Amicus Curiae Brief — Michael Salazar, Petitioner v. Paramount Global, dba 247Sports

No. 25-459

IN THE

Supreme Court of the United States

____________________

MICHAEL SALAZAR,

Petitioner,

v.

PARAMOUNT GLOBAL, DBA 247SPORTS

Respondent.

____________________

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

____________________

BRIEF OF AMICI CURIAE THE MOTION PICTURE

ASSOCIATION, INC., AND NCTA – THE INTERNET &

TELEVISION ASSOCIATION IN SUPPORT OF

RESPONDENT

____________________

JONATHAN BLAVIN

GINGER D. ANDERS

STEPHANIE G. HERRERA

Counsel of Record

MUNGER, TOLLES & OLSON LLP CYNTHIA Y. LONG

560 Mission Street

MUNGER, TOLLES & OLSON LLP

27th Floor

601 Massachusetts Ave. NW

San Francisco, CA 94105

Suite 500E

(415) 512-4000

Washington, DC 20001-5369

Jonathan.Blavin@mto.com

(202) 220-1100

Ginger.Anders@mto.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................... i

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 2

ARGUMENT ................................................................ 6

I.

Petitioner’s Reading Of The VPPA

Ignores Its Context And Purpose. .................... 6

II.

Applying

Petitioner’s

Reading Of

“Consumer” To Today’s Media Ecosystem

Would Convert The VPPA Into A

Sweeping

Data

Privacy

Regime

Untethered From The Statute Congress

Enacted. ............................................................. 9

III.

Respondent’s

Construction,

Not

Petitioner’s, Accounts For Statutory

Text, Structure, And Congressional

Intent. .............................................................. 17

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .............................................. 20

Carroll v. Gen. Mills, Inc.,

No. 23-cv-1746, 2023 WL 4361093

(C.D. Cal. June 26, 2023) ..................................... 16

Collins v. Toledo Blade,

720 F. Supp. 3d 543 (N.D. Ohio 2024) ............. 5, 16

Dubin v. United States,

599 U.S. 110 (2023) .............................................. 19

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ................................................ 8

Fischer v. United States,

603 U.S. 480 (2024) .................................... 8, 18, 22

Ghanaat v. Numerade Labs, Inc.,

689 F. Supp. 3d 714 (N.D. Cal. 2023) .................. 16

Graham County Soil and Water

Conservation Dist. v. United States ex

rel. Wilson,

559 U.S. 280 (2010) ................................................ 7

Gustafson v. Alloyd Co.,

513 U.S. 561 (1995) ................................................ 9

Kueppers v. Zumba Fitness, LLC,

805 F. Supp. 3d 1226 (S.D. Fla. 2025) ............. 5, 16

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 22

Martin v. Meredith Corp.,

657 F. Supp. 3d 277 (S.D.N.Y. 2023) ............. 16, 17

In re Nickelodeon Consumer Priv. Litig.,

827 F.3d 262 (3d Cir. 2016) ............................ 15, 24

Reves v. Ernst & Young,

494 U.S. 56 (1990) .................................................. 9

Sellers v. Bleacher Rep., Inc.,

No. 23-cv-368, 2023 WL 4850180

(N.D. Cal. July 28, 2023) .................................. 5, 17

Solomon v. Flipps Media, Inc.,

136 F.4th 41 (2d Cir. 2025) .................................. 16

United States v. Fischer,

64 F.4th 329 (D.C. Cir. 2023) ........................... 8, 18

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................ 8

Yates v. United States,

574 U.S. 528 (2015) .................................... 8, 18, 20

Yershov v. Gannett Satellite Info.

Network,

820 F.3d 482 (1st Cir. 2016) ................................. 15

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

FEDERAL STATUTES

Video Privacy Protection Act,

18 U.S.C. 2710 .................................................. 2, 20

18 U.S.C. 2710(a)(1).......................... 3, 7, 10, 11, 18

18 U.S.C. 2710(a)(3) ....................................... 19, 20

18 U.S.C. 2710(a)(4) ......................................... 6, 19

18 U.S.C. 2710(b) .................................................. 20

18 U.S.C. 2710(b)(1) ............................................... 6

18 U.S.C. 2710(b)(2)(B)(i)-(iii) .............................. 21

18 U.S.C. 2710(c)(2)(A) ......................................... 14

LEGISLATIVE MATERIALS

Hearing Before the Subcomm. on Priv.,

Tech., and the L. of the S. Comm. On

the Judiciary, 112th Cong., 2d Sess.

(2012) .............................................................. 23, 24

Pub. L. No. 112-258, 126 Stat. 2414

(2013) .................................................................... 23

S. Rep. No. 258, 112th Cong., 2d Sess.

(2012) .................................................................... 23

S. Rep. No. 599, 100th Cong., 2d Sess.

(1988) .................................................................... 22

v

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

Amended Petition to Compel

Arbitration, Allen v. BAMTech, LLC,

No. 2:25-cv-3861 (C.D. Cal. July 1,

2025), Dkt. No. 27................................................. 14

Archis A. Parasharami & Sophie

Mancall-Bitel, Pixel Tools Spur a

New Wave of Class Action Litigation

Under the Video Privacy Protection

Act, American Bar Association

Business Law Today (Apr. 22, 2025) ................... 14

Surge of Consumer Privacy Litigation

Based on the Video Privacy

Protection Act, 79 Bus. Law. 233

(2024) .................................................................... 14

1

INTEREST OF AMICI CURIAE 1

The Motion Picture Association, Inc. (“MPA”) is a

not-for-profit trade association founded in 1922. The

MPA serves as the voice and advocate of the motion

picture and television industry, advancing the

business and art of storytelling, protecting the creative

and artistic freedoms of storytellers, and bringing

entertainment and inspiration to audiences

worldwide.

