Salazar v. Paramount Global
Oral argument transcript · No. 25-459 · October Term 2026
Our full case page and synced audio · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Joshua I. Hammack, Washington, D.C., for the petitioner
- Paul D. Clement, Alexandria, Virginia, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 25-459, Salazar versus Paramount Global. Mr. Hammack. ORAL ARGUMENT OF JOSHUA I. HAMMACK ON BEHALF OF THE PETITIONER
Joshua I. Hammack: Mr. Chief Justice, and may it please the Court: Outraged by the disclosure of one person's video-watching history, Congress enacted the Video Privacy Protection Act. In Section (b)(1), the Act provides for civil liability when a video tape service provider knowingly discloses personally identifiable information concerning any consumer of such provider. The Act defines three of those terms. At bottom, a video tape service provider is the kind of entity that will owe obligations under the law. Personally identifiable information is the kind of information the statute protects in (b)(1)(D) and (E). And a consumer is the kind of person whose information is protected 1 in Section (b)(1). The Act permits disclosures with a consumer's consent, and in 2013, Congress made that consent easier to obtain, online, in advance, for up to two years. Here, Paramount Global systematically discloses personally identifiable information to Facebook without obtaining consent. These are not one-off disclosures. They happen constantly, instantly, every time someone, including a consumer, watches a video on the website. Paramount has shaped its business around these disclosures. All it needed to avoid liability was its consumers' consent, something it and Facebook agree was easy to get. Paramount just didn't get it. So it asks this Court to narrow the law by imposing an audiovisual limitation on the phrase "goods or services" in the definition of "consumer." But Congress put audiovisual limitations where it wanted them, in the definitions of both "video tape service provider" and "personally identifiable information," not in the definition of "consumer." That choice is dispositive. 1 I welcome the Court's questions.
Justice Thomas: But wouldn't it be natural to think that goods or services from a video tape service provider would be video-related services?
Joshua I. Hammack: Not at all, Justice Thomas, because, here, we have material variations at every stage of the statute, at every stage of the definitions section. So we start with a "video tape service provider." That definition refers to prerecorded video cassette tapes or similar audiovisual materials. That's one subject matter. In (a)(3)'s definition of "personally identifiable information," we have video -- video materials or services. That's a second subject matter that's different in scope from (a)(4)'s definition of a provider. And then, in (a)(1), the "consumer" definition, we have goods or services. And all three subject matters are coming from a video tape service provider. That they're different tells us that a provider can do all three things. It can engage in transactions concerning all three.
Chief Justice Roberts: Well, our former colleague, Justice Breyer, confronted with questions like this, you know, his favorite hypothetical in that area anyway was a sign in a park that says, you know, no pets in the park, and the question was, did that mean that the person carrying his pet snail in his pocket was subject to prosecution. I mean, don't we have to look at the general purpose that's involved here before determining that the statute reaches as far as you would have it?
Joshua I. Hammack: I think we are completely in line with the statutory purpose. And we have no objection, of course, to the Court looking to that purpose. And I don't mean "purpose" in the sense of scouring the legislative history, but look at the text of Section (b)(1), which specifically prohibits the disclosure of personally identifiable information concerning any consumer. We have two different limitations within that section. "Personally identifiable information" is one limitation. "Concerning any consumer" is a second. And the reading, I 1 think the appropriate reading, of those two things together, which exist in (b)(1) but not in other sections of the VPPA, which protect against -- for example, in subsection (D), we've got the admissibility provision. Personally identifiable information won't be admissible unless it's obtained in compliance with the VPPA. In subsection (E), we've got personally identifiable information, an affirmative requirement that providers destroy personally identifiable information after a period of time. In neither location is that personally identifiable information linked to a consumer. It's only in (b)(1) that that link happens, so we know that (b)(1) is protecting less personally identifiable information from disclosure, not more.
Justice Barrett: Mr. Hammack, is it your position -- I'm thinking about the limits. Is it your position that any company that has a short up on its website, be it a commercial or whatever, is a video service provider?
Joshua I. Hammack: That's not our position, 1 Justice Barrett. And I would say the -- the definition of "video tape service provider" in (a)(4), which, by the way, isn't at issue here, is very clear that you have to be engaged in the business of renting, selling, or delivering those audiovisual materials. So it's not everyone who happens to deliver them. It's not everyone who provides a video once. You have to be engaged in that business. And that's another real limitation on liability in (b)(1).
Justice Barrett: Is your theory that 247Sports was in engaged in that business or that Paramount was?
Joshua I. Hammack: Well, in this case, Paramount Global is doing business as --
Justice Barrett: As. Okay.
Joshua I. Hammack: -- 247Sports. So I think both is the answer. But, yes, our position is absolutely that Paramount Global is a video tape service provider.
Justice Barrett: So you -- Mr. Clement used in his brief some examples, of Chick-fil-A, et cetera. Would you take the position that if Chick-fil-A had some videos on its website, it's a video tape service 1 provider?
Joshua I. Hammack: We would not take that position. And it should come as no surprise that the court that confronted that particular problem found that Chick-fil-A is not a video tape service provider. That's how the motion to dismiss was granted in that case. We have no quarrel with that holding. We don't find it particularly surprising. But that's nothing like what Paramount Global does here.
Justice Sotomayor: If Congress's interest was the protection of privacy of a person's video tape watching, why would the disclosure of personally identifiable information be limited only to consumers and not to those who watch videos for free?
Joshua I. Hammack: Well, I guess I want to be very clear because the person who watches videos for free can still be protected by (b)(1)'s disclosure prohibition as long as he's a consumer of something else from that provider. He's rented, purchased, or subscribed to some --
Justice Sotomayor: But the provider has to be in the business of -- but -- so why 1 wouldn't Congress just protect at large anyone who's watching videos, free or not free?
Joshua I. Hammack: I would say I think there are several kind of overlapping reasons that Congress might have preferred the exact regime it enacted. I think the clearest one is that the consumer relationship provides an easy window for getting consent, and Congress was very concerned about consent and the -- the consumer controlling the disclosure of personally identifiable information. So having that window to get consent and, if you look at the 2013 amendments, you've got consent even for a two-year window. So advance consent comes into play. That consumer window is very important in terms of identifying the place to get consent. It could also be that Congress just thought this regime was more fair. You've got a consumer that's exchanged something of value with the provider, and, therefore, they're entitled to the protections and the possibility of liquidated damages. But whatever we -- I don't -- I won't dispute that there is some mystery about why 1 Congress did something different in (b)(1) than it did in, for example, Sections (d) and (e) when it protected personally identifiable information there.
Justice Kavanaugh: Can you explain exactly how the consent would work in your opinion?
Joshua I. Hammack: Absolutely. So consent works by allowing a provider to disclose personally identifiable information, and there are several locations where a provider can get that consent. One is the initiation of the consumer transaction. Another is when the person watches a video, you could have a banner pop up and --
Justice Kavanaugh: A non-video consumer transaction you're talking about there, right?
