The U.S. Supreme Court is now considering one of the most significant digital privacy cases for online businesses in years—and a growing coalition of business organizations is urging the Court to avoid expanding a decades-old law in ways that could expose countless websites to new class action lawsuits.

Earlier this year, the Ecommerce Innovation Alliance (EIA) reported that the Supreme Court agreed to hear Salazar v. Paramount Global, a case that could determine how the Video Privacy Protection Act (VPPA) applies in today’s digital economy. At the time, the Court had only agreed to hear the case. Today, the litigation has entered its next major phase.

After Paramount filed its merits brief in June, an unusually broad coalition of business, retail, technology, and media organizations submitted briefs of their own, warning that an expansive interpretation of the VPPA could significantly increase litigation risk for businesses that use common website technologies.

For ecommerce businesses, the case has become much more than a dispute involving a media company. It could shape how businesses across the internet use embedded video, analytics platforms, and digital marketing tools for years to come.

From VHS Rentals to the Modern Internet

Congress enacted the Video Privacy Protection Act in 1988 after a newspaper published the video rental history of Supreme Court nominee Robert Bork. The law was designed to prevent companies from improperly disclosing consumers’ video viewing records.

Nearly forty years later, plaintiffs have increasingly invoked the VPPA in lawsuits against companies using common third-party technologies such as the Meta Pixel, Google Analytics, and other advertising or analytics tools. These lawsuits generally allege that websites unlawfully disclose information about visitors’ activity to third parties without obtaining proper consent.

As the EIA has noted in previous coverage, this reflects a broader trend in privacy litigation: plaintiffs are increasingly relying on statutes written decades before the internet to challenge routine digital business practices.

The Supreme Court Is Now Considering the Merits

The Supreme Court granted review in January to resolve an important disagreement among federal courts over who qualifies as a “consumer” under the VPPA.

At the center of the case is whether someone who simply signs up for a digital newsletter or creates a basic online account should receive the same legal protections that Congress originally intended for subscribers to traditional video rental or video delivery services.

In June, Paramount filed its merits brief urging the Court to affirm the lower court’s decision.

The company argues that 247Sports—a sports news website owned by Paramount—is not the type of “video tape service provider” Congress contemplated when it enacted the VPPA. Paramount also contends that subscribing to a free email newsletter should not transform every website visitor into a protected video subscriber under federal law.

According to the company’s brief, adopting the plaintiff’s interpretation would dramatically expand the VPPA beyond its original purpose and expose businesses throughout the digital economy to lawsuits over ordinary website functionality.

Privacy advocates disagree. Organizations such as the Electronic Privacy Information Center (EPIC) argue that Congress intentionally drafted the statute broadly and that its protections should evolve alongside modern methods of delivering video content online.

The Supreme Court will ultimately decide which interpretation prevails.

A Broad Coalition Says the Stakes Extend Far Beyond Paramount

A diverse array of organizations have filed amicus briefs asking the Justices to reject an expansive reading of the VPPA.  Among those filing amicus briefs supporting Paramount are:

• U.S. Chamber of Commerce
• National Retail Federation
• Retail Litigation Center
• Motion Picture Association
• News/Media Alliance
• Meta Platforms
• Chamber of Progress
• Computer & Communications Industry Association (CCIA)
• Software & Information Industry Association (SIIA)
• Entertainment Software Association
• America’s Newspapers

Although these organizations represent different industries, they share a common concern: that extending the VPPA beyond its historical scope could create sweeping liability for businesses that use ordinary digital technologies.  Their briefs argue that companies across the internet routinely incorporate video into websites while relying on analytics and advertising platforms to measure engagement, improve user experiences, and evaluate marketing performance. Expanding the VPPA without clear statutory limits, they contend, would encourage additional class action litigation targeting businesses that never considered themselves video service providers.

Why Ecommerce Businesses Should Care

Businesses often use analytics, advertising, and customer measurement tools to understand how visitors engage with that content and improve the overall shopping experience.  If the Supreme Court adopts an expansive interpretation of the VPPA, companies using these commonplace technologies could face increased litigation risk—even if video is only one small component of their website.  That possibility mirrors the challenges ecommerce businesses have already experienced under other legacy privacy statutes.

Another Chapter in a Larger Privacy Litigation Trend

The EIA has consistently highlighted how outdated privacy laws are increasingly being applied to modern ecommerce technologies.

Our recent reporting on California’s Invasion of Privacy Act (CIPA) and Senate Bill 690 has documented how businesses have faced a surge of lawsuits over routine website tracking tools. We have also supported efforts such as the Stop CIPA Shakedowns coalition, which seeks to preserve meaningful consumer privacy protections while discouraging abusive litigation.

The VPPA case represents another example of courts being asked to determine how decades-old statutes should apply to technologies that lawmakers could not have envisioned when those laws were enacted.  

The issue is not whether consumer privacy deserves protection—it unquestionably does.  Rather, the question is whether longstanding statutes should be interpreted so broadly that ordinary ecommerce practices become the basis for costly class action litigation, even when businesses are using standard technologies that power much of today’s online economy.

What Comes Next

The Supreme Court has not yet heard oral argument or issued a decision. The case is currently in the merits stage, with the parties’ principal briefs filed and numerous amici weighing in. Oral arguments are expected during the Court’s upcoming Term, with a decision likely to follow several months later.  For ecommerce businesses, the outcome could provide important guidance on how the VPPA applies to modern websites and whether businesses using embedded videos alongside common analytics and advertising technologies face expanded legal exposure.

Join the EIA today to help strengthen and shape policies that affect all ecommerce businesses. Together, we can continue to create the future of ecommerce. Subscribe to EIA email updates to stay informed on key developments and their impact on your business. 

The Ecommerce Innovation Alliance (EIA) provides members with analysis of litigation and regulatory developments affecting online commerce and digital marketing. This post is for informational purposes only and does not constitute legal advice.