The MPA’s member companies are

Amazon Studios LLC; Netflix Studios, LLC;

Paramount Pictures Corporation; Sony Pictures

Entertainment Inc.; Universal City Studios LLC; Walt

Disney Studios Motion Pictures; and Warner Bros.

Entertainment Inc. The MPA’s members and their

affiliates are leading producers and distributors in the

theatrical, television, and home-entertainment

markets in the United States and abroad.

NCTA – The Internet & Television Association

(“NCTA”) represents network innovators and content

creators that entertain, inform, and connect

consumers. NCTA member companies connect over 82

million customers to high-speed internet, video, and

other services, and include video programming

networks with a rich history of creating awardwinning TV programming.

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part, and that no entity or

person other than amici and their counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. Respondent Paramount Global is a member of amicus

NCTA and a corporate affiliate of Paramount Pictures

Corporation, which is a member of amicus MPA. Neither

respondent nor its affiliates made any monetary contribution

intended to fund the preparation or submission of this brief.

1

2

The members of the MPA and NCTA are leading

providers of audio visual materials in the United

States and therefore rely upon the correct application

of the Video Privacy Protection Act (“VPPA”), 18

U.S.C. 2710, to protect their commercial interests. At

the same time, amici’s members are parts of

diversified corporate enterprises that engage in

numerous lines of business. Those distinct lines of

business often involve subscriptions, purchases, or

other consumer relationships that have nothing to do

with providing video tape services but nevertheless

would be covered by the VPPA under petitioner’s

interpretation.

In recent years, amici’s member companies have

been besieged by claims under the VPPA based on

increasingly expansive interpretations of the statute.

That trend has imposed significant burdens on the

media and entertainment industries, among others,

and has generated widespread uncertainty regarding

the statute’s scope. The MPA and NCTA therefore

have a substantial interest in ensuring that the VPPA

is interpreted in a manner that is consistent with its

text and purpose: preventing the unauthorized

disclosure of consumers’ video transactions.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Congress enacted the Video Privacy Protection Act

in 1988 to address a specific concern: the disclosure of

consumers’ video-rental histories without consent.

When the statute was enacted, people had to actively

seek out video content, and they obtained it in the form

of video tapes rented or purchased from brick-andmortar stores whose core business was the rental and

sale of video tapes. The VPPA thus regulated a

discrete set of intentional video transactions. The

3

statute accordingly defines its coverage by reference to

the two sides of such video transactions: the “video

tape service provider” that provides videos to

“consumers,” and the “consumer” who “rent[s],

purchase[s], or subscribe[s] [to] goods or services from

a video tape service provider.” 18 U.S.C. 2710(a)(1).

The statute prohibits certain disclosures by video tape

service providers about such video transactions.

Petitioner’s construction disregards the VPPA’s

focus on video transactions by divorcing the

participants from the transaction that connects them

and analyzing them as unrelated statutory concepts.

Specifically, petitioner contends that a “consumer”

should be construed as anyone who subscribes to,

rents, or purchases any goods or services, whether or

not those goods or services bear any relation to audio

visual materials, from a company that also provides

video content. That construction would have sweeping

consequences

in

today’s

media

ecosystem,

transforming the VPPA from its original form as a

narrow statute regulating video transactions into a

wide-ranging internet privacy statute.

Those consequences flow from two fundamental

shifts in the media ecosystem since Congress enacted

the VPPA in 1988. First, video content is now

ubiquitous on the internet, and individuals encounter

videos all the time, even without seeking them out.

Consumers encounter videos throughout their day,

simply by visiting news websites, search engines, and

retail websites. Second, much more so today than in

1988, companies that provide audio visual materials

are often parts of extensive enterprises that operate

across far-ranging lines of business. For example, an

individual might buy groceries from Whole Foods

(owned and operated by Amazon.com, Inc.), then

4

watch a free video about a yoga mat she is considering

purchasing from Amazon.com (also owned and

operated by Amazon.com, Inc.). Under petitioner’s

construction, that grocery shopper would be a

“consumer” under the VPPA because she purchased

“goods or services” (groceries) from a company that

also delivered free, unrelated video content (about a

yoga mat).

Such a broad reading of the VPPA would impose

immense burdens on industry and consumers alike.

Under petitioner’s theory, virtually everyone would be

a “consumer.” To comply with the VPPA, a company

would need to determine whether an individual who

encounters a free video on any webpage affiliated with

the company has obtained any goods or services from

the company, online or in person, at any point within

the statute of limitations period.

That could

necessitate the aggregation of consumer information

across disparate lines of business in ways Congress

never contemplated and privacy advocates ordinarily

oppose. Alternatively, compliance could require a

company somehow to obtain informed consent from

every individual it transacts with, likely repeatedly.

