MICHAEL SALAZAR, individually and on behalf of all others similarly situated v. PARAMOUNT GLOBAL, dba 247Sports
No. 23-5748
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 3, 2025
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 25a0081p.06
Before: BATCHELDER, NALBANDIAN, and BLOOMEKATZ, Circuit Judges.
Argued: June 18, 2024
Decided and Filed: April 3, 2025
COUNSEL
ARGUED: Joshua I. Hammack, BAILEY & GLASSER, LLP, Washington, D.C., for Appellant. David L. Yohai, WEIL, GOTSHAL & MANGES LLP, New York, New York, for Appellee. ON BRIEF: Joshua I. Hammack, BAILEY & GLASSER, LLP, Washington, D.C., Brandon M. Wise, PEIFFER, WOLF, CARR, KANE, CONWAY & WISE, St. Louis, Missouri, for Appellant. David L. Yohai, WEIL, GOTSHAL & MANGES LLP, New York, New York, Robb S. Harvey, HOLLAND & KNIGHT LLP, Nashville, Tennessee, for Appellee. Adam G. Unikowsky, JENNER & BLOCK LLP, Washington, D.C., for Amicus Curiae.
NALBANDIAN, J., delivered the opinion of the court in which BATCHELDER, J., concurred. BLOOMEKATZ, J. (pp. 14–24), delivered a separate opinion dissenting from all but Part II of the opinion and dissenting from the judgment.
OPINION
NALBANDIAN, Circuit Judge. The Video Privacy Protection Act—as the name suggests—arose out of a desire to protect personal privacy in the records of the rental, purchase, or delivery of “audio
This case is about what “goods or services” a person must rent, purchase, or subscribe to in order to qualify as a “consumer” under the Act. Is “goods or services” limited to audio-visual content or does it extend to any and all products or services that a store could provide? Michael Salazar claims that his subscription to a 247Sports e-newsletter qualifies him as a “consumer.” But since he did not subscribe to “audio visual materials,” the district court held that he was not a “consumer” and dismissed the complaint. We agree and so AFFIRM.
I.
In September 2022, Michael Salazar brought this class action against Paramount Global, claiming a violation of the Video Privacy Protection Act (VPPA). Salazar claims he used 247Sports.com, a website owned by Paramount that covers college sports recruiting. Salazar alleged that he “began a digital subscription to 247Sports.com in 2022” and that he watched videos on 247Sports.com “while logged into his Facebook account.” R.1, Compl. p.4, PageID 4.
Salazar claims that, by then, Paramount had installed Facebook‘s tracking Pixel on 247Sports.com.1 The Pixel enabled Paramount to track and disclose to Facebook Salazar‘s 247Sports.com video viewing history, linked to his Facebook ID, without Salazar‘s consent.
Based on these allegations, Salazar asserted a single claim for relief under the VPPA, seeking actual or statutory liquidated damages. Paramount moved to dismiss the complaint for lack of subject-matter jurisdiction under
In July 2023, the district court issued an order denying Paramount‘s request to dismiss the complaint under
Yet the district court dismissed Salazar‘s complaint for failing to state a claim under the VPPA, concluding he was not a “consumer” under the Act. Salazar claimed that he was a “consumer” under the VPPA because he became a 247Sports.com subscriber (and thus a VPPA “subscriber“)2
So incorporating the VPPA‘s definition of “video tape service provider,”
Turning to the particulars of Salazar‘s complaint, the court noted that he failed to “allege that an individual can only access the video content from 247Sports.com through signing up for the newsletter.” Id. at 744. Or even that he “accessed audio visual content through the newsletter.” Id. Since there was no sign that the newsletter was “audio visual content,” the court found that Salazar “necessarily” was not a “subscriber” under the VPPA. Id. So the court dismissed Salazar‘s complaint for failing to state a claim. Salazar appealed.
II.
On appeal, Paramount abandons its challenge to Salazar‘s standing. But inherent to our jurisdiction is the limitation that “any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). And standing remains a constitutional minimum that “cannot be waived or forfeited.” Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019). So we have an independent obligation to confirm the plaintiff‘s standing before exercising our jurisdiction. See Kanuszewski v. Mich. Dep‘t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019).
