Back To Bork: The Video Privacy Protection Act’s Struggle to Define “Consumer” In The Digital Age

by Mofe Koya, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

From August 4th to August 10th, 2025, viewers in the United States watched a staggering 11.3 billion minutes of content across various streaming platforms including Netflix, Hulu, Paramount, Disney, and Prime Video.¹ Millions of Americans are binging shows, engaging with companion apps, and encountering incidental streaming features on websites every day—often without realizing how much of their viewing data is being collected. This explosion of digital tracking raises a question the Video Privacy Protection Act of 1988 was never designed to answer: who counts as a “consumer,” in an era where nearly every company incorporates videos into its platforms? With courts split on the issue, the reach of the Video Privacy Protection Act remains unclear.

This Article will explore the history of the Video Privacy Protection Act, its original goals, and how it has been applied inconsistently in the modern age of media. Part II will discuss the recent circuit split regarding the definition of “consumer” and will examine the implications of each interpretation for businesses and users of streaming and video-enabled platforms. Part III will argue why Supreme Court intervention is necessary to provide clarity for the Act in the digital age and make the case for which view the Court should adopt. Finally, Part IV will summarize this analysis and emphasize the need for a uniform interpretation that best aligns with Congress’ original intent.

II. Background

The Video Privacy Protection Act (“VPPA” or “the Act”) of 1998 was passed by Congress in response to the Bork Tapes, an article written by journalist, Michael Dolan.² In September 1987, during Judge Robert Bork’s Supreme Court confirmation hearings, Dolan obtained and published Bork’s video rental history in the Washington City Paper without authorization.³ While Bork’s rental history contained nothing salacious—revealing only that he “enjoyed whodunits and Brit films, costume drama and otherwise”—the article nonetheless had a significant impact on privacy protections for viewing history in the United States.⁴ This Part will discuss the history of the Act and how its inconsistent application has led to the circuit split at issue.

A. The History of the Act

Dolan’s article was published in the last week of September in 1987 and sparked bipartisan condemnation.⁵ By October, Republican representative Al McCandless, introduced a bill to Congress that would make it illegal for video rental stores to release such personal information.⁶ While McCandless’s bill did not make it out of committee, a similar bill sponsored by Democratic senator Patrick Leahy, was introduced to Congress in May of 1988.⁷ President Ronald Reagan signed the bill into law on November 5, 1998.⁸ Leahy’s bill became the Video Privacy Protection Act and provides that, “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person” for up to $2,500.00.⁹

The VPPA remained largely undiscussed throughout the 1990s as the video rental industry began to decline.¹⁰ However, in the early 2000s as video streaming via the internet began to rise in popularity, a series of lawsuits were filed against online video streaming services including Hulu and Netflix.¹¹ In 2013, as a result of the lobbying efforts of several video streaming service providers, Congress amended the VPPA so that “users could opt-in and allow their video content viewing to be shared with third-party social networks.”¹²

Despite the amendment, Fall of 2022 saw a surge in class action lawsuits invoking the VPPA.¹³ Websites such as, the NFL, the NBA, CNN, NPR, and ESPN that hosted any video formatting were now under attack.¹⁴ Claimants argued that Facebook’s Meta Pixel, which tracks site visits and sends the data to Meta Platforms Inc., violates the VPPA.¹⁵ While it typically excludes names or addresses, the Meta Pixel generates unique ID numbers linked to users’ Meta accounts, allowing targeted advertising.¹⁶

Against this backdrop, two key cases have emerged, splitting the circuits on who qualifies as a “consumer” under the VPPA and how broadly the Act should apply.¹⁷ In Gardner v. Me-TV Nat’l Ltd. P’ship, Gardner argued he had subscribed to MeTV (a classic television channel with streaming offerings) and was therefore a “consumer” as it was defined in the VPPA.¹⁸ The issue before the circuit was whether merely holding a subscription—without renting, purchasing, or directly watching videos—qualified him as a “consumer” under the VPPA.¹⁹ The broad view adopted by the Seventh Circuit held that any interaction with a platform that hosts video as sufficient to create consumer status.²⁰

However, just days later, in Salazar v. Paramount Global, the Sixth Circuit adopted a more narrow view.²¹ Salazar argued that he became a subscriber protected by the VPPA when he subscribed to 247Sports.com (a college sports recruiting site) owned by Paramount.²² The Sixth Circuit disagreed, holding that Salazar’s subscription to a newsletter “was not enough to render him a ‘consumer’”.²³ As a result, two circuits addressing cases with similar facts reached opposite conclusions, creating the current circuit split.²⁴ Until the Supreme Court weighs in, the VPPA will continue to be applied inconsistently across circuits, leaving businesses and consumers uncertain about its scope.²⁵