Joshua I. Hammack: It could be a non-video consumer transaction, or it could be a video consumer transaction. I think the statute is indifferent as to those two possibilities. Or it could be that the provider gets consent just simply before the disclosure is made. I think, again, the statute is 1 indifferent as to when the provider obtains that consent so long as it gets it before the disclosure is made.
Justice Jackson: Could it be also that -- I'm going back to Justice Sotomayor's question -- that we have a statute that was enacted at a time in which it wasn't really conceivable that you could access videos without purchasing them or renting them? In other words, I'm just wondering whether we have sort of limitations in the facts that we need to think about a little bit in -- in -- in trying to assess what Congress's intent was here?
Joshua I. Hammack: I -- I'm not sure it's true that in 1988 it was inconceivable that someone might watch a video on a computer. I think Congress was very concerned with the changing technological advances and -- and computer technology. But even more in 2013, when Congress stepped back into this statute and revised just the consent provision, I think it was intimately aware -- and, again, this is in the legislative history -- it was intimately aware 1 with the fact that people were streaming all sorts of videos to their phones and to their computers all the time. And I think it's important to note both personally identifiable information in (a)(3) and the consumer relationship in (a)(1) are technology-neutral. Requested or obtained doesn't identify any technology by which you'll request or obtain videos.
Justice Jackson: But I guess I'm just trying to go back maybe to even Justice Thomas's first question, which is, what is your theory as to why Congress has a broader category of consumers than the personally identified information and video tape service provider categories?
Joshua I. Hammack: Well, I think the -- the -- the definitions are different. We know that for sure because, if you just line them up and look at them, there are a number of material variations between them. As to why they're different -- and this goes back to the point I was trying to make earlier -- there might be some mystery about why they're different. Whether they're 1 different is very clear. And I think we just have to live with that mystery a little bit rather than rewrite the statute. But, again, I think there are good reasons and -- and, in fact, it might close loopholes to have them do different work because a business could structure its relationship with individuals so that you never rent, purchase, or subscribe directly to the video materials. You request or obtain them some other way. And you rent, purchase, or subscribe to something else entirely. Congress wrote this statute so that that sort of clever structure by a provider won't create a loophole that allows a --
Justice Jackson: Yeah, I mean, I thought your answer was going to be something like, really, the point of this statute was Congress's concern. You started with the concern about the release of video-watching history as it relates to one person. And so, really, the consumer, who is the consumer is not the thrust of this. The thrust of this is the video tape service provider and their activity with respect to 1 releasing or disclosing this information. And Congress wanted to -- or maybe -- maybe wanted to have the consumer relationship for the purposes that you indicated earlier, like consent or whatnot. But, for some of us, it matters why. And -- and mysteries aren't great. So I'm trying to come up with or understand the theory that Congress would have crafted a statute in this way.
Joshua I. Hammack: So I'm not sure I could have said it any better myself. I think you're absolutely right to be focused on the thrust of this statute is about personally identifiable information. Every operative provision of this statute protects some amount of personally identifiable information; (b)(1) just has another limitation so that it protects not all personally identifiable information but just the personally identifiable information concerning a consumer.
Justice Barrett: Mr. Hammack, speaking of personally -- personally identiful -- identifiable information -- sorry -- that definition uses "includes" instead of "means." Does it sweep more broadly 1 than the definition given there? What else could be in it? Why -- why would it say just "includes"? What else does it --
Joshua I. Hammack: So the parties agree that "personally identifiable information," although it says "includes," requires two strands of information: Something that identifies you and something that identifies the specific video materials or services that you requested or obtained. All the courts of appeals that have addressed that question have reached the exact same conclusion. If you look at the legislative history, Congress actually says why it used the word "includes" instead of "means." And it says we used "includes" there to create a floor, to create a minimum. Personally identifiable information could identify you or -- or identify facts about you in lots of other realms, but, at a minimum, it has to identify you as having requested or obtained those specific video --
Justice Alito: Personally --
Justice Barrett: And so that's a limit -- oh, sorry. Go ahead.
Justice Alito: Go ahead, please.
Justice Barrett: So go ahead. I'm done.
Justice Alito: Well, I was just going to ask: Personally identifiable by whom? By the NSA? I mean, how specific does this have to be?
Joshua I. Hammack: I think the answer to that question lies in subsection (b)(1), the liability provision, which says it prohibits disclosures of PII to any person. So, if it's identifiable to the "any person" that receives that disclosure, it's personally identifiable information.
Justice Kagan: You -- you said before that "includes" was used to suggest a floor, which makes perfect sense. But I think that the question is, does "includes" -- does that provision with the word "includes" also have a ceiling? I think that that's the question that would give rise to some concern. If you thought "includes" could also mean anything else in the world, then you wouldn't have the limit that you're saying comes from that 1 provision.
Joshua I. Hammack: I think, if you can imagine a disclosure that includes 10 different facts about an individual and just one of them identifies the specific video materials or services that he requested or obtained, Congress is saying that disclosure of that information is personally identifiable information only because of that one strand of information. It might have identified --
Justice Kagan: I see. But that one strand has to be there?
Joshua I. Hammack: Absolutely, yes, yes.
Justice Kavanaugh: And the question of PII, even if you prevail on the issue before us, would still be resolved on remand, correct?
Joshua I. Hammack: That's correct.
Justice Kavanaugh: It would still be open on remand? We're not resolving that here because there's a big argument, obviously, in the courts of appeals whether this kind of information constitutes PII, correct?
Joshua I. Hammack: That is correct. And this Court may someday have to resolve that question, but that day is not today.
Justice Sotomayor: Is that why you asked us -- is -- is that -- is that why you asked us to vacate instead of remand?
Joshua I. Hammack: That -- that's exactly why. There are other arguments that -- that Paramount raised below, and that's why we asked to vacate.
Justice Sotomayor: In -- including whether it's a video tape service provider?
Joshua I. Hammack: In the district court, it raised that question, not in the Sixth Circuit.
Justice Sotomayor: Not in the Sixth Circuit? But it is claiming that these videos are for free and not part of a consumer transaction, correct?
Joshua I. Hammack: Well, it's certainly claiming that the videos are available for free. And our response is, sure, they're delivered for free and you might request or obtain them for free, but that doesn't change the operative provisions of the statute either in --
Justice Sotomayor: No. But then would they be in the -- in the business of -- 1 of -- of in commerce for rental, sale, or delivery? That's up to the lower courts, correct?
Joshua I. Hammack: I -- I think that's exactly right. Our position is yes, but that's a question for remand.
Justice Alito: How have these suits generally prevailed in the lower courts?
Joshua I. Hammack: I'm sorry, what -- what do you mean by "prevailed"?
Justice Alito: Have the plaintiffs won?
Joshua I. Hammack: I think, if you look at Paramount's brief, it suggests that courts have routinely dismissed VPPA claims.
Justice Alito: And why do you think that is? Why do you think these smart lower court judges have rejected the kind of very literal interpretation of the statutory language that you're presenting to us today?
Joshua I. Hammack: I -- I think there's --
Justice Alito: Under every provision of this -- of this statute, why -- why have they rejected that?