We review standing de novo. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019). A plaintiff must demonstrate that they have standing “with the manner and degree of evidence required at the successive stages of the litigation.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). So what the plaintiff must show is calibrated to the stage of the case—and here we review the grant of a motion to dismiss. To establish Article III standing at this initial stage, “a plaintiff must plead an injury in fact attributable to the defendant‘s conduct and redressable by the court.” Tyler v. Hennepin County, 143 S. Ct. 1369, 1374 (2023).
in-fact requirement. TransUnion, LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021). Some intangible harms also constitute concrete injuries—“[c]hief among them are injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” Id. But this “close relationship” to a traditional harm does not require “an exact duplicate in American history or tradition.” Id. We are analyzing whether the asserted harm is sufficiently analogous to a traditional harm recognized by law—not whether the plaintiff has pleaded an element-by-element match to a historical tort. See Spokeo, Inc. v. Robins, 578 U.S. 330, 341-42 (2016); Ward v. NPAS, Inc., 63 F.4th 576, 581 (6th Cir. 2023) (noting that the inquiry focuses on whether the harm alleged is closely related “to the kind of harm that the common law sought to protect“).
So we address whether Salazar‘s alleged injury—the disclosure of his 247Sports.com private video-viewing history to Facebook—bears a “close relationship” to intangible harms “traditionally recognized as providing a basis for lawsuits in American courts.” TransUnion, 141 S. Ct. at 2204. To be sure, no common-law tort specifically protects against the disclosure of a person‘s video-viewing history. But the Supreme Court has recognized that “both the common law and the literal understandings of privacy encompass the individual‘s control of information concerning his or her person.” U.S. Dep‘t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). Indeed, TransUnion expressly states that at least a couple of invasions of privacy cause sufficiently concrete injuries—such as “disclosure of private information” and “intrusion upon seclusion.”4 141 S. Ct. at 2204. Salazar‘s asserted injury resembles the harms addressed by these torts because he alleges that Paramount disclosed his private information to Facebook without his knowledge or consent. So Salazar can show that he suffered a concrete injury by reference to well-established privacy harms.5 See Ward, 63 F.4th at 579–81.
And because Salazar‘s complaint alleges that Paramount installed the tracking Pixel on 247Sports.com, the claimed harm is also traceable to Paramount‘s conduct. Finally, an award of damages
So the district court correctly found that Salazar has standing.6 Next, we turn to whether it correctly dismissed Salazar‘s suit for failure to state a claim.
III.
On appeal, Salazar claims that the district court erred in granting Paramount‘s motion to dismiss under
When a district court grants a motion to dismiss under
overcome a
A.
To see if Salazar made out a claim under the VPPA, we first consider the Act‘s structure. The VPPA, first enacted in 1988, creates civil liability for any “video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.”
So to state a claim under the VPPA, Salazar must allege that (1) Paramount is a regulated entity (a “video tape service provider“), (2) he is a protected party (Paramount‘s “consumer“), and (3) Paramount engaged in prohibited conduct (knowingly disclosing Salazar‘s “personally identifiable information” to a third party). The district court dismissed Salazar‘s claim solely because he failed to plausibly allege the second element: that he is a protected “consumer.” So we turn to that issue next.
B.
To answer whether Salazar plausibly pleaded that he was a “consumer,” we ask whether he was a “subscriber of goods or services from a video tape service provider.”
elsewhere makes clear that this was a newsletter subscription: “To register for 247Sports.com, users sign up for an online newsletter.” Id. at p.6, PageID 6.
Salazar claims that the “broad statutory phrase ‘goods or services’ plainly includes Paramount‘s online newsletter.” Appellant Br. at 24 (quoting
But Salazar errs by reading the terms “goods or services” “in isolation,” yielding a definition of “consumer” based “solely on the broadest imaginable definitions of its component words.” Dubin v. United States, 143 S. Ct. 1557, 1566 (2023) (quoting Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018)). Learned jurists have long cautioned against making this very mistake. See Helvering v. Gregory, 69 F.2d 809, 810–11 (2d Cir. 1934) (L. Hand, J.) (“[T]he meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.“); FCC v. AT&T, Inc., 562 U.S. 397, 406 (2011) (“[T]wo words together may assume a more particular meaning than those words in isolation.“).