Companies would have to undertake these onerous

steps all without knowing whether, when, or under

what circumstances those individuals will ever

request or obtain video content from the company.

Those results would be unadministrable for companies

and create friction for consumers across a wide range

of commercial transactions. Congress enacted a

targeted statute focused on video transactions, not an

all-purpose regulation of ordinary data practices

across the modern economy.

For companies, the consequences of petitioner’s

broad reading are magnified by increasingly

5

expansive, and often conflicting, interpretations of

other VPPA provisions, which have generated a wave

of litigation and staggering potential exposure for

companies. Some lower courts have held, for example,

that a local print newspaper can be a “video tape

service provider,” Collins v. Toledo Blade, 720 F. Supp.

3d 543, 553-554 (N.D. Ohio 2024); that disclosing the

URL for a webpage can be a disclosure of “specific

video materials or services,” Kueppers v. Zumba

Fitness, LLC, 805 F. Supp. 3d 1226, 1231 (S.D. Fla.

2025) (Kueppers); and that a person “request[s] or

obtain[s]” specific video materials simply by visiting a

webpage that auto-plays a video, Sellers v. Bleacher

Rep., Inc., No. 23-cv-368, 2023 WL 4850180, at *4

(N.D. Cal. July 28, 2023) (Sellers). Other courts have

disagreed on all those points. Companies thus face

substantial uncertainty about the statute’s reach,

leaving companies vulnerable to class actions and

mass arbitrations with uncertain outcomes despite

diligent efforts to comply.

The resulting

unpredictability, combined with the VPPA’s statutory

damages of $2,500 per violation, creates the prospect

of enormous aggregate liability, even for questionable

claims. Put concretely, 10,000 visitors to a website

featuring free video content could create the prospect

of up to $25 million in VPPA liability. Petitioner’s

construction of “consumer” would exacerbate those

dynamics by further expanding the universe of

conduct potentially subject to the statute, inviting

further litigation and increasing compliance

uncertainty and potential exposure for all companies,

including amici’s members.

In all events, petitioner’s effort in this case to

transform the VPPA by expanding its definition of

“consumer” is foreclosed by the traditional tools of

statutory interpretation. As the court below held, the

6

VPPA should be construed so that an individual

becomes a “consumer” only when she rents, purchases,

or subscribes to audio visual goods or services from a

video

tape

service

provider.

Petitioner’s

construction—that “consumer” means any person who

transacts in any goods and services, whether or not

related to video content—is not compatible with the

statute’s focus on video transactions. This Court has

repeatedly declined to give statutory terms their

broadest construction where doing so would divorce

the statute from the problem Congress sought to

address. The VPPA’s surrounding provisions and

structure further confirm that “goods or services” must

be limited to audio visual goods or services.

Petitioner’s construction, moreover, would create

several statutory anomalies and render the statute’s

consent provisions unworkable. This Court should

affirm the court of appeals’ construction.

ARGUMENT

I.

Petitioner’s Reading Of The VPPA Ignores

Its Context And Purpose.

Petitioner’s construction of the VPPA’s definition of

“consumer” relies on blinding oneself to the statutory

context and Congress’s basic purpose in enacting the

statute. The VPPA bars a “video tape service provider”

from

disclosing

the

“personally

identifiable

information” of “any consumer of such provider.” 18

U.S.C. 2710(b)(1). A “video tape service provider” is

any person “engaged in the business of * * * rental,

sale, or delivery of prerecorded video cassette tapes or

similar audio visual materials.” 18 U.S.C. 2710(a)(4). 2

Because the scope of the term “video tape service provider” is

not before the Court, we assume that entities that deliver

(footnote continued)

2

7

A “consumer,” in turn, is defined as “any renter,

purchaser, or subscriber of goods or services from a

video tape service provider.” 18 U.S.C. 2710(a)(1).

The definitions of “consumer” and “video tape service

provider” are thus interdependent; the terms cannot

be construed in isolation.

Petitioner, however, asks this Court to do just that.

Petitioner contends that “consumer” refers to “every

‘consumer’” who buys any sort of “goods or services”

from a company that also delivers audio visual

content, separate and apart from any transaction in

audio visual materials. Pet. Br. 10-11. On petitioner’s

reading, then, a person who engages in any

commercial transaction with a company and

encounters a free video in a separate, unrelated

interaction with the same company would be a

“consumer” under the VPPA. Petitioner insists that

such a broad construction of “goods or services” must

control because it is the “ordinary meaning” of the

phrase. Pet. Br. 17-18.

Petitioner’s construction is at odds with a

fundamental principle of statutory construction: the

Court’s “duty [is] to construe statutes, not isolated

provisions.”

Graham County Soil and Water

Conservation Dist. v. United States ex rel. Wilson, 559

U.S. 280, 290 (2010) (internal quotation marks

omitted). Petitioner argues that the absence of

immediately adjacent limiting phrases in the

“consumer” definition means that “goods or services”

must be construed to have its broadest possible scope,

without regard to the VPPA’s laser focus on a

transaction in audio visual materials. But a “statute’s

prerecorded videos on a website can constitute “video tape service

providers.”

8

meaning does not always ‘turn solely’ on the broadest

imaginable ‘definitions of its component words’”;

rather, “[l]inguistic and statutory context also matter.”