Joshua I. Hammack: I think there is, 1 unfortunately, some reluctance to -- to believe that Congress actually meant what it said in the context of this statute. It wrote a broad law that is very protective of personally identifiable information. That prohibits a lot of disclosures of that kind of information, and I think --
Justice Alito: Well, it enacted a law that is based on the technology of the 1980s. And you can see this in every provision of this, in the title, Wrongful Disclosure of Video Tape Rental or Sale -- or Sale Records. And you can go through all the provisions, and it's like that. Suppose we look at (a)(1) and don't consider the statutory definition of "video tape service provider." Is Paramount a video tape service provider in the literal sense of the -- of the term?
Joshua I. Hammack: Yes, it is. And, in fact --
Justice Alito: In the literal sense of the term? Are they selling video tapes, VHS tapes?
Joshua I. Hammack: It -- it's very 1 important there that in (a)(4), the definition of "video tape service provider," it says "or similar audiovisual materials."
Justice Alito: Yeah. Okay. That's what I'm saying. But, if we go to that, what does it -- what does its -- what does it mean for it to be similar?
Joshua I. Hammack: Again, it's not a question that's presented here, but you have, I think, several avenues. One way is to say it's similar in that it's prerecorded. It's similar in that you watch it in the privacy of your home. It's similar in that it can be delivered to you personally; it's not something that you, for example, go to a theater and witness with other people.
Justice Alito: But it is not similar in the sense that you go to a Blockbuster store and get a VHS tape.
Joshua I. Hammack: Which is true enough, I guess, and, in fact, when Congress stepped back into the statute in 2013, it acknowledged that video cassette tapes were largely obsolete, Blockbuster was either on its way out or already gone, and everyone was streaming videos 1 directly to their phones. Congress saw no need to re-jigger the definitions or to change the provisions at (b)(1)(D) or (E) precisely because they're technology-neutral.
Justice Kavanaugh: Well, isn't there a concern about repurposing a statute that was really about public disclosure of what individuals viewed into a statute that regulates data sharing for targeted advertising on the Internet? Those are very different things. And the context here is the data sharing for the targeted advertising.
Joshua I. Hammack: So, on the first point, I would say, again, Congress wrote a law that isn't technology-specific. It wrote a broad law that spans all kinds of technologies, all kinds of ways that you might obtain those video materials or services, all kinds of ways you might rent, purchase, or subscribe to goods or services. And then the second point, Congress anticipated that this information would be useful for advertising purposes, and it crafted an exception under (b)(2)(D) that specifically allows disclosures of the subject matter of the 1 videos, along with a name and address, when that disclosure is made exclusively or solely for the purpose of advertising goods or services directly to the consumer. And it's important there goods or service -- it says "goods and services" in (b)(2)(D)(ii), that -- that exception, and it says "goods or services" in subsection (a)'s definition of "consumer." Our reading has "goods or services" and "goods and services" mean the same thing. By its own admission, Paramount's reading has those two virtually identical phrases mean two radically different things.
Justice Kagan: You're -- you're hypothesizing a prescient Congress, as opposed to a Congress that mistakenly stumbled into broader language than it meant to use.
Joshua I. Hammack: I think that is kind of the foundational premise that this Court indulges at the outset of every statutory interpret -- or interpretation case, namely, that Congress said what it meant and meant what it said when it wrote a statute. I think, if you start from the 1 opposite purpose, that maybe Congress accidentally kind of tripped and fell and wrote these words instead of those words, I think, if you indulge that premise, you actually end up landing in the exact same place precisely because, when you walk through (a)(4)'s definition of a "provider," (a)(3)'s definition of "PII," and then (a)(1)'s definition of "consumer," you see that these weren't accidental. The scopes are different every time even though the source is the same.
Justice Barrett: Mr. Hammack, I want to ask you about standing. So the Sixth Circuit recognized in a footnote that its view of standing here, saying that this was similar to publicity given private life, diverged from the Eleventh Circuit's approach to the question. And I want you to give me the pitch on the facts of your complaint as you allege them why you have standing and specifically here, you know, you can have disputes about, as the Eleventh Circuit has taken the position, that you need to have some publicity, telling one private individual isn't enough, but, here, so 1 far as I can tell, no person got this information, whatever this pixel thing is, right? So why do you have standing?
Joshua I. Hammack: Well, the person, I suppose, would be Facebook that got the information, just the largest social media company that exists. But it's also true -- and I think, if you -- if you look closely at the Sixth Circuit's opinion, it actually says all six circuits that have answered that standing question in the context of a VPPA claim are in accord. All of them say, yes, you have standing when there's been a disclosure even to one person of your personally identifiable information without your consent. All six are in accord on that point. The difference with the Eleventh Circuit is, well, what happens in a different context. I believe that was the FDCPA instead of the VPPA. But, in that context, you basically bounced a disclosure from a mail vendor to the consumer, and the court said in that context that's not really a disclosure. You're basically outsourcing kind of who's 1 going to mail the item to the consumer. Here, we've got an exception for disclosures made to the consumer. It's an open question, I guess, whether a similar mail vendor theory would apply to the VPPA, but that's just radically different than the facts we have here.
Justice Jackson: You all didn't brief standing, right? Is that an issue in this case right now?
Joshua I. Hammack: It --
Justice Jackson: I mean, it always is in the sense of our jurisdiction, but I'm just saying, do we have arguments written related to -- to standing?
Joshua I. Hammack: That's actually -- that -- that's absolutely right, that it was not put up in issue in this case. We argued that in the district court. Paramount abandoned its standing argument in the Sixth Circuit. It addressed it sua sponte. I think you're right that it's a background issue in this case. But it has not been briefed.
Justice Jackson: And can I ask you a clarifying question just about the lower court 1 dismissals? I -- are they on the consumer issue that is before us now? I thought there was a 2-2 split among the circuits on the definition of "consumer."
Joshua I. Hammack: That's absolutely right. There is a 2-2 split on the definition of "consumer." And both dismissals here, the -- the district court in Tennessee and the Sixth Circuit, held solely that this complaint should be dismissed because of the particular meaning we're giving to the word "consumer."
Justice Jackson: So, if these have not prevailed in large, it could be for other reasons than that?
Joshua I. Hammack: Absolutely. And, in fact --
Justice Jackson: Yeah.
Joshua I. Hammack: -- it often is for other reasons. If you look at Paramount's brief in opposition to our petition for certiorari, they point to personally identifiable information, disputes about whether someone is a provider. Those are other reasons, and they point to the fact that there are multiple real limitations to liability coexisting at once in subsection 1 (b)(1).
Justice Kavanaugh: Is -- the PII, is that a 3-1 split against your position on PII?
Joshua I. Hammack: That -- that's correct, Your Honor, yes.
Justice Kavanaugh: I think the other side's kind of big-picture argument is that we are a textualist Court but usually not a literalist Court and that we have a lot of principles and doctrines -- major questions, elephants in mouse holes, context, common sense -- you see those terms sprinkled through a lot of our cases, including in this general field, and that we should be thinking about that so that we don't read this statute for all it's worth when the Congress in the 1980s wasn't thinking about data sharing for targeted advertising. So that's a big-picture question for you to tackle.