So it remains “a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989)). And “[t]his bedrock principle has especial force for ‘common words’ like [goods or services] because they are ‘inordinately sensitive to context.‘” See United States v. Hill, 963 F.3d 528, 533 (6th Cir. 2020) (quoting Smith v. United States, 508 U.S. 223, 245 (1993) (Scalia, J., dissenting)). The statutory phrase “goods or services” “cannot be construed in a vacuum” to wall it off from the meaning imputed by the rest of the statute‘s text. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (quoting Davis, 489 U.S. at 809).
Indeed, other interpretive canons—such as noscitur a sociis or the associated-words canon—reflect the “common sense intuition that Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it.” Fischer v. United States, 144 S. Ct. 2176, 2184 (2024). The associated-words canon instructs interpreters to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” United States v. Yates, 574 U.S. 528, 543–44 (2015) (internal quotation marks omitted); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 197 (2012) (“Although most associated-words cases involve listings—usually a parallel series of nouns and noun phrases, or verbs and verb phrases—a listing is not prerequisite. An ‘association’ is all that is required.“) So despite its overly technical name, the word-association canon embodies a simple fact of everyday communication: a general word can be limited by its connection to other words in the same text.
Here, there is an association between the terms “goods or services” and “audio visual materials.” So viewing the provision as a whole reveals “a more targeted reading” than the one Salazar proposes. See Dubin, 143 S. Ct. at 1156. Even though—standing alone—the expression “goods or services” is not limited, its association with surrounding words cabins its meaning. The full definition of “consumer” in the statute does not encompass consumers of all “goods or services” imaginable, but only those “from a video tape service provider.”
“rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”
Some might resist this conclusion, arguing that it adds an unexpressed limitation to the text. Not so. Our approach is not just consonant with textualist interpretation, it is required by it. The pure definitional meaning of words in isolation shouldn‘t be confused with the plain meaning of the text. See Hill, 963 F.3d at 536–37. Instead, the plain meaning of any word “is informed by its surrounding context” and the other words in the statute. Diaz v. United States, 144 S. Ct. 1727, 1735 (2024). This “[c]ontext also includes common sense” such that “[c]ase reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short.” Biden v. Nebraska, 143 S. Ct. 2355, 2379 (2023) (Barrett, J., concurring). And “[c]ontext from the time of [the VPPA‘s] enactment . . . confirms that the statute does not reach” all possible goods and services. See Thompson v. United States, No. 23-1095, 2025 WL 876266, at *5 (U.S. Mar. 21, 2025).
As discussed, the terms “goods or services” are linked to those goods and services provided by a company when it is acting as a “video tape service provider“—namely “audio visual materials.” So “in construing [the VPPA], we must also take into account the broader statutory scheme,” which focuses on privacy protections for records of transactions related to audio-visual goods and services. See City & County of San Francisco v. EPA, 145 S. Ct. 704, 717 (2025). Adopting this best reading of the statute is not adding a new limitation where one
did not exist. Instead, we merely recognize a limitation that was included in the statute‘s plain meaning at the time it was signed into law.9
In doing so, we break with the Second and Seventh Circuits’ approach to this issue. Considering a virtually indistinguishable complaint filed by the same plaintiff, the Second Circuit held that the statutory term “‘consumer’ should be understood to encompass a renter, purchaser, or subscriber
Respectfully, we disagree. It‘s far from the most natural reading to see the term “personally identifiable information” as limiting because the statute defines it with the term “includes“—unlike the other definitions which use the word “means.”
Yet the Second Circuit sees this definition of “personally identifiable information” as the floodgate preventing VPPA liability for “the general store owner who . . . disclos[es] particular customers’ bread-buying habits.” Salazar v. NBA, 118 F.4th at 549. Indeed, that court viewed
this definition as making clear that the terms “goods or services” should be construed broadly to prevent redundancy in the statute. Id. But if that is true, it seems odd that Congress would put such a pivotal limitation in a nonexclusive definition. The Second Circuit acknowledges that fact—though only in a footnote. Id. at 549 n.10. And since the definition is illustrative rather than exhaustive, it‘s not clear how interpreting “goods or services” to be audio-visual materials would render that definition‘s reference to videos “superfluous.” Id. at 548. The better reading remains that “goods or services” relates to audio-visual materials and the definition of “personally identifiable information” merely provides an example of what information a “video tape service provider” can‘t disclose to others.10
Turning to how this applies to Salazar‘s case, we ask whether the 247Sports.com newsletter is a “video cassette tape or similar audio visual material.” Salazar claims it is because it “contained links to videos, directed subscribers to video content, and otherwise enticed or encouraged them to watch Paramount‘s videos.” Appellant Br. at 36. But Salazar‘s complaint failed to allege that the newsletter did any of these or that he had accessed videos through the newsletter. If
Standing alone, Salazar‘s allegation that he subscribed to 247Sports.com‘s newsletter was not enough to render him a “consumer” under the VPPA—making the district court‘s dismissal of his suit proper.