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018)

(citation omitted). And, as particularly relevant here,

attention to statutory context is critical where one

party’s interpretation would extend the statute’s reach

well beyond the problem the statute was “enacted to

address” and the “context from which the statute

arose.” Fischer v. United States, 603 U.S. 480, 498

(2024) (Fischer).

Accordingly, this Court has repeatedly rejected

broad or literal statutory constructions that would

expand the statute’s reach beyond Congress’s evident

purpose. Yates v. United States, 574 U.S. 528, 536

(2015) (Yates); Fischer, 603 U.S. at 498 (“Given that

subsection (c)(2) was enacted to address the Enron

disaster, not some further flung set of dangers, it is

unlikely that Congress responded with such an

unfocused and ‘grossly incommensurate patch.’”)

(quoting United States v. Fischer, 64 F.4th 329, 376

(D.C. Cir. 2023) (Katsas, J., dissenting)); West Virginia

v. EPA, 597 U.S. 697, 722 (2022) (explaining that one

element of statutory context is Congress’s evident

intent, and that the Court rejects constructions that,

despite their “colorable textual basis,” grant more

administrative authority than Congress could have

intended). In Fischer, for example, the Court declined

to adopt a maximalist reading of the phrase “otherwise

obstructs * * * any official proceeding” that would have

transformed the statute in question from one directed

at “closing the Enron gap” by prohibiting corporate

destruction of documents into a “one-size-fits-all

solution to obstruction of justice.” 603 U.S. at 491-493,

497. And in Reves v. Ernst & Young, the Court held

that in context “the phrase ‘any note’ should not be

9

interpreted to mean literally ‘any note,’ but must be

understood against the backdrop of what Congress

was attempting to accomplish in enacting the

Securities Acts.” 494 U.S. 56, 63 (1990); accord

Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).

Petitioner’s construction, by ignoring the

surrounding context of the phrase “goods or services,”

would have precisely the transformative effect on the

statute that this Court has repeatedly rejected. By

construing “goods or services” to mean any “goods or

services,” separate and apart from any transaction in

audio visual services, petitioner would transform the

VPPA from the narrow regulation of video

transactions that Congress enacted into a sweeping

general consumer privacy regime that Congress never

contemplated.

That result is made especially clear by examining

the sweeping and perverse consequences that the

VPPA, if construed as petitioner urges, would impose

on today’s media ecosystem.

Amici, as leading

contemporary providers of audio visual materials, are

well placed to explain those consequences. We first

address the ways in which petitioner’s construction

would detach the VPPA from its original moorings,

and then explain how other benchmarks of statutory

interpretation—the statutory context, purpose, and

history—confirm that the VPPA cannot be construed

as broadly as petitioner urges.

II.

Applying

Petitioner’s

Reading

Of

“Consumer” To Today’s Media Ecosystem

Would Convert The VPPA Into A Sweeping

Data Privacy Regime Untethered From

The Statute Congress Enacted.

A.

Today’s media ecosystem bears little

resemblance to the one that existed when the VPPA

10

was enacted. As petitioner acknowledges, Congress

enacted the VPPA in response to the disclosure of

Judge Robert Bork’s video rental history from a brickand-mortar video store engaged principally in the

rental and sale of video materials. Pet. Br. 4. The

statute was therefore designed to address a specific

privacy issue: certain disclosures of information that

would reveal the specific videos an identifiable person

rented or purchased. When the VPPA was enacted in

1988, that privacy issue arose overwhelmingly in the

context of discrete, intentional transactions involving

businesses primarily engaged in the provision of video

content. That is, individuals generally encountered

audio visual materials only through purposeful

transactions with video content distributors and brickand-mortar video-rental stores.

The VPPA’s definition of “consumer” reflects that

commercial and technological backdrop. The statute

defines “consumer” as a “renter, purchaser, or

subscriber of goods or services from a video tape service

provider.” 18 U.S.C. 2710(a)(1) (emphasis added).

When the statute was enacted, that definition would

have covered an individual who purchased or rented a

video tape from the local Blockbuster or an individual

who subscribed to cable channels on their home

television.

That is, the statutory definition of

“consumer” would have applied only to purposeful

transactions in audio visual content with businesses

primarily engaged in providing audio visual content.

Now, by contrast, individuals consume audio visual

content all the time, often without seeking it out or

without engaging in any commercial transaction.

Videos are ubiquitous on today’s internet, appearing

on webpages from news sites to online retailers to

social media platforms, most of which are operated by

11

companies whose core businesses have nothing to do

with audio visual goods and services. Reading a Wall

Street Journal article might trigger an unrelated video

ad to play. Researching a hotel on its website might

involve viewing a video showing off the property.

Browsing a clothing store’s website might lead a

person to watch a video of a real person modeling a

clothing item that is being offered for sale. In other

words, consumers encounter video content constantly

throughout the day, particularly online, often without

deliberately seeking it out or engaging in any

commercial transaction. These everyday encounters

with free video content would not themselves make the

viewers “consumer[s]” under the VPPA—because such

viewers are not “renter[s], purchaser[s], or

subscriber[s]” of free videos that they encounter and

view on websites. 18 U.S.C. 2710(a)(1). But under

petitioner’s construction, such viewers may become

“consumer[s]” under the VPPA by engaging in any

commercial transaction with the same company—even

if that transaction is entirely separate from and

unrelated to the video viewing.

