Supreme Court Takes On Facebook Tracking

Most people never think about what happens when they press play on a video at a website they signed up for. A case at the Supreme Court this week asks whether the law protects them if they did.

The Supreme Court's October calendar lists Salazar v. Paramount Global, No. 25-459, for argument on Wednesday, October 14. The question is narrow on paper and large in practice: who counts as a "consumer" under the Video Privacy Protection Act, a federal law that restricts how video providers may disclose a customer's viewing history?

The facts of the case

According to SCOTUSblog and legal filings summarized by law firms and trade press, Michael Salazar subscribed to a free newsletter at 247Sports.com and watched videos on the site while logged into Facebook. He alleges that the site, through Meta's tracking tool known as the Meta Pixel, sent his Facebook ID and his video-viewing history to Facebook without his consent. Paramount, the company at the center of the case, is the defendant.

Both lower courts held that Salazar was not a "consumer" under the statute because he subscribed only to a newsletter, not to audiovisual goods or services. A divided panel of the Sixth Circuit read the term to cover only people who subscribe to goods or services "in the nature of" audiovisual material. Federal appeals courts are split on the point. In a parallel case involving the NBA, the Second Circuit concluded that Salazar was a consumer within the meaning of the law, reaching the opposite result.

The legal fight turns on text. Salazar argues that the statute's reference to "goods or services" covers everything a video tape service provider offers, so a newsletter subscription counts. Paramount argues that he is not a "consumer" at all. The Supreme Court agreed to resolve the split.

One caution. Our sourcing as of publication covers the case's background, the briefs and the schedule. We did not have reporting on how the justices questioned the lawyers at argument, so this column does not predict an outcome.

The other side

Paramount's position has real force. A statute written for video rentals should be read by what Congress wrote, not by what the internet later became. Reading "consumer" to include anyone who signs up for any product from a company that also offers video would stretch a narrow privacy law well past its original target. Companies that run websites, publishers among them, have a legitimate interest in knowing where their legal exposure ends, and a broad reading could make that line harder to find.

There is also a fair textual point. The Sixth Circuit's reading, tied to subscriptions "in the nature of" audiovisual material, tries to keep the law anchored to its subject.

The take

I have two instincts here, and they pull in different directions. Let me sort them out.

First, the conservative case for privacy is stronger than my side usually admits. We say, rightly, that families should control what their children see and who collects their information. A person who signs in to Facebook, visits a site and watches a video is not agreeing to hand a profile of his viewing to a tracking company. The right to be left alone is an old American principle. If a company wants to disclose what you watch, the least it can do is tell you, and ask.

Second, I do not want judges rewriting statutes. The proper answer to "this law doesn't fit the pixel era" is for Congress to update the law, not for courts to stretch words past their natural meaning. Whichever reading the Court adopts, the lesson will be the same. The statute is written around "video tape service providers," and the courts are now being asked how that language applies to embedded trackers. When the text and the technology drift apart, the fix belongs with legislators.

So here is what I would like to see. Read the text honestly, whatever it yields. If the Court says Salazar is not a consumer, Congress should write protections that cover the way people actually use the web, with clear definitions so that innovation and legitimate analytics are not buried in lawsuits. If the Court says he is, companies should treat consent as a real requirement and not a checkbox.

Either way, the principle is the same. Your family's viewing habits are not a commodity. Washington has had plenty of time to say so clearly. It is past time.