IV.
But that is not the end of the case. Salazar claims that, even if dismissal were proper, the district court erred “as a matter of law” by refusing to grant him “leave to amend his complaint to add allegations to establish that the online newsletters were ‘audio-visual materials.‘” Appellant Br. at 40.
When a district court dismisses a complaint with prejudice, we review for abuse of discretion. United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003). Generally, district courts “should freely give leave” to amend a complaint “when justice so requires.”
Salazar filed neither a motion to amend nor a proposed amended complaint. Instead, he requested leave to amend his complaint only in a single cursory footnote at the end of his response to Paramount‘s motion to dismiss: “To the extent the Court grants Defendant‘s motion, Plaintiff respectfully requests that he be permitted to amend his complaint to address any issues the Court raises in its Order.” R.24, Opp‘n to Mot. to Dismiss, p.21 n.17, PageID 146. This “cursory request” did not “explain how a second amended complaint would resolve the problems in the first.” Crosby, 921 F.3d at 628. So the district court did not abuse its discretion in dismissing Salazar‘s complaint with prejudice.
V.
For these reasons, we AFFIRM.
CONCURRENCE / DISSENT / DISSENT FROM JUDGMENT
BLOOMEKATZ, Circuit Judge, concurring in part, dissenting in part, and dissenting from the judgment. The majority opinion holds that Michael Salazar is not a “consumer” under the Video Privacy Protection Act (VPPA) because he did not subscribe to “‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials‘” from 247Sports.com. Maj. Op. at 10 (emphasis added) (quoting
ANALYSIS
Michael Salazar signed up for a newsletter from Paramount Global, doing business as 247Sports.com, a website that provides news coverage of college sports. To sign up, Salazar provided his email address and his IP address, the latter of which reveals information about his physical location. After he signed up, Paramount sent him a daily newsletter with links to articles (many of which contained videos), photographs, and other content. Salazar alleges that, through the Facebook Pixel that Paramount installed on the 247Sports.com website, Paramount collected data about his identity and the videos he watched and then disclosed that information to Facebook without his consent.
Salazar sued Paramount under the VPPA. Congress passed the VPPA, also known as the “Bork bill,” to increase video privacy after a newspaper published a profile about then-Supreme Court nominee Judge Robert Bork based on almost 150 movies he and his family had rented from a video store. S. Rep. No. 100-599, at 5 (1988). The VPPA provides a cause of action against a “video tape service provider” that “knowingly discloses” a “consumer[‘s]” “personally
identifiable information,” which includes information about the “specific video materials or services” the consumer has “requested or obtained.”
In my view, he is.
I. Plain Text Reading of “Consumer”
The plain text is all that is necessary to resolve this case.
To determine whether Salazar is a “consumer” within the meaning of the VPPA, we start with the plain text of the statute. Twitter, Inc. v. Taamneh, 598 U.S. 471, 484 (2023). Unless terms are specifically defined, we look to their ordinary meaning. Keen v. Helson, 930 F.3d 799, 802 (6th Cir. 2019). This includes how the terms are used in their surrounding context. See United States v. Hill, 963 F.3d 528, 533–34 (6th Cir. 2020). When the “text is clear, ‘this first step of the interpretive inquiry is our last.‘” United States v. Stewart, 73 F.4th 423, 425 (6th Cir. 2023) (quoting Rotkiske v. Klemm, 589 U.S. 8, 13 (2019)).
