On Monday, January 26, 2026, the Supreme Court agreed to hear a case that will likely resolve the current circuit split on whether email newsletter subscribers are considered “consumers” for purposes of the Video Privacy Protection Act (“VPPA”).
In grant granting certiorari in Salazar v. Paramount Global, the Supreme Court will be weighing in on one of the three key issues that have defined VPPA class action and mass arbitration litigation over the past five years:
- Which businesses qualify as “video tape service providers” (“VTSPs”) that are subject to the statute;
- Whether cookie related data constitutes “personally identifiable information” (“PII”) under the VPPA; and
- Who is a “consumer” covered by the VPPA that can bring a VPPA claim or be part of a VPPA class.
The definition of VPPA “consumer” has become increasingly important for defendants as courts have construed other portions of the VPPA more broadly, such as which businesses are considered VTSPs under the statute. The Supreme Court’s conclusion on whether the VPPA’s definition of “consumer” refers to subscribers of all “goods or services” offered by a “video tape service provider” or only to subscribers of its “audiovisual goods or services” has the potential to dramatically affect the number of potential claimants, class sizes, and defendants in VPPA litigation.
Salazar v. Paramount Global: Who are VPPA Consumers?
In Paramount Global, the plaintiff alleged that he was a VPPA “consumer” of Paramount’s “goods or services” because he had an email subscription to a Paramount subsidiary’s e-newsletter, even though he had never subscribed to an audio or visual streaming service (paid or otherwise) offered by Paramount. Both the district court and the Sixth Circuit held that subscribing to an e-newsletter did not make Salazar a “subscriber of goods or services from a video tape service provider” for purposes of the VPPA. Accordingly, Salazar wasn’t a VPPA “consumer” who could bring a VPPA claim. Salazar appealed his loss at the Sixth Circuit to the Supreme Court, and the Court is now likely to hear his case during its 2026-2027 term.
The Sixth Circuit reached the exact opposite conclusion on newsletter “consumers” that the Second Circuit and Seventh Circuit have reached. In two other cases – including one where the Supreme Court denied certiorari, the Second and Seventh Circuits ruled that a VPPA consumer can be someone who merely subscribes to a newsletter.1 Indeed, the Second Circuit’s decision in Salazar v. National Basketball Association found that a rental, purchase, or subscription of anything from a video tape service provider is enough to make someone a VPPA consumer—for example purchasing a hammer from a Home Depot.
The case is likely to resolve the circuit split on this issue.
Where this fits into the VPPA landscape:
Over the past few years, dozens of VPPA cases have looked at which businesses are VTSPs, what data constitutes VPPA PII, and who is a VPPA “consumer.”
Courts have broadly construed the VTSP definition to include businesses who are only tangentially involved in providing audio/visual content.2 Those decisions opened the VPPA’s risk aperture to businesses that previously never would have been considered viable targets for class action litigation.
On the PII issue, we wrote last year about how the Second Circuit adopted the ordinary person standard for what constitutes PII under the VPPA. The Second Circuit held that under that standard a Facebook ID and URL of a page containing video is not VPPA PII. While other circuit courts have likewise adopted the “ordinary person” standard for what constitutes PII, no other circuit court has applied that standard in the context of the recent spate of VPPA cases about the use of cookies, pixels and similar ad tech.
Conclusion
The Supreme Court’s determination on whether newsletter subscribers will have significant impacts for VPPA litigation going forward. If the Court adopts a broader definition of “consumer,” it may open the floodgates for plaintiffs who subscribe to newsletters or similarly transact in non-video offerings with media companies to bring VPPA claims for any ad tech that runs behind videos on the business’s websites. However, if the Court adopts the narrower definition, VPPA claims brought by newsletter subscribers that have not transacted in any audiovisual materials will likely be brought to an end.
Given the narrow “consumer” question the Supreme Court will weigh in on, it’s unlikely the Court will address the question of what constitutes VPPA PII. Although, it’s worth watching to see what (if anything) the Court may say about Article III standing in VPPA cases. District courts and courts of appeal have routinely rejected early Article III standing challenges in VPPA cases (including in Paramount Global), but it’s possible the Court could use this opportunity to further elaborate on its Spokeo and TransUnion standing jurisprudence in the world of digital privacy claims.