Seventh, Ninth Court Rulings Tighten Reach of Federal Video Privacy Protection Act

The Video Privacy Protection Act of 1988 (VPPA), 18 U.S.C. §2710, was aimed at preventing the “wrongful disclosure” of personal information about “consumers” — also labeled in the statute as “subscribers,” though the VPPA didn’t define the word — who rented or bought video tape products such as movies and TV shows. The VPPA prohibited disclosure by the seemingly outdated term “a video tape service provider” of “personally identifiable information concerning any consumer of such provider” without the consumer’s consent. “Video tape service provider” was defined in §2710(a)(4) as “any person, engaged in the business … of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”
In Osheske v. Silver Cinemas Acquisition Co., 23-3882, Ninth Circuit federal appeals court Judge M. Margaret McKeown noted in a March 27, 2025, ruling on the VPPA: “The original impetus for the VPPA arose during President Ronald Reagan’s contested [and rebuked] nomination of Judge Robert Bork to the Supreme Court, when the Washington City Paper published a profile of Judge Bork based on a leaked list of 146 films that he and his family had rented from a local video store.”
And in a March 28 VPPA ruling by the Seventh Circuit, appeals court Judge Frank Easterbrook noted the statute “was the result of bipartisan revulsion against the ease with which reporters discovered what Bork and his family had rented on video tapes. The reporters did not turn up any dirt (Bork and his family watched Hitchcock mysteries, John Hughes comedies, British costume dramas, and spy thrillers) but the ready availability of rental information caused consternation in Congress, some members of which may have had other viewing predilections.” Gardner v. Me-TV National Limited Partnership, 24-1290.
The VPPA may be nearly four-decades old and video-rental stores largely a thing of the past, but the rise of online content, streaming services and ancillary activities has brought with it frequent litigation based on the VPPA. The key challenge in these litigations is how to interpret the VPPA’s 1980s terms in light of today’s digital advances.
The Gardner v. Me-TV decision centered on how to define the §2710 terms “video tape service provider” and “subscriber.” MeTV is a free, ad-based website that mostly features classic TV shows from years ago. Consumers can register with MeTV via their email addresses and zip codes if they want individualized programming capabilities.
MeTV also links to its registered users’ Facebook accounts. Two MeTV viewers who registered with the website filed suit against the online service under the VPPA. Seventh Circuit Judge Easterbrook explained: “Plaintiffs allege that MeTV embeds in the videos a ‘Meta pixel’ (named after the business that operates Facebook) that facilitates this linking. According to the complaint this lets Facebook know what the person is watching so it too can sell ads targeted to video preferences, and it improves MeTV’s ability to promote its business on Facebook.”
The U.S. District Court for the Northern District of Illinois granted MeTV’s motion to dismiss the Gardner lawsuit by finding the plaintiffs weren’t VPPA “consumers.”
Reversing and remanding, the three-judge Seventh Circuit panel first found that MeTV qualified as a §2710 “video tape service provider.” According to the court, “If plaintiffs had signed up and never watched a video, but had purchased a Flintstones sweatshirt or a Scooby Doo coffee mug or a Superman action figure or a Bugs Bunny puzzle (MeTV’s web site offers all four), then they would have purchased ‘goods’ from a ‘video tape service provider’. Nothing in the Act says that the goods or services must be video tapes or streams.”
Then, agreeing with the Second Circuit’s decision in Salazar v. National Basketball Association, 118 F.4^th 533 (2d Cir. 2024), the Seventh Circuit ruled: “The Act is aimed principally at information about videos; public disclosure of … rentals is what happened to Judge Bork. And what happened to Judge Bork has some overlap with what plaintiffs allege; after all, the Meta pixel encodes the name of each video that they stream from the website. But as far as the statute is concerned, this connection lies in the definition of ‘video tape service provider’ rather than the definition of ‘consumer’. Any purchase or subscription from a ‘video tape service provider’ satisfies the definition of ‘consumer’, even if the thing purchased is clothing or the thing subscribed to is a newsletter.”
By contrast, in Osheske v. Silver Cinemas, the Ninth Circuit declined to extend the reach of the VPPA. Ninth Circuit Judge McKeown observed: “Nearly forty years [after the VPPA took effect], we consider for the first time whether selling tickets to and providing an in-theater movie experience constitutes a business subject to the VPPA.”
In this litigation, Facebook user Paul Osheske had filed a class action in California federal district court against movie exhibitor Landmark Theaters (i.e., Silver Cinemas), which also operates a website that, according to Judge McKeown, “installed on its website a Facebook ‘pixel,’ or ‘web beacon,’ programmed to contact Facebook and transmit user information whenever someone purchased a ticket while logged into their Facebook account. After Osheske visited Landmark’s website and bought a movie ticket, Landmark shared the name of the film, the location of the showing, and his unique Facebook identification number with Facebook via the pixel. Osheske never consented to this disclosure ….”
Landmark argued, however, that it wasn’t a “video tape service provider” within the meaning of the VPPA and the district court granted Landmark’s motion to dismiss.
Affirming, the Ninth Circuit wrote: “As Landmark’s counsel laid out, “theater patrons do not obtain the control over audiovisual materials available to prerecorded video viewers. Someone late to a theater showing cannot rewind the movie, someone needing to use the facilities or desiring a soft drink cannot pause it, and someone falling asleep cannot stop it and start it again later.’ Simply put, there has not been a transaction [by Landmark Theaters] involving an exchange of video materials that qualifies as a “rental, sale, or delivery.’”