Joshua I. Hammack: I think this Court's approach is exactly right, that you always look at text in context. We have no quarrel with that methodology because text in context shows you exactly what you normally presume at the 1 outset, which is that Congress meant "goods or services," a broader term, when it said "goods or services" in subsection (a)(1). It did not mean video materials or services, something it said in the same sentence, identically from a video tape service provider. It did not mean prerecorded video cassette tapes or similar audiovisual materials. It didn't even mention services at all in the definition, (a)(4)'s definition, of a "provider." It didn't mean those other phrases that it said elsewhere. It meant something different. And I think context absolutely reinforces that point.
Justice Alito: Well, Mr. Clement says your client is not -- was not a consumer -- was not a subscriber of services from a video tape service provider because what he subscribed to was a newsletter. So would you address that? He says that the "from" places a limitation on the literal -- what might be considered the literal interpretation of those phrases, and he has lots of examples in -- in which "from" is used in that way.
Joshua I. Hammack: I think that's an unusual meaning to ascribe to "from" from the outset. That is usually a word that identifies the source of material, not something that identifies the scope. And, here, we know for sure that Congress was looking at "from" as identifying source. And we know that by comparing (a)(1)'s definition of "consumer" to (a)(3)'s definition of "PII." Both identify subject matter that comes from a video tape service provider.
Justice Alito: I mean, there are a lot of examples in which "from" is used in exactly the way Mr. Clement tells us, and I -- I don't have to add an additional hypothetical, but I will anyway. Let's say I -- I got gas at a Costco or a Sam's Club, and then I'm having a conversation with my neighbor, who's complaining about the high cost of gas, and he says: I had to pay X per gallon -- Chief? All right. I had to pay X per gallon for gas. And I said: Well, I paid X minus 20 cents. And he says: Wow. Where did you get your gas? And I say: I got it from a provider 1 of optical services because Sam's Club and Costco have optical services as well. Now would -- would I be -- I would just be playing games if I said that, wouldn't I?
Joshua I. Hammack: I think, in that specific context, that would be a pretty unusual thing to say. But, if we could twist it just a little bit, it would be equally odd to say if we had a statute that defined gas stations a particular way, those that provide fuel, that would be our (a)(4) paradigm. Then we had in the same statute, the same sentence of the same statute, a provision that mentioned fuel materials or services or fuel goods or services. That's (a)(3). And then we had in the same statute, the same sentence, goods or services from a gas station. It would be exceedingly odd to say those three subject matters must be the same thing. Maybe I was feeling really brave at the gas station and I got sushi. That's a good or service from -- (Laughter.)
Joshua I. Hammack: -- a gas station, but 1 it's not a fuel good or service, and it's certainly not the fuel that you would normally buy at a gas station.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further?
Justice Thomas: The -- I'd like you to go back to your definition of a "video tape service provider." It means "any person" -- I'm just reading from the statute -- "any person engaged in the business in or affecting interstate commerce of rental" -- "rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials." How does that get us to streaming, to video that is streamed?
Joshua I. Hammack: I think the courts -- as far as I know at least, the courts are in accord that "or similar audiovisual materials" includes things like streaming videos to a personal device that you would watch in your house. It doesn't require a physicality, you know, necessarily that you're going to have a tape, a physical tape that you play that way. And, again, when you look at, in 2013, 1 Congress stepped back into this statute, it specifically said, we are aware streaming is rampant and we still think this statute covers the -- the personally identifiable information that results from those streaming activities.
Justice Thomas: How, in your own words, though, does that similar audiovisual material get you to streamed video?
Joshua I. Hammack: Because it's similar in critical ways to a video cassette tape. It allows you to watch that video in the privacy of your home. It allows you to watch it on your own. It allows you to pause, come back later, record -- or, I'm sorry, rewind, and pick it up as you wish. It's -- it's in lots of ways the exact same as the way you would interact with a video cassette tape.
Justice Thomas: Why isn't that closer to, during the 1980s, you had cassette tapes, you had the Blockbuster, you -- you rented the cassette tapes, the VHS, but you also had TV and you had cable? Wouldn't it seem that streaming is closer to cable TV than it is to picking up a video from Blockbuster?
Joshua I. Hammack: If we're looking at the 1 technology that was available in 1988, I think the answer has to be no precisely because you couldn't pause and rewind and stop and come back hours later and rewatch things the way that you can now both with a prerecorded video cassette tape and with the exact audiovisual materials that we have at issue here. And I would note too all of this concerns whether Paramount is a video tape service provider, which isn't before the Court today.
Chief Justice Roberts: Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: Just on the video tape service provider issue, I know that's not before us, but I think you've waved away some of the concerns about every business in America that has video on its website being targeted. But, certainly, the amicus briefs on the other side -- The Retail Litigation Center, the Chamber of Commerce -- point out that your reading would -- and -- and suits have been 1 brought against every sector of the economy -- print media publishers, movie theaters, advocacy groups, sports leagues, health and fitness websites, parenting advice companies, chess websites, crafting websites, professional networking sites, universities -- every other type of defendant under the sun in the words of the amicus brief. And so I think you've waved away some of the concerns about the breadth of your argument on this issue by saying, don't worry, it's not going to apply because of the definition of "video tape service provider." But I don't think other plaintiffs are going to be conceding that in the cases against those businesses, or is the amicus -- are the amicus briefs wrong in saying that that's a legitimate concern?
Joshua I. Hammack: Well, I would say a couple of points. One, it's true that those suits have been brought. It's also true that many of them have resulted in district courts saying: Wait a minute, that entity, like Chick-fil-A, is not a video tape service provider. This is the wrong kind of entity. 1 Congress wasn't targeting Chick-fil-A.
Justice Kavanaugh: And what makes someone a video tape service provider? If they have a video on their business website that, let's say, is three minutes long, are they a video tape service provider?
Joshua I. Hammack: I'm not sure the length of the video matters. What will always matter is exactly what (a)(4) says. You have to be engaged in the business of renting, selling, or delivering that audiovisual material.
Justice Kavanaugh: You're delivering it, right, by showing it on your website, correct?
Joshua I. Hammack: That -- that seems to me to be true. You're delivering it.
Justice Kavanaugh: Okay. And then what makes you --
Joshua I. Hammack: But are you engaged --
Justice Kavanaugh: -- what makes you in the business? Two minutes, three minutes, four minutes, 10 minutes? What is it?
Joshua I. Hammack: I don't think the number of minutes long that a video is.
Justice Kavanaugh: What does matter 1 then?
Joshua I. Hammack: I think it's -- it's exactly what Congress put into (a)(4). Are you engaged in that business? Chick-fil-A is not.
Justice Kavanaugh: I'm trying to -- I'm trying to --
Joshua I. Hammack: Paramount is.
Justice Kavanaugh: I understand the words that are used. And I don't mean to be too sharp, but I just want to have some explanation of what you think "engaged in the business" means because I think you waved away some of the concerns by saying, don't worry about Chick-fil-A, and I just want to know why.