That reading could bring a broad swath of

commerce within the ambit of the VPPA. Many of

today’s video producers and distributors are part of

large conglomerates with increasingly diverse lines of

business that have nothing to do with video. For

example, Amazon.com, Inc., the parent company of

one of the MPA’s members, operates an e-commerce

platform and owns entities including Amazon Web

Services, Zappos, Goodreads, Ring, and Whole Foods

Market. Americans engage in countless transactions

with those businesses every day that have no relation

whatsoever to video content. Likewise, Americans

encounter videos on any number of webpages

associated with those businesses every day, whether

12

or not any commercial transaction occurs. The same

is true of amici’s other members.

Given the commercial and technological evolution

of the media landscape, petitioner’s myopic reading of

“consumer” could extend the VPPA’s reach to a litany

of everyday consumer transactions that do not include

audio visual goods or services. So, for example, a

grocery shopper who buys a piece of fruit from Whole

Foods Market and later encounters a free video about

a yoga mat on Amazon.com could argue that they are

a “consumer” under the VPPA. So too could a person

who watches a free video on a news website and later

makes a purchase in a theme park operated by the

same company. At the same time, under petitioner’s

reading, a person who interacted with the same free

online videos, but did not make the brick-and-mortar

purchases of unrelated goods, would not have a VPPA

claim. Given the VPPA’s focus on video transactions,

such disparate treatment of online video viewers

would make no sense.

Given that these sorts of encounters with videos

are ubiquitous in modern online activity, petitioner’s

construction would dramatically widen the scope of

who is a “consumer.” Vast numbers of people engage

in a broad range of commercial transactions with

amici’s members.

If petitioner’s definition of

“consumer” were adopted, every one of those

individuals would become a “consumer” solely by

virtue of those interactions. Separate from and

unrelated to such commercial transactions, those

customers might encounter free video content on any

number of websites associated with amici’s members.

Under petitioner’s reading, each of those customers

could then claim entitlement to the VPPA’s

protections based on those encounters.

Those

13

individuals could accordingly attempt to assert a

VPPA claim regarding any of those websites.

Petitioner’s interpretation would thus extend a

statute that Congress intended to regulate purposeful

transactions in video tapes into a comprehensive

regulation of innumerable commercial transactions

across a wide range of industries that do not involve

the provision of audio visual content.

B. According that sweeping scope to the VPPA

would inflict significant adverse consequences on

companies and consumers alike. To comply with the

VPPA as petitioner construes it, a company would be

required to determine whether any given individual

who encounters a free video on any webpage affiliated

with the company has rented, purchased, or

subscribed to any of the company’s goods or services,

online or in brick-and-mortar stores, across all the

company’s various lines of business, at any point

within the statute of limitations period. For instance,

a company might need to cross-reference information

about a retail customer’s purchases with data

regarding the same customer’s unrelated website

visits to determine whether that customer

encountered any free videos online. Only by tracking

and aggregating information about customers across

disparate lines of business—the very activity that

privacy advocates and petitioner’s amici warn against,

see EPIC Amicus Br. 13-14—would companies be able

to ascertain who counts as a “consumer” under the

VPPA.

Congress enacted the VPPA to protect

consumers from the specific risk of their video

transactions being disclosed, not to require companies

to monitor and aggregate data about customers of nonvideo goods and services who happen separately to

encounter free videos that are unrelated to their

commercial transactions.

14

Industry, too, would suffer from petitioner’s

sweeping interpretation. Amici’s members transact

and interact with hundreds of millions of people across

their various lines of business every day. If every one

of those individuals could become a “consumer” for

purposes of the VPPA simply by encountering a free

video online, amici’s members could face untold

numbers of claims. That concern is heightened by the

flood of class actions and mass arbitrations under the

VPPA. Hundreds of VPPA lawsuits are filed annually,

see, e.g., Archis A. Parasharami & Sophie MancallBitel, Pixel Tools Spur a New Wave of Class Action

Litigation Under the Video Privacy Protection Act,

American Bar Association Business Law Today (Apr.

22, 2025) 3 (noting two hundred VPPA cases filed

annually), and an untold number of mass arbitrations

involving thousands, or even tens of thousands, of

claims have been initiated, see, e.g., Amended Petition

to Compel Arbitration, Allen v. BAMTech, LLC, No.

2:25-cv-3861 (C.D. Cal. July 1, 2025), Dkt. No. 27

(petition to compel arbitration on behalf of 3,553

claimants following a threatened mass arbitration of

tens of thousands of claims). Because each claim

carries potential statutory damages of $2,500, 18

U.S.C. 2710(c)(2)(A), the proliferation of VPPA mass

actions “poses a significant risk to a wide variety of

companies across industries.” Meg Strickler, Surge of

Consumer Privacy Litigation Based on the Video

Privacy Protection Act, 79 Bus. Law. 233, 238 (2024).

Given the proliferation of class and mass arbitrations

under the VPPA, petitioner’s interpretation could

create staggering potential exposure for amici’s

https://businesslawtoday.org/2025/04/pixel-tools-spur-a-newwave-of-class-action-litigation-under-the-video-privacyprotection-act.

