The Supreme Court’s Right Flank Wants to Give You Fewer Privacy Rights Than a Famous Judge

Because Paramount installed Facebook’s tracking pixel on the 247Sports website, every time Salazar requested or viewed a video, Paramount automatically disclosed the name and URL of the video to Facebook, along with Salazar’s Facebook ID, the unique identifier Facebook assigns to all of its users. Facebook then used that information to show Salazar targeted advertisements.

Privacy violations like this have become a routine part of life on the internet. According to a 2024 study on website privacy, more than half of all companies listed in the S&P 500 index use the “Meta pixel” on their sites, sharing people’s information with both Facebook and Instagram. But in theory, there are at least some legal boundaries.

Back in 1988, after a D.C. journalist obtained and published a list of movies rented by Supreme Court nominee Robert Bork, a scandalized Congress passed the Video Privacy Protection Act. To be clear: Congress was scandalized by the nonconsensual disclosure of Bork’s rental history, not the judge’s viewing habits, which were pretty unremarkable (unlike those of another judicial nominee who would be confirmed to the Supreme Court a few years later.)

The VPPA prohibits videotape service providers from knowingly disclosing the personally identifiable information of consumers, unless they get the consumers’ written consent. The statute defines “videotape service provider” to include any person in the business of delivering “prerecorded video cassette tapes or similar audio visual materials.” And the definition of “consumer” includes any “subscriber of goods or services” from the provider.

Here, Salazar subscribed to Paramount’s sports website. He requested audiovisual materials from Paramount, and Paramount delivered them. And then Paramount knowingly disclosed what he watched to Facebook without getting his consent. In September 2022, Salazar filed a class-action lawsuit, arguing that Paramount violated the VPPA.

Under the plain text of the Video Privacy Protection Act, Salazar should be able to hold Paramount liable for its disclosure of his video history. But during the oral arguments, the Republican-nominated justices peppered Salazar’s attorney with questions suggesting that imposing an atextual limitation onto the statute—one that would conveniently insulate corporations from legal liability when they intrude on consumers’ privacy for profit—was really just the commonsense thing to do. “Wouldn’t it be natural to think that goods or services from a videotape service provider would be video-related services?” asked Justice Clarence Thomas. Later in the oral argument, Thomas said he “always thought of 247Sports as a sports site,” and he questioned the “logic” of viewing the site as a “videotape service provider.”

Kavanaugh and Justice Amy Coney Barrett also worried that, if the VPPA weren’t limited to the long-defunct Blockbusters of the world, practically any business could find themselves liable under the law. Kavanaugh brought up concerns, raised by corporate interest groups in amicus briefs, that “every business in America that has video on its website” could be targeted.