B. The Circuit Split: Who Is a Consumer?

The current circuit split centers on how courts interpret the definition of “consumer” under the VPPA, and, by extension, who falls within its protections and liabilities.²⁶ As discussed above, the narrow and broad interpretations of the word have resulted in conflicting rulings across circuits, leaving streaming platforms and viewers uncertain about the Act’s scope and reach.²⁷

1. The Broad View

The split began with Gardner v. Me-TV Nat’l Ltd. P’ship, decided by the Seventh Circuit on March 28, 2025.²⁸ In the complaint, Gardner argued that MeTV, a website offering classic TV programming from the 1930s through 1990s, violated the VPPA by embedding Meta Pixel in its website.²⁹ The Pixel shares the viewing history of users logged into Facebook on the same browser, allowing Facebook to sell ads targeted to video preferences.³⁰ Although MeTV is a free website, users can “sign up” by providing their email addresses and zip codes.³¹ Gardner, who claimed he became a subscriber to MeTV when he signed up for the site by providing his email, alleged that neither Facebook nor MeTV obtained consent to share this information via Meta Pixel.³²

In its opinion, the Seventh Circuit relied heavily on the definition of “consumer” in §2710(a)(1) of the Act which is as follows, “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”³³ Because Gardner claimed he was a “subscriber,” the court focused its analysis on that point, reasoning that “as a matter of common usage, a ‘subscriber’ gives value in exchange for goods or services”—which Gardner arguably did by providing his email and zip code to the website.³⁴ In exchange for a user’s sign-up information, MeTV allows users to select TV shows to follow and receive reminders about when they air.³⁵ MeTV argued that, even if its website users qualified as subscribers, they had signed up for an information service (TV schedules and newsletters) rather than a video service.³⁶ MeTV subsequently claimed that the newsletter subscription fell outside the VPPA’s definition of a “consumer”.³⁷ However, the Seventh Circuit rejected this argument, returning to the VPPA’s statutory definition of “consumer.” The circuit noted that Congress did not limit the term to a “subscriber of … video services.”³⁸ Rather, it defined a “consumer” as a “subscriber of … services from a video tape service provider,” which could include, but is not limited to, actual video services.³⁹ The Seventh Circuit ultimately reversed the lower court’s decision holding that, “when a person does furnish valuable data in exchange for benefits, that person becomes a ‘consumer’ as long as the entity on the other side of the transaction is a ‘video tape service provider.’⁴⁰

2. The Narrow View

Less than a week later, on April 3, 2025, the Sixth Circuit Court of Appeals established the narrow interpretation of the VPPA’s “consumer” definition.⁴¹ In Salazar v. Paramount Global, Salazar claimed that he “subscribed to a digital 247Sports.com plan that provides Video Media content to the digital subscriber’s desktop, tablet, and mobile device,” by providing his email and IP address.⁴² Like MeTV, 247Sports.com used Meta Pixel which enabled the site to track and disclose to Facebook its user’s video viewing history without their consent.⁴³ Similar to Gardner, Salazar claimed that he was a “consumer” under the VPPA because he became a subscriber of 247Sports.com when he signed up for the site’s newsletter.⁴⁴

However, unlike in Gardner, the Sixth Circuit chose not to “[read] the terms ‘goods or services’ ‘in isolation,’ which yielded a definition of ‘consumer’ based ‘solely on the broadest imaginable definition of its component words.’”⁴⁵ Rather, the circuit explained that its job was not to scrutinize a statute word by word but instead recognize that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”⁴⁶ With respect to §2710(a)(1) of the Act, the circuit explained that there is an association between the terms “goods or services” and “audio visual materials.”⁴⁷ The circuit reasoned that this meant that the true definition of “consumer” as defined in the Act does not encompass all purchasers of goods or services, as the Seventh Circuit held, but only those who purchase “goods or services from a video service provider.”⁴⁸ Further, that the Act applies only to the relevant “‘goods or services’ … involved in the ‘rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials,’” as stated in §2710(a)(4).⁴⁹ Taken together, these definitions indicate that a person qualifies as a “consumer” under the VPPA only when they “[subscribe] to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”⁵⁰ Accordingly, the circuit affirmed the district court’s dismissal, holding that Salazar did not qualify as a “consumer” under the VPPA.⁵¹

III. Discussion

These competing definitions of “consumer” under the VPPA will continue to result in inconsistent decisions across the country. Part III of this Article will examine the implications of both the broad and narrow interpretations. Further, this Article argues that the Supreme Court should adopt the narrow interpretation because that interpretation best aligns with Congress’s intent while providing clarity and predictability for courts, businesses, and consumers alike.