Joshua I. Hammack: Well, I think, if you -- if you imagine the Blockbuster paradigm, it was engaged in the business of delivering those materials because that was what was on offer when you walked into the store. The same is true of a department store. When you walked in those doors, you could rent, purchase -- rent or purchase at least those --
Justice Kavanaugh: When you go on a business's website, which is how a lot of people shop, obviously, most people, you'll 1 often see a video quickly and --
Joshua I. Hammack: And -- and it might -- it -- it might be that those websites are in the business of delivering those video materials. I don't think that should alarm us so much precisely because (b)(1) has multiple other limitations in it. You also need PII to be collected. You need a knowing disclosure, not an accidental one, a knowing disclosure. You also need a consumer. So I think, even if we lived in a world where, for example, Chick-fil-A someday becomes a video tape service provider, there are lots of other off-ramps for liability included.
Justice Kavanaugh: I still don't think you've told me what a video -- and this is the last time I'm going to ask it -- what on the business's website's video makes it in the business of delivering?
Joshua I. Hammack: I apologize, Justice Kavanaugh, I'm not sure I have a better answer except to say putting that material on offer in your store, you are driving -- your -- your 1 profit or your business motive is linked to renting, selling, or delivering that material.
Justice Kavanaugh: A video of your product presumably. Okay, thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: And why do you allege that 247Sports meets that description?
Joshua I. Hammack: Precisely because it is engaged in the business of delivering a whole host of video materials on its website.
Justice Barrett: Well, that's just sort of repeating back the definition. But what makes it a provider? You say it's engaged in the business. Why? And what -- you know, what is the length of these videos? Why -- why are they similar to the old, you know, VHS tape?
Joshua I. Hammack: Again, I'm not sure that they're similar in terms of length, but, again, it's the profit motive that Paramount has when it makes these deliveries. It doesn't deliver them, you know, for kicks. It delivers them because it sells advertising. It drives business to the website.
Justice Barrett: Well, that's back to Justice Kavanaugh's concern because that's why every video -- I mean, if I'm on Nordstrom's website and I click to -- to see the model show me what the shoes are going to look like, the mode -- that's a profit motive. It's not doing it just for kicks, I mean, so that does bring in things like Chick-fil-A and basically every other business.
Joshua I. Hammack: I think the courts have been very consistent in saying it doesn't bring in every kind of business that incidentally happens to provide a single video on its website. That's certainly not our position either.
Justice Barrett: Okay.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So, even if we someday define the universe of video tape service providers because that's not in this case, but even if we define it broadly, can you speak to whether interpreting "consumer" as you have will have the negative consequences? There's a lot of policy arguments in 1 Respondent's brief, and I just wanted to invite you to talk about what the cure for this would be even if this is a broadly interpreted statute.
Joshua I. Hammack: I don't think it has any real negative consequence here precisely because all of the elements in (b)(1) have to coexist at the same time, so it's not just that you're a video tape service provider and, certainly, that this statute does not prohibit providers from having consumers. It doesn't prohibit them even from collecting or using personally identifiable information. The only thing that triggers liability, the only thing is the disclosure, the knowing disclosure, of personally identifiable information concerning a consumer without consent. And, again, consent is easy to obtain. That's the easiest off-ramp to liability that we have.
Justice Jackson: So that's -- so the cure is pretty simple. It's not that we have to worry so much about roping in all of these businesses. They would just figure out a way to get consent from people who are watching 1 these videos after they've been disclosed?
Joshua I. Hammack: Absolutely true. And I would say it's -- it's kind of a technological reality that more businesses are engaged in this business today than were engaged in it in 1988, and that's not a concern for exactly the reasons we just laid out: Consent is such an easy fix.
Justice Jackson: Thank you.
Joshua I. Hammack: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT
Paul D. Clement: Mr. Chief Justice, and may it please the Court: In 1988, Congress addressed a specific problem with a tailored solution, protecting the personally identifiable information of consumers of video tape service providers. For years, the statute worked as designed. Personal protection of video -- information of video consumers was protected, and there was virtually no litigation under this statute. 1 Then, however, the plaintiffs' class action bar discovered the VPPA and its statutory and punitive damages. The key to their effort to repurpose the statute is the argument, the claim, that the statute's definition of "consumer" uses the phrase "goods or services" in an unmodified way, so one can become a consumer without ever having rented, purchased, or subscribed to a video. That argument fails at the threshold because the phrase "goods or services" is not unmodified in the statute, but it takes its meaning from the immediate surrounding text. And that immediately surrounding text makes clear that the relevant goods or services are the prerecorded video cassette tapes or similar audiovisual materials that one could rent, purchase, subscribe to, from a video tape service provider. So just as one, when referring to goods or services from a medical service provider, would not logically refer to a cup of coffee or valet parking, when one refers to goods or services from a video tape service provider, one does not logically refer to 1 chicken sandwiches or dog bandanas. The alternative of interpreting the statute to create a veritable army of VPPA consumers without any personal information to protect unless and until years or even decades later they watch a free video has nothing to recommend it and underscores that Petitioner is misreading the statute. I welcome the Court's questions.
Justice Thomas: Would you tell me how is -- is -- and I thought it was 247Sports, but 247Sports -- I always thought of it as simply a sports site. The -- how does it convert to or is seen now by Petitioner as a video tape service provider? What's the logic of that? Because, if its primary business is simply sports and it shows videos, it would seem just naturally not to be a -- in the business of providing video service.
Paul D. Clement: So, Justice Thomas, with all due respect to my friend, I think he gets there the exact same way you would get there in understanding that Chick-fil-A is in the business of delivering videos. It's the same 1 thing. That's not what the website is mostly about, but there -- if you go to the website, the first thing you'll see is, like, a video starts playing. You don't even have to click on anything. It just starts playing. And that's the way that most websites work these days. And -- and most of the websites also have pixels because most of the reason you can get to free content, rather than being behind the pay wall, is because of targeted --
Justice Thomas: Does that mean they're in the business, though, of delivering video services?
Paul D. Clement: So, I mean, look --
Justice Thomas: They're in the business -- Chick-fil-A is in the business of selling chicken sandwiches. Twenty -- 247Sports is a sports site that has videos.
Paul D. Clement: Totally agree with you, Justice Thomas, as a common-sense matter. But here is I think a little bit of the problem, which is Congress did make it pretty clear that the department store, when it sells the video, is a video tape service provider even though, 1 when it sells furniture and clothes and everything else, it's not a video tape service provider. And the way I think, you know, I would -- the way I understand my friend's position is, yeah, it's all well and good that 247Sports.com is mostly just a sports site, but, because there are videos on it, that's enough to get you in the business of delivering videos. And that's the same way the plaintiffs -- they might not have succeeded, but that's the same way the plaintiffs got to Chick-fil-A, La-Z-Boy, Folger's, Godiva chocolates, and, of course, every newspaper virtually, you know, lots of small newspapers, because all of those newspapers, you know, they're basically in the business of having websites that have news. Some of the news articles are accompanied by videos. And, of course, their theory is not that you become a consumer just by going to the website. That's kind of the weird thing about this theory. Their theory when they sue the newspapers is, well, not everybody that goes 1 there is a consumer, but the people that actually still subscribe to the good old-fashioned paper that comes to your door, they are consumers because they bought a non-video or they subscribed to a non-video product. That gets them in the consumer door. And then maybe five years later, they go to the website --
Justice Gorsuch: Well, Mr. Clement --
Chief Justice Roberts: Well --
Paul D. Clement: -- and see a video, and all of a sudden we're off to the races.
