Republican-nominated justices are poised to read an atextual limit into the Video Privacy Protection Act, shielding corporations from liability and stripping consumers of privacy rights
Source: Madiba K. Dennie. "The Supreme Court wants to give you fewer privacy rights than a famous judge.." October 17, 2026. slate.com
The Gist
A law passed after Robert Bork's movie rentals were leaked bans video providers from sharing what customers watch without consent. The author argues that the plain wording covers a man whose viewing history was handed to Facebook, yet the conservative justices seem ready to carve out an exception that protects companies. She says this reflects politics, not the law's text.
Conclusion
The Supreme Court's Republican-nominated justices are signaling that they will narrow the Video Privacy Protection Act beyond what its text supports, so as to insulate corporations from liability. This would leave Americans with fewer privacy rights than Congress granted, and it reflects the justices' ideological commitments rather than faithful statutory interpretation.
Premises
- The VPPA's text bars videotape service providers from knowingly disclosing consumers' personally identifiable information without written consent. It defines providers broadly to include those delivering 'prerecorded video cassette tapes or similar audio visual materials' and defines consumers to include any 'subscriber of goods or services.'
- Salazar subscribed to 247Sports, requested and received video from Paramount, and Paramount disclosed his viewing history to Facebook without his consent. This is the exact kind of injury the statute was meant to prevent.
- At oral argument, Thomas, Alito, Kavanaugh, and Barrett pressed arguments for limiting the statute: that goods or services must be video-related, that the law is tied to 1980s technology like Blockbuster, that the Court is 'textualist but not literalist,' and that broad coverage would expose every business with video on its website.
- These arguments rely on limits not found in the statutory text, and they fail to engage meaningfully with the text and context. Their practical effect would be to shield corporations that profit from intruding on consumer privacy.
- Technology and commerce have changed since 1988, but the law's commitment to protecting video consumers' privacy has not. What has changed is the ideological makeup of the Court.
Assumptions
- The plain text of the VPPA, read literally, clearly covers Salazar's situation.
- Reading the statute to cover modern streaming and online video is consistent with Congress's purpose of protecting video-viewing privacy.
- Questions at oral argument reliably indicate how justices will ultimately rule.
- The justices' skepticism stems from ideological commitments, not good-faith interpretive concerns such as avoiding overbroad liability.
- The partisan affiliation of the nominating president is a meaningful proxy for a justice's ideological or pro-business leanings.
- Concerns about overbroad liability are not a legitimate textualist reason to narrow a statute's scope.