The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”
Some of the words in the definition of “consumer” are undefined, so I afford them their plain meaning. See Keen, 930 F.3d at 802. Relevant here, Salazar contends that he is a consumer because he is a “subscriber” of “goods or services” from Paramount. Congress did not define either of those statutory terms. In determining the meaning of those terms, “contemporaneous dictionaries are the best place to start.” Id. To “subscribe” is “to put one‘s name down as a purchaser of shares, a periodical, newspaper, or book, etc.” Subscribe, 17 Oxford English Dictionary 54 (2d ed. 1989). As several of our sister circuits have held, the “purchase[]” need not be monetary—providing personal information suffices. Salazar v. Nat‘l Basketball Ass‘n, 118 F.4th 533, 552 (2d Cir. 2024); Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256–57 (11th Cir. 2015); Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482,
487-89 (1st Cir. 2016); Gardner v. Me-TV Nat‘l Ltd. P‘Ship, -- F.4th --, 2025 WL 942835, at *2–*3 (7th Cir. 2025). So, a “subscriber” generally refers to a person who, by providing some sort of consideration, opts in advance to receive “goods or services” of a continuing or periodic nature from the provider. See Ellis, 803 F.3d at 1255–56; Yershov, 820 F.3d at 487 (collecting dictionary definitions). In turn, “goods” ordinarily refers to “movable property,” and “services” refers to “[t]he section of the economy that supplies needs of the consumer but produces no tangible goods.” Good, 6 Oxford English Dictionary 673 (2d ed. 1989); Service, 15 Oxford English Dictionary 37 (2d ed. 1989).
Under the statute, those “goods or services” must be “from a video tape service provider.”
Based on this language, a “video tape service provider” need not be exclusively, or even primarily, engaged in the “rental, sale, or delivery of prerecorded cassette tapes or similar audio visual materials.” See id.; NBA, 118 F.4th at 548. Congress included “any person engaged in” the business of renting, selling, or delivering audio visual materials akin to video cassette tapes, capturing department stores, supermarkets, or other companies that are “engaged” in many commercial pursuits, including the “rental, sale, or delivery” of video tapes and the like. See S. Rep. No. 100-599, at 12 (explaining how the VPPA would apply to a department store); NBA, 118 F.4th at 548. Indeed, while Judge Bork rented videos from a local video store, the disclosure of his viewing history would not have been any less invasive had he rented from a supermarket that had a video rental department. (I remember when some did.) The VPPA, by its plain text, counts both stores as “video tape service providers” and would have prohibited either from disclosing his rental history.
So how does this definition of “consumer” match up to Salazar‘s allegations? Salazar is a “subscriber” under the VPPA. He gave his personal information—his email address and IP
address—in exchange for receiving a periodic (daily) newsletter from 247Sports.com via email.2 The newsletter is a “good[] or service[] from [Paramount].” Neither Paramount nor the majority disputes that the phrase “goods or services,” in common parlance, includes newsletters. See Maj. Op. at 9-10 (discussing the “relevant ‘goods or services‘” covered by the VPPA); Appellee Br. at 27 (arguing that Congress did not intend for the VPPA “to cover all the goods and services offered by a video tape service provider“); see also Op. & Order, R. 33, PageID 281 n.19 (declining to address whether the newsletter is a “good[] or service[],” instead holding only that Salazar is not a “subscriber of goods or services
The majority reaches a different conclusion—but only by rewriting the plain language of the VPPA.
II. The majority‘s atextual reading of “goods or services from a video tape service provider.”
In holding that Salazar is not a “consumer,” the majority focuses on the fact that the VPPA‘s definition requires a plaintiff to be a consumer of not just any “goods or services,” but “goods or services from a video tape service provider.” Maj. Op at 9–10. It holds that the “most natural reading” of this full phrase is that “a person is a ‘consumer’ only when he subscribes to
‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.‘” Id. at 10 (emphasis added) (quoting
The majority‘s defense of this edit does not persuade me. At the heart of the majority‘s interpretation is the principle that courts must read statutory language in context. The majority appears to acknowledge that the plain meaning of “goods or services” includes the online newsletter, but it stresses that we cannot read “goods or services” in isolation. See Maj. Op. at 8-9. I agree, of course. It is a well-established and common-sense rule that courts can‘t isolate words in a statute and give them a meaning that would not make sense in context, as “words together may assume a more particular meaning than those words in isolation.” Id. at 8 (quoting FCC v. AT&T, Inc., 562 U.S. 397, 406 (2011)). Take a different example from the same VPPA provision—the word “subscriber.” In isolation, the word “subscriber” could mean a person who subscribes to the tenets of a religion or other beliefs, where there is no need for registration, an exchange, or a relationship between two people or entities. Subscriber, 17 Oxford English Dictionary 54 (2d ed. 1989). But the statute says “subscriber of goods or services,”
Following the basic rule that courts look at words in context, the majority concludes: “The full definition of ‘consumer’ does not encompass all ‘goods or services’ imaginable, but only those ‘from a video tape service provider.‘” Maj. Op. at 9 (quoting
Superman action figure or a Bugs Bunny puzzle“—from a video tape service provider like Paramount will do. Id. Thus, Salazar satisfies the definition of “consumer.”
