Robert Bork never made it to the Supreme Court. President Ronald Reagan nominated him to a vacant seat in 1987, but the Democratic-controlled Senate voted against the prominent conservative legal scholar and judge over concerns about his views and jurisprudence. Next month, however, a strange piece of his legacy will go before the justices instead.
Salazar v. Paramount Global, which the court will hear on October 14, is a potentially significant case on digital privacy. If the justices side with the plaintiff, it could have dramatic consequences for the internet-advertising industry and its reliance on intrusive (and highly lucrative) targeting practices. What began with a Supreme Court nominee’s movie-rental history in the 1980s could reshape how Americans’ online habits are bought and sold by digital brokers in the 2020s.
Michael Salazar is a college-sports fan who obtained a subscription from Paramount to use a sports-video streaming service that it offered. He received the subscription, he told the courts, by signing up for the service’s email newsletter. Like other users, he viewed multiple videos on the site on his computer while subscribed to it. That computer also happened to be logged into Facebook at the time.
“Via tracking software Paramount installed on its website, Paramount disclosed Mr. Salazar’s personally identifiable information—including his Facebook ID and which videos he watched—to Facebook,” he explained in his brief for the justices. “Facebook and Paramount used this information to create targeted advertising, hoping to increase their revenues.”
This kind of surreptitious ad-oriented surveillance is an all-too-familiar experience for modern internet users. Salazar also alleges that it is illegal under federal law. He filed a lawsuit against Paramount that accused it of violating the Video Privacy Protection Act, which was enacted by Congress in 1988.
The VPPA allows “consumers” to sue “video tape service providers” for disclosing their “personally identifiable information” to third parties without their written consent. If the plaintiff prevails at trial, a federal court may award the “consumer” up to $2,500 in damages for each proven privacy breach, as well as other costs and fees, from the offending provider.
The law is a window into a bygone world on multiple levels. For nearly 200 years, Supreme Court nominations were typically low-key affairs, drawing public interest but not typically the lobbying and criticism that now follows every vacancy. Bork’s nomination in 1987 changed things. He was a key figure in the conservative legal movement in its early infancy in the 1960s and 1970s, championing originalism as the banner of a counterrevolution to the Warren court’s landmark liberal rulings.
Democrats and liberal interest groups lobbied hard to block his nomination. Bork made it easy for them. Bork had freely expressed his opinions on a variety of legal questions throughout his career, including on the Civil Rights Act of 1964, which he opposed, and then-recent Supreme Court rulings on contraception and abortion, which he condemned. The high court had grounded those rulings in a constitutional right to privacy that could be inferred from multiple constitutional amendments; Bork did not believe that it existed.
Modern Supreme Court nominations are a product of the Bork saga. Presidents choose them for their limited paper trails and their ability to avoid senators’ questions at their confirmation hearing. Bork’s paper trail took an unusual turn in 1987 after Michael Dolan, a reporter at the Washington City Paper in D.C., obtained a copy of his rental history from Potomac Video, a movie rental store.
The list of movies itself is fairly mundane. (You can now find it on Letterboxd.) It included films like Risky Business, Sunset Boulevard, Citizen Kane, and The Man With the Golden Gun—nothing controversial or salacious, just the popular middlebrow fare one would expect from a federal appellate judge in the 1980s. Bork’s viewing habits provided no real insight into his jurisprudence that could not already be gleaned from his ample public writings and comments.
Obtaining the list at all was its own statement. Dolan just walked into the now-defunct Potomac Video store in D.C. and asked the manager for a copy of Bork’s rental history, which the manager photocopied for him. The reporter later recounted a sense of relief that it didn’t include anything like pornography, which would become an issue in a Supreme Court nomination three years later. Dolan later recounted a conversation he had with his editor at the time.
Next day, while visiting Jack Shafer, I asked if an article on Judge Bork’s video rentals would interest him.
“You can’t do that, “ he said. “That’s illegal.”
“No, it isn’t,” I said. “Judge Bork said so.”
Okay, Shafer said. Write the story.