3

15

members—regardless of whether they have disclosed

any personally identifiable information. Id. at 234

(explaining that “[t]he availability of statutory

damages has incentivized the spate of class actions

brought by the plaintiff’s bar and contributed to the

high stakes involved in recent cases seen against

website operators”). Indeed, a mass arbitration could

result in millions of dollars in filing fees alone, a

serious fairness concern that has caused arbitration

providers to revisit their mass action practices. See

JAMS Mass Arbitration Procedures and Guidelines

(May 1, 2024) 4 (“The filing of dozens, hundreds or even

thousands of individual claims may create

administrative burden and onerous fees, as well as

delay and potential unfairness to all Parties, all of

which may impair the integrity of the Arbitration

process.”). Those potentially sky-high costs could

transform even meritless VPPA claims into bet-thecompany litigation.

Those concerns have been exacerbated by the

uncertainty resulting from some lower courts’ broad

interpretations of other key provisions of the VPPA.

The lower courts have disagreed on the interpretation

of nearly every major substantive provision of the

statute. Notably, lower courts have adopted different

definitions of “personally identifiable information.”

Compare In re Nickelodeon Consumer Priv. Litig., 827

F.3d 262, 267, 284, 289-290 (3d Cir. 2016)

(Nickelodeon) (“personally identifiable information”

means “the kind of information that would readily

permit an ordinary person to identify a specific

individual’s video-watching behavior” (emphasis

added)), with Yershov v. Gannett Satellite Info.

Network, 820 F.3d 482, 486 (1st Cir. 2016) (“personally

4

https://www.jamsadr.com/mass-arbitration-procedures.

16

identifiable

information”

means

“information

reasonably and foreseeably likely to reveal

which * * * videos [a person] has obtained”). There is

thus widespread disagreement among lower courts as

to whether similar data constitute personally

identifiable information that is subject to the VPPA’s

disclosure requirements. Compare, e.g., Solomon v.

Flipps Media, Inc., 136 F.4th 41, 54-55 (2d Cir. 2025)

(Facebook ID is not “personally identifiable

information”), with, e.g., Ghanaat v. Numerade Labs,

Inc., 689 F. Supp. 3d 714, 720 (N.D. Cal. 2023)

(Facebook ID can be “personally identifiable

information” if plaintiff also alleges personal

information existed on their Facebook page).

Lower courts have also diverged on whether

disclosing the URL of a page visited can satisfy the

VPPA’s prohibition against disclosing the “specific

video materials or services” requested or obtained.

Compare, e.g., Kueppers, 805 F. Supp. 3d at 1231

(finding alleged disclosure of “URL to a webpage

containing the video” sufficient to state a claim, and

collecting cases holding the same), with, e.g., Martin v.

Meredith Corp., 657 F. Supp. 3d 277, 285 (S.D.N.Y.

2023) (Martin) (holding opposite).

As another

example, lower courts disagree on whether companies

principally engaged in a line of business other than the

provision of audio visual materials, such as a local

newspaper, are “video tape service providers” under

the VPPA. Compare, e.g., Collins v. Toledo Blade, 720

F. Supp. 3d 543, 553-554 (N.D. Ohio 2024) (local print

newspaper is a “video tape service provider”), with,

e.g., Carroll v. Gen. Mills, Inc., No. 23-cv-1746, 2023

WL 4361093, at *3 (C.D. Cal. June 26, 2023) (General

Mills is not). And the lower courts have further split

on whether a plaintiff must have actively sought out a

video in order to have “requested or obtained” audio

17

visual materials. Compare, e.g., Sellers, 2023 WL

4850180, at *4 (no difference “between videos [the

plaintiff] clicked on and videos that auto-played when

he clicked on an article”), with Martin, 657 F. Supp. 3d

at 285 (person who has “merely reviewed an article on

the page or opened the page and done nothing more”

has not “requested or obtained specific video materials

or services”).

This judicial patchwork has created considerable

unpredictability as to how the statute will be

interpreted and applied in any given jurisdiction.

Companies thus face significant uncertainty about

whether and how the VPPA might be applied to their

online activities, creating litigation risk despite

companies’ diligent efforts to comply.

That

uncertainty, combined with the enormous potential

statutory damages in a mass action, means that

companies must seriously consider large settlements

as an alternative to expensive and uncertain

litigation—even if they reasonably believe they are not

subject to the statute or have not disclosed “personally

identifiable information.” Petitioner’s construction of

“consumer” would exacerbate those dynamics and

create even greater uncertainty for companies across

industries.

III.

Respondent’s

Construction,

Not

Petitioner’s, Accounts For Statutory Text,

Structure, And Congressional Intent.

Petitioner’s construction would produce absurd

results

in

the

modern

media

ecosystem,

demonstrating that petitioner’s reading of “consumer”

divorces the VPPA’s scope from the narrow problem

Congress sought to address. Congress enacted the

VPPA to protect against unauthorized disclosures of

individuals’ choices regarding the audio visual

18

materials they rent, purchase, or subscribe to. But

petitioner urges that the VPPA should be accorded a

far more sweeping scope, prohibiting disclosure of

personally identifiable information of anyone who

rents, buys, or subscribes to any goods or services

offered by a company and is later and entirely

separately exposed to any free video on any platform

maintained by that company. Petitioner’s reading

would thus transform the VPPA into a broad dataprivacy regime triggered by all manner of non-video

transactions. That stark disconnect between the

“principal evil motivating [the VPPA’s] passage” and

its proposed reach is strong evidence that petitioner’s

construction cannot be what Congress intended.