Chief Justice Roberts: -- you've picked some hypotheticals that are particularly helpful for you. Chick-fil-A, you don't think of that as anything other than chicken. But there are a lot of stores that sell a lot of different things, including the type of videos that we're talking about. And so I don't know why we should focus just on the easy hypotheticals.
Paul D. Clement: Well, it's sort of my job to focus on the easy hypotheticals. (Laughter.)
Paul D. Clement: But I think, if you --
Chief Justice Roberts: I would think your job is to focus on the hard ones -- (Laughter.)
Chief Justice Roberts: -- at least from our point of view.
Paul D. Clement: Well, my -- my -- my job is to direct your attention to the easy hypotheticals, I would suppose. But, fair enough, your job is to direct to the harder hypotheticals. But I'm not sure there really are that many hard hypotheticals in the sense that we're not taking the position that if you do -- actually are in the business, you are a video tape service provider, that because you do lots of other things or the -- or the rest, that you're not covered. And we think -- I mean, you know, I think we would take the position, though I think Justice Thomas raises a good question about streaming services, but we would take the position that Netflix, when you go online to Netflix, that that might still be covered. So I think the core of the -- of the statute is still covered under our view. 1 But what I think what we would say is that this notion that you can just mix -- mix and match what makes you a consumer and what gives you the personally identifiable information that the statute protects for consumers, that mismatch doesn't make any sense. So a dog bandana --
Justice Kagan: I don't know if it's mixing and matching. It's following the definitions where they lead. So this definition says "goods and services." It doesn't say "audiovisual goods and services." Other definitions do have the modifier in them. That suggests that the fact that this definition does not have the modifier in it is especially important. And you -- you -- you can't get the modifier from the "from" clause because the "from" clause just tells you what -- where you're getting the goods and services from, but the goods and services are the goods and services not modified in any other way. So mixing and matching, there are three different definitions. You have to put them together. What you get, most naturally 1 read, is the Petitioner's understanding of the statute.
Paul D. Clement: Well, two things, Your Honor. I mean, one, you know, sometimes when that's what you get, maybe you should take another look. And the premise of your question, of course, is that "from a video tape service provider" isn't doing any definitional work in the definition of "consumer." And I would just take issue with that. I mean, you know, "from a video tape service provider," "video tape service provider" is a defined term in the statute. If you plug that definition into the statute, then what you get is "consumer" means any renter, purchaser, or subscriber of goods or services from any person engaged in the business in or affecting interstate or foreign commerce of rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials. After I'm done plugging that into the statute, I'm left with the conclusion that the goods or service we're talking about here are prerecorded video cassette tapes or similar audiovisual materials.
Justice Jackson: But they don't have to be, Mr. --
Paul D. Clement: That makes sense --
Justice Jackson: But they -- but they don't have to be. I mean, we -- we talked about hypotheticals. Let me -- let me give you what I hope is a hard hypothetical that you can address. So suppose we had Justice Breyer -- he was mentioned before -- entering a video store, and the store not only rents and sells videos but also books about films. And Justice Breyer is particularly interested in foreign films, so he buys a book at the counter about French films. And as he's flipping through the book, he sees mention of several films that he would actually like to preview in the store before he decides whether he wants to rent or buy them. And they have that service. And he says: Can I please go into the corner here, to the machine, and watch X, Y, Z film? So he does this. A reporter then comes in and acquires his video-watching history as a result of this escapade, and he has not actually purchased the films. He's 1 only purchased the book, but he's in the video store and he's watching the films, and his history then gets disclosed to the reporter. What I can't figure out is why it would matter from Congress's standpoint that he's only purchased a book under those circumstances when, really, what Congress cared about is whether his video-watching history was disclosed to a third party under this statute.
Paul D. Clement: So I guess what I would say is that, you know, no statute pursues its purpose to the ends of the earth. And, here, Congress was very clear that if you don't have a rental, purchaser, or subscription relationship, then you're not covered by this statute. And that's common ground between both parties.
Justice Jackson: Right. He has a purchaser relationship. What he's purchased is a good of the video store that is not a film or audiovisual. He's purchased a book that the video store sells, so he is a consumer of the video store. Your position, as I take it, would be that because he has not purchased video 1 materials, he's not a consumer for the purpose of this statute, and I'm asking you why that is.
Paul D. Clement: That's because of the way the statute's written. And for those that look at legislative history, that also seems entirely consistent with what Congress said. Congress envisioned the possibility of a department store selling videos and other things, and they were quite clear that they didn't think there was privacy protection for the other things. And then I also --
Justice Jackson: But privacy protection for the other things. So, if the reporter had asked what book did he buy, then that's not covered. But the reporter asked what videos did he watch, and that seems to me to be materially indistinguishable from the actual scenario that gave rise to this statute.
Paul D. Clement: But, with respect, I think, if Justice Breyer went into the same store, didn't buy the book but still looked at three videos in some cabin and didn't have to subscribe anything to do it, and the reporter 1 asked the same question, he would still fit --
Justice Jackson: He doesn't cover the --
Paul D. Clement: -- he would --
Justice Jackson: -- he doesn't cover the -- the consumer definition on its face because he's not a consumer. He hasn't purchased any goods or services.
Paul D. Clement: Right, right. But it's a perfect illustration of how the statute doesn't capture every disclosure of personal identifying information. It requires you to be a consumer. And, logically, the transaction that makes you a consumer is one that involves some personal identifying information. And what's illogical is that you become a consumer on day one, and then there's personal identifiable information doesn't catch up to you --
Justice Kavanaugh: What -- what seems --
Paul D. Clement: -- until day -- until years later.
Justice Kavanaugh: What seems different to me about now from the 1980s is not 1 so much the -- the plaintiffs but the type of personal identifying information. It's not your name being released. It's this data-sharing code, right? And that's quite a bit different. And there are a lot of arguments about PII. And then treating everyone as a video tape service provider, every business as opposed to the ones that are analogous to Blockbuster. But those two arguments, both of which may be raised in future cases in which your side's prevailing in the lower courts for the most part, are not the issues before us. So how do we think about, you know, the sky-is-falling concern in the amicus briefs and it's part of your brief when there are these two other arguments that you may prevail on? And why shouldn't we just follow "consumer" as written and worry about that in a future case?