Not so, the majority says, because context limits the statutory language even further. It holds that the “goods or services” must not only be “from a video tape service provider,” as the statute dictates—they must be “audio visual” in nature. Maj. Op. at 9–11. That‘s because, the majority reasons, by specifying that the “goods or services” must be “from a video tape service provider,” the provision “pinpoints the relevant ‘goods or services‘” as “video cassette tapes or similar audio visual materials.” Id. at 9–10 (quoting
If anything, the statutory context statute reinforces Salazar‘s plain-language interpretation. “[V]iewing the provision as a whole,” id. at 9, reveals that Congress knew how to limit “goods or services” to those of an audiovisual nature when it wanted to, see Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457–58 (2022) (citing the “meaningful-variation canon“). For example, the statute defines “personally identifiable information” as information “identif[ying] a person as having requested or obtained specific video materials or services from a video tape service provider.”
phrase “goods or services” in that definition. See Saxon, 596 U.S. at 458 (respecting the distinction Congress made in using “more open-ended formulations” in some places, and a “narrower” phrase in another (citation omitted)); Jama v. Immigr. & Customs Enf‘t, 543 U.S. 335, 341 (2005) (“We do not lightly
The absence of the “specific video” modifier is particularly telling given the other similarities between the definitions of “personally identifiable information” and “consumer.” Recall that the majority focuses on the fact that the definition of “consumer,”
The majority‘s reliance on noscitur a sociis doesn‘t help either. Maj. Op. at 9–11. As the majority explains, noscitur a sociis tells us that a term‘s meaning is affected by the words with which it is “associated.” Id. at 9. The canon “instructs interpreters to ‘avoid ascribing to one
word a meaning so broad that it is inconsistent with its accompanying words.‘” Id. (quoting Yates v. United States, 574 U.S. 528, 543–44 (2015)). For instance, the Supreme Court recently applied this canon in Fischer v. United States—a case the majority relies on—to clarify the scope of
Does reading the definition of “goods or services” according to its plain language make the provision “inconsistent with its accompanying words,” “render meaningless” other parts of the statute, or depart from the statute‘s purpose, thereby triggering this limiting construction? I don‘t think so. The majority doesn‘t even contend that it does or identify any such examples. That‘s telling.
Paramount tries to identify an inconsistency between the plain-text interpretation and the VPPA‘s purpose to justify its limiting construction, but it fails. It argues that the phrase “goods or services” in the definition of “consumer” cannot extend to “the whole economy writ large” because the purpose of the statute was narrow—protecting privacy over audiovisual materials only. Appellee Br. at 22. As the legislative history demonstrates, Congress enacted the VPPA
“to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials.” Act of Nov. 5, 1988, Pub. L. 100-618, 102 Stat. 3195. But giving the phrase “goods or services” a broader meaning than “specific video materials or services” fits comfortably with that purpose. It brings consumers within the statute‘s reach if they have engaged in any transaction regarding “goods or services from a video tape service provider,” because any transaction could give a provider the data it needs to connect a person with their video consumption activity. And that information about video consumption is then protected from disclosure.
True, under this interpretation “a consumer who buys a hammer“—or any other nonvideo material—“then watches free videos on the vendor‘s website” enjoys the privacy protections of the VPPA. NBA, 118 F.4th at 550 (using the defendant‘s proposed hypothetical). But, as the Second Circuit held, “considering the privacy protective goals of the VPPA with respect to individuals’ video viewing information,” that‘s not “anomalous.” Id. Instead, “allowing disclosure of the consumer‘s video viewing information [in this scenario] would be out of sync with the statute‘s goals.” Id.