Yates, 574 U.S. at 536. Given the very specific problem

Congress enacted the VPPA to address, it is not

credible to think that “Congress responded with such

an unfocused and ‘grossly incommensurate patch.’”

Fischer, 603 U.S. at 498 (quoting United States v.

Fischer, 64 F.4th at 376 (Katsas, J., dissenting)).

The other traditional tools of statutory

construction—particularly analyzing other aspects of

the statutory context and history—confirm that

conclusion. Considered in light of the surrounding

statutory text, the “most plausible understanding,”

Fischer, 603 U.S. at 497-498, of the definition of

“consumer” is that it is limited to someone who rents,

purchases, or subscribes to “goods or services” that are

“prerecorded video cassette tapes or similar audio

visual materials,” 18 U.S.C. 2710(a)(1), (4).

A. The VPPA defines “consumer” as “any renter,

purchaser, or subscriber of goods or services from a

video tape service provider.” 18 U.S.C. 2710(a)(1)

(emphasis added). A “consumer” is thus someone who

engages in a transaction with a “video tape service

19

provider.” A “video tape service provider,” in turn, is

a person “engaged in the business” of “rental, sale, or

delivery of prerecorded video cassette tapes or similar

audio visual materials.”

18 U.S.C. 2710(a)(4)

(emphasis added). A “video tape service provider” is

thus defined by the commercial service it provides:

rental, sale, or delivery of videos or similar audio

visual materials. Given that the statute’s coverage

hinges on interrelated definitions regarding two sides

of a transaction—the “video tape service provider” who

provides the audio visual materials, and the

“consumer” who obtains the “goods or services” from

the “video tape service provider”— “consumer” is best

understood as one who obtains what the “video tape

service provider” is providing. That is, the “goods or

services” that a “consumer” obtains are best

understood as limited to the types of goods or services

that a video tape service provider is defined as

providing: videos and similar audio visual materials.

See Resp. Br. 19-24, 32-36.

Likewise, the VPPA protects against the disclosure

only of “personally identifiable information,” which is

defined as “information which identifies a person as

having requested or obtained specific video materials

or services from a video tape service provider.” 18

U.S.C. 2710(a)(3) (emphasis added). That definition

likewise indicates that Congress was focused on the

“rental, sale, or delivery” of “audio visual materials”—

not all goods or services.

In addition, the title of the statute—along with

each of the section headings—points toward a narrow

construction focused on individuals’ consumption of

audio visual materials. Dubin v. United States, 599

U.S. 110, 120-121 (2023) (“‘[T]he title of a statute and

the heading of a section’ are ‘tools available for the

20

resolution of a doubt’ about the meaning of a statute.”)

(quoting Almendarez-Torres v. United States, 523 U.S.

224, 234 (1998)). The title of the section of the U.S.

Code in which the statute is codified is “Wrongful

disclosure of video tape rental or sale records.” 18

U.S.C. 2710. And the heading of the liability section

is “Video tape rental and sale records.” 18 U.S.C.

2710(b). Congress made clear, then, that it was laserfocused on an individual’s privacy interest in the video

content they rent, watch, or subscribe to. See Yates,

574 U.S. at 539-540 (relying on section title as

confirming limitations on the scope of “tangible

object”).

B. In addition, petitioner’s construction creates

several anomalies in the VPPA’s operation.

First, petitioner’s definition of “consumer” severs

the logical connection between the VPPA’s coverage

and its central prohibition. Subject to statutory

exceptions,

the

VPPA

prohibits

disclosing

“information which identifies a person as having

requested or obtained specific video materials or

services from a video tape service provider.” 18

U.S.C. 2710(a)(3) (emphasis added). Under the court

of appeals’ construction, that prohibition is directly

related to the transaction on which the VPPA focuses:

a “consumer” rents, purchases, or subscribes to audio

visual materials provided by a video tape service

provider, and information about the specific video

requested or obtained in that transaction is protected.

In other words, the information protected from

disclosure is the subject of the transaction that makes

an individual a “consumer” and brings them within

the statute’s protection. The statute’s definitional

focus on the video provider-consumer transaction and

its prohibition on disclosing the specific video

21

requested or obtained in that transaction form a

coherent whole.

Petitioner’s construction disrupts that coherent

reading of the statute’s interrelated provisions. For

example, under petitioner’s interpretation, a person

becomes a “consumer” by obtaining any goods or

services from a video tape service provider, whether or

not related to audio visual materials, but what is

prohibited is the disclosure of the consumer’s separate

and unrelated encounter with a free video on some

website or platform maintained by the provider. That

construction breaks the logical chain between the

VPPA’s prohibition against disclosure and the

transaction that brings an individual within the

statute’s ambit.

As another example, the VPPA relies heavily on

consent as a means of permitting disclosures that are

desired by consumers.

