set for Wednesday, 14 October 2026.

Several adjacent questions are not before the Court. The Second Circuit reserved whether the Act reaches live rather than prerecorded video, and whether someone becomes a subscriber through viewing alone. The Seventh Circuit reserved the app-download disagreement. And what counts as personally identifiable information — the provision the Second Circuit treats as the statute's real limit — was assumed rather than litigated below.

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