A. The Dilemma

Critics of the broad view warn that it could apply to any company that hosts even incidental video content on its website.⁵² A news site, cooking blog, sports stats page, or online store with product demo videos could all be treated as video service providers liable under the Act. This overbreadth blurs the line between video-centric businesses and those that simply include video as a secondary feature, potentially chilling innovation, imposing costly compliance requirements, and flooding the court system with claims. Still, the broad definition offers advantages: it provides stronger privacy protections by covering anyone interacting with video content, ensures users retain control over their viewing data, and acts as a deterrent against careless data sharing, ultimately encouraging stricter privacy practices.⁵³

Conversely, proponents of the narrow interpretation argue that limiting “consumer” to those who actually rent or purchase audiovisual content keeps the line clear and prevents what the D.C. Circuit called “haphazard and unreasoned line-drawing.”⁵⁴ By restricting liability to true video service providers, courts will avoid the flood of lawsuits against incidental video hosts and will reduce compliance costs for businesses whose core function has nothing to do with video. Yet, this approach comes at a cost: narrowing the statute’s reach undermines its privacy goals in the streaming era, leaving many users unprotected when their data is shared outside traditional rental or sales contexts.⁵⁵

The fact that each interpretation of “consumer” carries persuasive reasoning and significant practical consequences highlights the tension between privacy protection and statutory clarity, emphasizing the urgent need for Supreme Court intervention.

B. Next Steps: Adopting the Narrow Interpretation

The continued inconsistent application of the VPPA can only have negative consequences on consumer privacy, business compliance, and the integrity of federal law. This Article argues that the Supreme Court should grant certiorari and adopt the narrow interpretation of “consumer,” as it most closely reflects Congress’s original intent in enacting the VPPA.

While both interpretations of the statute have merit, only the narrow interpretation grounds itself in the history of the Act and the privacy concerns that arose during the Bork hearings. When it decided Church of the Holy Trinity v. United States (1892) the Supreme Court stated that, “a thing may be within the letter of the statute and yet not within the statute, because [it is] not within its spirit, nor within the intention of its makers.”⁵⁶ In dicta, the Court observed Congress’s intent should guide interpretation, even if the text itself may have a broad interpretation. Just as the Court examined congressional intent and legislative history to define the term “laborer” in Church of the Holy Trinity, today’s Supreme Court should similarly consider the VPPA’s legislative history to definitively resolve the meaning of “consumer.”

Senate Report No. 100-599, the legislative history accompanying the VPPA, explicitly states 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.”⁵⁷ Senator Leahy went on to emphasize that technological advances have created “a new, more subtle and pervasive form of surveillance,” noting that transactional information could now be easily recorded, stored, and instantly assembled by libraries, cable, and video companies.⁵⁸ He warned that while innovations like computers and video services have revolutionized daily life, it remains critical to “protect time honored values…particularly our right to privacy.”⁵⁹ Accordingly, S. 2361—the bill that became the VPPA—was designed to “give meaning to, and thus enhance, the concept of privacy for individuals in their daily lives” by prohibiting the unauthorized disclosure of personal information held by video tape providers.⁶⁰

With this context, it seems clear that the VPPA was enacted to protect a very specific aspect of American privacy: the personal viewing habits of individuals interacting with video service providers, ensuring that these intimate choices could not be disclosed without consent as technology made it easier for such data to be tracked and stored. This focus on protecting individual privacy, rather than regulating incidental data collection, supports the notion that the narrow interpretation of “consumer” best reflects Congress’s intent. Broader privacy concerns in the digital age are better addressed through targeted legislation or regulatory frameworks specifically designed for online tracking and data sharing, rather than stretching a statute drafted for video rentals beyond its intended scope.

IV. Conclusion

Today, the VPPA is applied inconsistently because courts have drifted from the statute’s original purpose. Congress enacted the law in response to the unlawful disclosure of Judge Robert Bork’s video rental history, recognizing that the seemingly mundane details of one’s viewing habits implicate deeply personal privacy interests. The Act was designed not as a sweeping data-privacy regime, but as a targeted safeguard to ensure that individuals could rent or purchase video materials without fear that their choices would be exposed. This intent—preserving the confidentiality of personal viewing information—was rooted in broader constitutional values of autonomy and dignity. In today’s digital age, it is crucial to interpret the VPPA in light of this original design: protecting the privacy of video consumers while avoiding overreach that penalizes companies for incidental videos outside the bounds of Congress’s concern. Resolving the current circuit split is therefore essential not only to establish uniformity but also to enforce the statute in a manner faithful to its history. Only the Supreme Court can provide this clarity and restore the balance between technological innovation and the specific privacy protections Congress envisioned.

Cover Photo by Glenn Carstens-Peters on Unsplash

Mofetoluwa Koya

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