The statute’s consent

provisions are narrow: they permit disclosure of

personally identifiable information if the consumer

expressly gives “informed, written consent” at the time

of disclosure or in advance, and the consumer must be

given a “clear and conspicuous” opportunity to

withdraw consent “on a case-by-case basis” or to

withdraw consent from “ongoing disclosures.” 18

U.S.C. 2710(b)(2)(B)(i)-(iii). Those provisions make

sense when a “consumer” is someone who engages in a

purposeful transaction to rent, purchase, or subscribe

to video content from a video tape service provider.

The company can identify that transaction as falling

within the statute’s ambit; the consumer can be asked

for consent at the time of that transaction; and the

consumer will understand what it is they are being

asked to consent to. It is far less clear how the

advance-consent and opt-out provisions could sensibly

22

operate under petitioner’s interpretation. It is hardly

administrable to ask consumers, at the time they

purchase groceries from Whole Foods, to provide

informed consent to the potential future disclosure of

unspecified information in connection with an

unspecified video on an unspecified website or

platform at an unspecified time.

Providing

meaningful opt-out options to the same vast universe

of customers creates further administrability

challenges.

It is highly unlikely that Congress

intended the statute’s consent provisions—which are

meant to temper the VPPA’s prohibition and

effectuate consumer preferences—to create such a

head-scratching morass.

C. The legislative history confirms what the text

and structure of the VPPA already make clear: the

word “consumer” encompasses only an individual who

rents, purchases, or subscribes to audio visual goods

and services. See Fischer, 603 U.S. at 491-492 (relying

in part on legislative history); Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 393 (2024) (same).

When Congress first enacted the VPPA in 1988, it

could not have been clearer that the VPPA focused,

narrowly and exclusively, on video transactions. The

Senate Report stated that the purpose of the VPPA is

“[t]o preserve personal privacy with respect to the

rental, purchase or delivery of video tapes or similar

audio visual materials.” S. Rep. No. 599, 100th Cong.,

2d Sess. 1 (1988) (emphasis added). The Report also

emphasized, in discussing the definition of “personally

identifiable

information,”

that

the

statute’s

protections were “intended to be transactionoriented,” protecting “information which identifies a

person as having requested or obtained specific video

materials or services from a video tape service

23

provider.” Id. at 11-12. Furthermore, “a department

store that sells video tapes would be required to extend

privacy protection to only those transactions involving

the purchase of video tapes and not other products.” Id.

at 12 (emphasis added).

Those statements, although addressed to the

definition of “personally identifiable information,”

reinforce the statute’s focus on transactions in which

an individual rents or buys audio visual materials

from a video tape service provider. Given that focus,

it is implausible that Congress would have defined the

“consumer[s]” protected by the statute based on their

engagement in transactions to obtain any goods or

services, regardless of any relation to audio visual

materials. Rather, a “consumer” is an individual who

engages in the transaction that is the focus of the

statute: renting, purchasing, or subscribing to audio

visual materials.

Subsequent amendment of the VPPA confirms that

Congress has continued to understand the statute as

tightly focused on video transactions.

In 2013,

Congress amended the VPPA to make it easier for

consumers to consent to having their information

shared with social media companies. S. Rep. No. 258,

112th Cong., 2d Sess. 2 (2012); Pub. L. No. 112-258,

126 Stat. 2414 (2013).

In so doing, Congress

acknowledged that technological developments had

revolutionized the ways in which video is delivered to

viewers. S. Rep. No. 258, 112th Cong., 2d Sess. 3. Yet

Congress left all of the VPPA’s definitional provisions

unchanged. And it did so against the backdrop of calls

from individual legislators and stakeholders to expand

the VPPA to regulate internet privacy more generally.

See The Video Privacy Protection Act: Protecting

Viewer Privacy in the 21st Century: Hearing Before the

24

Subcomm. on Priv., Tech., and the L. of the S. Comm.

On the Judiciary, 112th Cong., 2d Sess. 7 (2012)

(statement of Rep. Melvin L. Watt); id. at 8-9

(statement of Sen. Patrick J. Leahy); id. at 56

(statement of Mark Rotenberg); id. at 12 (statement of

Prof. William McGeveran). In other words, Congress

had an opportunity to fundamentally alter or expand

the VPPA to address new technologies, but it declined

to do so.

That statutory history confirms the wisdom of this

Court’s instruction that the scope of the problem that

Congress originally sought to address is relevant to

the statute’s construction. See Nickelodeon, 827 F.3d

at 288 (“We think Congress’s decision [in 2013] to

retain the 1988 definition of personally identifiable

information indicates that the Act serves different

purposes, and protects different constituencies, than

other, broader privacy laws.”). Given an opportunity

to expand the VPPA, Congress reaffirmed its focus on

video transactions—confirming what the statutory

text and context establish. Congress sought to protect

the privacy of a particular transaction; therefore, its

definition of the “consumer” involved in that

transaction is most naturally read to reflect the

statute’s focus on the provision of audio visual

materials.

CONCLUSION

For the foregoing reasons, the Court should affirm.

25

Respectfully submitted,

JONATHAN BLAVIN

STEPHANIE G. HERRERA

MUNGER, TOLLES & OLSON LLP

560 Mission Street

27th Floor

San Francisco, CA 94105

(415) 512-4000

Jonathan.Blavin@mto.com

GINGER D. ANDERS

Counsel of Record

CYNTHIA Y. LONG

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001-5369

(202) 220-1100

Ginger.Anders@mto.com

Counsel for Amici Curiae

JUNE 30, 2026