WashU Expert: Supreme Court case tests limits of online privacy

The Supreme Court heard oral arguments Oct. 14 in a dispute over whether the 1988 Video Privacy Protection Act (VPPA) protects consumers who subscribe to any of a company’s products or only those who subscribe to its audiovisual ones.

The case could have significant implications for surveillance-based advertising and the future of internet privacy, said Neil Richards, a privacy law expert at Washington University in St. Louis.

Richards, the Koch Distinguished Professor of Law and co-director of the Cordell Institute for Policy in Medicine and Law, said that the VPPA should protect people who watch online videos, including free content.

The law was enacted to prevent the disclosure of video-rental records, but its general purpose remains relevant today, when technology companies track viewing habits to target ads and influence behavior, he said.

“The basic idea behind the law is that we are entitled to intellectual privacy when we watch videos, and we should not be recorded, tracked or influenced based upon what we watch,” Richards said.

A law built to protect intellectual privacy

Congress passed the VPPA in 1988 after a reporter obtained the video-rental records of then-Supreme Court nominee Robert Bork and published a list of the movies he watched. The reporter suggested he could do the same with other elected officials, prompting Congress to act.

“That case came from the VHS era of rental stores, but Congress intentionally drafted the law in a far-sighted way to protect the activity of private video-watching, regardless of the technologies or formats used to watch,” Richards said.

“It’s one of the most important privacy statutes Congress has ever passed,” he said. It can protect people from companies seeking to monetize their attention and undermine their ability to think freely, he said.

A ruling with consequences for online advertising

The Supreme Court case could shape whether companies can share information about users’ video-viewing habits with advertising and data networks.

Richards said the internet has shifted from contextual advertising, which matches ads to the content a person is viewing, toward surveillance-based advertising that relies on tracking individual behavior.

“The Internet has become the most surveilled, most tracked, most privacy-invasive creation in human history,” he said.

The case comes out of a class-action lawsuit brought against Paramount Global in 2022 by Michael Salazar, a subscriber to a 247Sports.com newsletter.

The outcome of the case will depend a lot not just on who wins, but on the rationale and implications of the Supreme Court’s decision, Richards said.

“If Salazar wins, we’ll get better privacy protections online, at least for the privacy of video content, but not for reading or listening to articles, podcasts, audiobooks and music,” he said. “If Paramount wins, surveillance-based business models will gain another victory.”

Stronger privacy protections still needed

Either way, he said, we will need better privacy laws targeted at 21st-century surveillance harms and practices.

“Regulating surveillance-based ads, whether by banning them, by giving people meaningful choice to opt out entirely, or through interpretations of existing laws like the VPPA would be the single best thing we could do for the privacy protections of the average internet user,” he said.

“To be clear, though, a win for Salazar would be a much-needed win for internet privacy and a much-needed pushback to the greed of surveillance tech companies,” he said.

Richards supports alternatives to surveillance-based advertising, including contextual ads and targeted advertising that users explicitly choose to receive.

“If ads are still necessary to make the commercial models of the internet work, we can always use opt-in targeted ads or contextual ads, the same mechanisms that brought us the internet in the first place, before the greed of surveillance tech took over and made our online experiences much worse, much more addictive, much more harmful to our mental health and much less private,” he said.