Congress, however, was less interested in the content of Bork’s rental history than it was in a reporter’s ability to obtain it. “After all, if a judge’s viewing habits were newsworthy, so were those of members of Congress,” The New York Times observed the following year. Lawmakers began crafting a bill that would make companies liable for disclosing video rental records without permission. Reagan signed it into law in 1988.
Brick-and-mortal video rental stores have now gone the way of Roe v. Wade. (Bork died in 2012, and Potomac Video closed in 2014.) But the VPPA endures. Congress even updated it in 2013 to address concerns by Netflix and other tech companies about their potential liability if users automatically shared their viewing habits on social media websites like Facebook or MySpace. Instead of requiring permission each time a user’s history is shared, a company only needs to obtain their permission once.
Paramount never obtained that permission, Salazar claimed, and so it is liable under the law. “Unauthorized disclosures of video-watching histories, meanwhile, offer ‘a window into our loves, likes, and dislikes,’” he told the justices, quoting from the Senate report that accompanied the VPPA’s passage. “Members of Congress believed watching films is an ‘intimate process’ that ‘fuel[s] the growth of individual thought’ and ‘should be protected from the disruptive intrusion of a roving eye.’”
As one might expect, Paramount disagrees with Salazar’s interpretation of the law. The company argued in the lower courts that the VPPA did not extend to him because Salazar was not a “consumer” under the act’s terms. The law defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” The company argued that the consumer in question must rent, purchase, or subscribe to “video cassette tapes or similar audio visual material” to qualify, not other “goods and services.” Since the videos he viewed were available for free, Paramount argued, they did not qualify.
Salazar argued that this interpretation defied the VPPA as written since its text does not impose such a limitation upon any claims. But the Sixth Circuit Court of Appeals disagreed. “Our approach is not just consonant with textualist interpretation, it is required by it,” Judge John Nalbandian wrote for a three-judge panel last year. “The pure definitional meaning of words in isolation shouldn’t be confused with the plain meaning of the text.”
Salazar urged the justices to overturn that ruling, arguing that the lower courts had improperly “replaced what Congress wrote in that definition”—of the word “consumer”—“with limiting language it did not include,” undermining the law’s breadth and purpose. “The language Congress writes into a statute is the law,” he argued in his brief. “Language it does not include is not the law. Those straightforward principles resolve this case.”
If Salazar were to prevail, it would have significant consequences for online advertising. A ubiquitous feature of the modern internet is companies using one’s browsing habits and history to build targeted advertising profiles, which are freely sold and traded among third parties. In a brief that unsuccessfully urged the justices to not take up the case, Paramount derisively described the VPPA as a “Blockbuster-era law” and complained that Salazar “seeks to transmogrify it into a prohibition against targeted advertising on the Internet.”
Other friend-of-the-court briefs dispute the scope of the potential fallout. The U.S. Chamber of Commerce also warned that adopting Salazar’s straightforward reading of the law would turn the VPPA into a “federal instrument for regulating—and in practical effect abolishing—the targeted-advertising model that underwrites much of the modern internet.” The Electronic Privacy Information Center, on the other hand, told the justices that Paramount (and other online-video companies) is “not under any obligation to use these [targeted] systems, and it can adopt more privacy protective techniques to integrate with its advertising and other vendors.”
The Supreme Court agreed to take up the case without a clear circuit split, suggesting a heightened level of interest from the justices. That does not necessarily bode well for Salazar. In its pre-argument brief, Paramount complained that VPPA claims like this one are increasingly common in the lower courts, blaming unscrupulous class-action law firms—a disfavored target in some justices’ eyes—and urging the justices to deliver a final word on the matter.
On the other hand, the Supreme Court has punched above its weight on digital-privacy issues in other contexts over the last two decades under Chief Justice John Roberts. The justices have given heightened Fourth Amendment protections to cell phones and required police to provide more particularized information to judges when obtaining geofencing warrants. This does not mean they have embraced an overarching right to privacy that Bork once rejected, of course, but they have ably applied old search-and-seizure principles to new technologies.
A ruling in Salazar’s favor would apply a law that Congress drafted to protect Americans’ private viewing habits to an even more intrusive system than existed in 1988 or 2013. If privacy was good enough for Robert Bork, maybe it’s good enough for the rest of us, as well.