Nor is applying the definition of “consumer” to purchasers of nonvideo goods “nonsensical,” as the district court reasoned. Op. & Order, R. 33, PageID 285. Consider the same hypothetical. When purchasing a hammer on the “video tape service provider‘s” website, an individual provides personal information. And the video tape service provider can link that personal information with the free videos the individual later watches on its website. If a video tape service provider can link a person‘s personal information to their video preferences, Congress would have wanted to prohibit disclosure, regardless of whether the information came from the precise transaction involving the video material or got “stitched together” with other non-video transactions. Reply Br. at 17. It makes no difference for achieving the statute‘s privacy goals. Accordingly, the VPPA‘s purpose does not compel a narrower interpretation of “goods or services” in the definition of “consumer“; it confirms the plain-language interpretation I would adopt. See Fischer, 603 U.S. at 491–92 (considering what “prompted the legislation in the first place” to confirm its reading of the text).
First, Congress acknowledged the ever-progressing advancement of information technology when it initially passed the VPPA and intended the VPPA‘s protections to continue with those advances. See S. Rep. No. 100-599, at 6–7. Rather than designing a statute for a bygone era, Congress recognized that the “computer age” would bring “technological innovations” with “the ability to be more intrusive than ever before.” See id. at 6. And while it may not have anticipated all those innovations precisely—like the growth of targeted advertising on which amicus focuses—the VPPA was meant to protect consumers’ privacy in the face of those advances, not become obsolete. See id. at 6–8. Based on the legislative history, then, the amicus is wrong in saying that Congress did not mean for the VPPA to apply in the internet era.
Second, in 2013, Congress specifically amended the VPPA, recognizing that the internet had “revolutionized” how Americans watch video content and “share information.” S. Rep. No. 112-258, at 2 (2012); Video Privacy Protection Act Amendments Act of 2012, sec. 2,
already ask for various forms of consent. Hana Habib, et al., “Okay, Whatever“: An Evaluation of Cookie Consent Interfaces 1, CHI ‘22: Conf. on Hum. Factors in Computing Sys. (2022), https://perma.cc/DNZ9-X67N. Therefore, I can‘t say that “the plain language of the statute would lead to patently absurd consequences that Congress could not possibly have intended.” Pub. Citizen v. U.S. Dep‘t of Just., 491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (cleaned up).
Given the VPPA‘s “text, structure, and purpose,” I—like the Second and Seventh Circuits—do not read the statute‘s definition of “consumer” to be limited to subscribers of “audiovisual ‘goods or services.‘” NBA, 118 F.4th at 537; see also Gardner, 2025 WL 942835, at *2. I therefore respectfully part ways with the majority opinion in interpreting what constitutes
CONCLUSION
Because Salazar has stated a claim for relief under the plain text of the VPPA, I respectfully dissent.
Notes
The district court did not address whether Salazar should be granted leave to amend his complaint to further allege that the newsletter is audiovisual material—perhaps because Salazar only mentioned amending in a footnote. And the majority concludes that Salazar‘s failure to move more substantively for leave to amend precludes his asking for it now. Fair enough. Doubtless, that will be the next case.
More importantly, finding “a close historical or common-law analogue” for the modern injury or harm does not require an exact match for each element of the common-law tort. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021); Ward v. NPAS, Inc., 63 F.4th 576, 580-81 (6th Cir. 2023); see also Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462–63 (7th Cir. 2020) (Barrett, J.) (“[W]hile the common law offers guidance, it does not stake out the limits of Congress‘s power to identify harms deserving a remedy.“); Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 693 (5th Cir. 2021) (“[O]ur inquiry is focused on the types of harms protected at common law, not the precise point at which those harms become actionable.” (quoting Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019))); Lupia v. Medicredit, Inc., 8 F.4th 1184, 1192 (10th Cir. 2021) (“Though a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law.“) As the Supreme Court pointed out, there is “an important difference” between the elements of the cause of action and the concrete harm. TransUnion, 141 S. Ct. at 2205. So “disclosure of private information” remains one of “those traditional harms” that “is sufficiently concrete to qualify as an injury in fact,” even when it fails to meet all of the elements of the common law tort of public disclosure of private facts. Id. at 2204.
S. Rep. No. 100-599, at 12.[S]imply because a business is engaged in the sale or rental of video materials or services does not mean that all of its products or services are within the scope of the bill. For example, a department store that sells video tapes would be required to extend privacy protection to only those transactions involving the purchase of video tapes and not other products.