Paul D. Clement: So a couple of things, Justice Kavanaugh. I mean, first of all, like, if you're going to tell me that I'm going to win on those other arguments, I mean, great. But we don't know that. My friend 1 has -- you know, thinks that he has great arguments on both PII and on video tape service provider. I also don't think you can really get away from the definition of "video tape service provider" in interpreting the scope of "consumer" because that word, that defined word, is part of the definition of "consumer." But I also want to say there are distinct problems with this expansive definition of "consumer," and it really takes you away from the structure of the statute because this statute operates on the assumption that consumers are going to have personally identifiable information and they are going to be the ones -- the consumers are going to be in the position to consent to the disclosure of that information. And my friend's position breaks that structure of the statute because, even when he answers Justice Jackson and says the way this is going to work is we're going to ask for consent from everybody before they go for a website, well, they are going to ask for consent from everybody and they're going to ask for consent from a whole bunch of people who 1 aren't consumers.
Justice Kavanaugh: Well, it's going to be overbroad consent, no doubt. But you -- it's a very easy solution for these businesses going forward. And I get the retrospective liability, believe me. But going forward, it's a very easy solution to get consent, isn't it? That's a question. And maybe it's not easy. But --
Paul D. Clement: So I'd like --
Justice Kavanaugh: -- tell me the answer going forward.
Paul D. Clement: Yeah. I mean, you did point to the two years of liability from the day you decide this case and all of that overhang, but to answer your specific question --
Justice Kagan: Well, this statutory language, you know, it is relatively clear. And you might have been -- be -- be charged with having read it. And going forward, you have two very simple solutions. One is to get consent. Easy enough. People do it every day. And the other is to stop selling people's private information. Take your pick.
Paul D. Clement: Yeah. Or put everything behind a pay wall. That would be great. But I guess what I would say is that --
Justice Kagan: Not the same thing.
Paul D. Clement: Well, I think that's one way that people will try to deal with this. But, as to the question --
Justice Kavanaugh: Can you answer --
Paul D. Clement: -- of whether consent is easy, the -- the statute's set up --
Justice Sotomayor: But what's the problem with not?
Paul D. Clement: I'm sorry?
Justice Sotomayor: What's the problem with not disclosing private video view?
Paul D. Clement: Oh, that -- that is --
Justice Sotomayor: I mean, it -- it's a business for you, and it might end your business if you don't want to get consent, but if you want to stay in the business, get consent, or just don't do it. What -- other than that you have created a business model that might contradict the law, because we still have a lot of open issues, what's the problem?
Paul D. Clement: So, I mean, the -- the problem is the pay wall issue, which is the reason that material is available for "free" on the Internet is precisely because it's being financed by targeted advertisement. And --
Justice Sotomayor: So people will be told that if you want to see this, you have to give consent.
Paul D. Clement: Right. And --
Justice Sotomayor: And so they'll make the choice of whether they want to watch it for free and have their view -- their viewing sold to other people or they won't. I mean, it'll be up to the person, which seems to me the way it should be.
Paul D. Clement: So I guess what I would say to try to answer the question, I'm just not sure the consent is going to be easy as you imagine. Certainly, Congress tried to make consent relatively sort of sticky and said that it had to be in a separate -- a separate formulation. It couldn't be with when you get consent to anything else. And, certainly, the way these cases have been litigated, people have argued that the consent, even when 1 websites have tried to get consent, wasn't clear enough, wasn't unmistakable. That could get --
Justice Kavanaugh: Well, that'll always be the argument. But it seems, just technologically, isn't it pretty easy for -- for you all to obtain consent going forward? It'll be a little more hassle for all of us, but --
Paul D. Clement: For everyone.
Justice Kavanaugh: Yeah. But one --
Justice Kagan: It's just one of those cookies boxes that comes up, right?
Justice Kavanaugh: Yeah.
Justice Kagan: Wouldn't you do it the exact same way?
Paul D. Clement: I -- I -- I -- I --
Justice Kagan: I mean, we do that a thousand times a day.
Paul D. Clement: I know you do that a thousand times a day. I will say that Congress, when it was -- when it was setting up this statute, did try to provide the consent, informed written consent. It also said that it has to be provided in a clear and conspicuous 1 manner for the consumer to withdraw on a case-by-case basis. So I -- I -- I think, look, I'm not telling you that it's impossible, but I don't think you should decide this case about the meaning of "consumer" on the assumption that consent is absolutely easy. And I do think what they would do, because they don't know who's a consumer because they don't know who bought a chicken sandwich or who bought a dog bandana, they're going to ask consent from everybody. And right there is a signal that something's off because the statute requires consent from the consumer to the disclosure of the consumer's information.
Justice Kavanaugh: Well, the definition might have been under-inclusive back in the day given modern technology, the definition of "consumer." I mean, maybe the -- the real concern Congress had if you translate it to today would be everyone who views the video.
Paul D. Clement: I don't know that that's the case. I mean, I think that's, you know, 1 open to speculation. But, as we point out in the brief, I think the one thing that's not open to speculation is that if Congress passes a statute to address the issues with targeted advertisement, they're not going to have coverage turn on the happenstance of where you bought a chicken sandwich or where you bought a dog bandana. I mean, that's kind of lunacy. And that's why I think when you get to that kind of result you go back. And then, to the point of --
Justice Kagan: But, Mr. Clement, take this -- the -- the -- the facts of this case, right? So I -- I don't know 247, but there's a sports site and somebody gets a newsletter, purchases a newsletter from that site.
Paul D. Clement: It was a free newsletter, so they don't purchase it. It's free.
Justice Kagan: Just let's assume that they --
Paul D. Clement: Just the way you sign up for, like, The New York Times.
Justice Kagan: -- they purchase something from that site.
Paul D. Clement: Yep.
Justice Kagan: And then they watch a lot of videos. And let's say a judge does this. And then it turns out that the judge watches some pretty funky sports videos, you know, like a lot of women wrestling or something. (Laughter.)
Justice Kagan: And that's embarrassing. That's embarrassing and exactly the way Congress thought we're passing this statute to prevent disclosure of that information. So why is it like this case? It kind of falls -- you know, a lot of times we get cases that they don't fall within the heartland of the statute, and we say, oh, well, the heartland of the statute isn't the whole statute. The paradigmatic case isn't the only case. But couldn't this case kind of be the paradigmatic case? It's like you can, like, watch lots of embarrassing sports videos that you don't want anybody else to know about. A judge could.
Paul D. Clement: I mean, I think it's hard to watch a lot of embarrassing videos on 247Sports based on my perusal of it. But, like, you know, I don't know, maybe, like, watching, you know, Chicago Bears films is embarrassing in certain parts of the country. I don't know. Maybe it is embarrassing. The point is, though, it shouldn't turn on whether you also subscribed to a free online newsletter, a free email newsletter. See, the --
Justice Kagan: Maybe that's right. Maybe that's right. Maybe the thing that Congress should do as they look at this again is to take away that limitation. But -- but -- but that wouldn't really serve your purpose, would it? I mean, that's -- that's a limitation that works in your favor, and the fact that it excludes some people who might be embarrassed doesn't seem like an argument for your interpretation of the statute.
Paul D. Clement: Well, here's what I think is an argument for my statute, which is it's undeniable that the statute turns on that 1 happenstance, whether you get the chicken sandwich, whether you subscribe to the free email newsletter, and that doesn't make a lot of sense. And then the other thing that doesn't make a lot of sense is, because they've untethered the "consumer" definition from "personally identifying information" and from "video tape service provider," then you get the situation where there's no temporal connection whatsoever. So, under their theory, I can buy my chicken sandwich 10 years ago, I can buy my recliner 15 years ago, and then I don't watch a video on the website until a decade later. Congress would never write a statute like that. If they really expected people to be able to -- and I'll say it again -- mix and match consumer status with personal information and video watching, they would have put some temporal limit that connected the two.
Justice Barrett: Mr. Clement --
Paul D. Clement: And then --
Justice Barrett: -- doesn't yours have a problem with temporal limit too, though? 1 May -- may -- let me just make sure I understand your theory.
Paul D. Clement: Yeah.
Justice Barrett: If said judge purchases a subscription to 247Sports that allows, you know, him or her to watch these videos at Point A and then five or 10 years later watches a free video from 247Sports, I mean, haven't you also created a temporal -- there's a gap?
Paul D. Clement: So there could be a gap in certain situations, but I think it's a very, like, narrow gap. I don't think you're going to have millions of consumers that are all of a sudden VPPA consumers. But it's also -- there is no gap in this sense. If the initial purchase is a video purchase or, I think, to be more precise, is a prerecorded video cassette tape or similar audiovisual material, there is, under the statute, an immediate opportunity to give advance consent for two years. And so that provision that was added in 2013, even in the somewhat funky hypo I think you're giving me, I mean, that -- that 1 advance consent provision works sensibly from the get-go, whereas, under my friend's position, you could buy a dog bandana and then you could give advance consent to the disclosure of PII before there's any PII under his reading of the statute, and then five years later, when you finally have PII, your advance consent has already expired. And that just shows, like, every provision in this statute is -- makes sense if you tether what makes you a consumer to what generates PII in the first instance. And --
Justice Jackson: Except, Mr. -- Mr. Clement, I still think you -- you have a line-drawing problem because, from the standpoint of the statute being concerned about the disclosure of personally identifying information, you are creating two different categories of customers. You're creating two different categories of people. In other words, the statute only protects those whose personally identifying information is disclosed if they have a consumer relationship that involves buying those videos, as opposed to those who have 1 their personally identifying information disclosed, but they bought something else. I think that's irrational as well if the thrust and the point of the statute is to protect the -- against the disclosure of personally identifying information. And I understand your point being that because we have any definition of "consumer," it's under-inclusive. You have people who are not consumers whose personally identifying information might be disclosed. Justice Kagan brought that point up with you. But, fine, assuming we have that oddity, you seem to be making yet another one by carving up even more the category of people whose personally identifying information is disclosed.
Paul D. Clement: I don't think I'm carving it up more, and I think I'm doing exactly what Congress intended. And Congress -- you know, for those who read Senate reports, Congress focused on this possibility that you could have the department store and they would sell a couple of video tapes and they would sell a lot of -- bunch of other 1 stuff, and they didn't think they wanted to protect the other goods and services. Now my friend will tell you, yeah, that piece of legislative history focused on the PII definition. But here's the thing: It would be pretty weird to have the thing in the statute that does the limiting work to be a definition that by its terms is expressly inclusive. That's not a well-designed tool to do limiting work. What is a well --
Justice Jackson: I guess I don't understand -- I don't understand your answer to my question. I mean, I'm saying that what mattered in the statute was the unlawful disclosure without consent of personally identifying information. And your interpretation of the statute has that coming out differently, the same set of circumstances happening, coming out differently depending upon what particular item the consumer purchased. And I don't understand why that should be the dividing line or why that makes any sense in this concept.
Paul D. Clement: So, to me, it makes a 1 ton of sense because what makes you a consumer is a transaction that generates personal identifiable information. And when you buy a book or a dog bandana, under both parties' view of the statute, that doesn't generate any personally identifiable --
Justice Jackson: But that's not what makes you a consumer under the statute, right? The statute has a different category of personally identifying information than it does of consumer. So it doesn't make you a consumer to have personally identifying information under this statute.
Paul D. Clement: What I'm saying is, if there is a close connection between what makes you a consumer and what generates personally identifiable information, the whole statute, including the consent provisions, work coherently. And that's why I think Congress said that when you buy a video, you're a consumer, but when you buy a book or you buy gasoline or you buy a chicken sandwich, you're not a consumer because, at the moment you buy the book, the -- the chicken sandwich, the 1 gasoline, there's no personally identifiable information.
Justice Jackson: Right.
Paul D. Clement: So you don't really --
Justice Jackson: The statute doesn't say that. That's your theory of what the statute said when it said "goods or services."
Paul D. Clement: It's both parties' agreed understanding of personally identifiable information until you get specific video information. And speaking of specific video information -- I don't want to sit down before I make this point -- my friend tries to make something of the fact that the word "video" appears in the personally identifiable information definition before the phrase "from a video tape service provider." And he says, aha, they know how to use it. But he ignores that they use two words. They didn't use "video." They used "specific video." And there's a very good reason they did that because there's another provision in the statute, (b)(2)(D), that allows the disclosure of general subject matter 1 information about videos in certain circumstances. So "specific video" is doing work in the "personal identifiable information" definition that there's no analogue to in the definition of "consumer." And here's something else to consider. If you did what my friend wants you to do to make this an easier case, if Congress had put "video" in front of "goods or services," it would have gone a long way to making the phrase "from a video tape service provider" redundant. And my friend tells you we try to avoid redundancy if at all possible. But think of the way the statute works. In order to be a consumer, you have to rent, buy, or subscribe to a video. And if -- no matter what else your business does, if you rent, sell, or deliver videos, prerecorded videos, you are per force a video tape service provider. So, if you had a hypothetical statute that has the word that he wants in it, it said video goods and services from a video tape service provider, at that point, you have two options. Either you admit that "from a video 1 tape service provider" is doing no work, or you do what you might do, which is to struggle to give it some meaning, you would say, ah, you know, there actually are some video goods or services that aren't actually prerecorded video cassette tapes or similar audiovisual materials. So take, for example, a blank VCR tape. Now that's clearly a video good or service, but it's not prerecorded and it doesn't involve any personal identifiable information. So, in a hypothetical statute that had the word "video" where my friend wants it, you probably would look to "from a video tape service provider" to limit the scope of -- of video goods or services. But, if you can look to "from a video tape service provider" to limit the scope of video goods or services, I don't know why you can't look to it to limit the scope of goods or services. And I do think that is natural, ordinary meaning, as Justice Alito alluded to, but it also makes particular sense in a statute that's focused on privacy concerns that 1 uniquely arise out of video transactions. Go back to the example I started with with goods or services from a medical service provider. Okay. In ordinary English, I don't think that covers buying a cup of coffee from the hospital. But, in a medical privacy statute, nobody cares whether I got, like, you know, half caf, but what they care about is whether I had an appendectomy or I had plastic surgery or something. So you would naturally in that context say that a consumer of goods or services from a medical service provider talks about people that got actual medical services, not people who got a valet parking service when they got to the -- the medical office. And that's what we're asking to you do here. And my friend's whole position really depends on reading three words in the definition in isolation. But it's a 15-word definition, and the other 12 words all direct you to audiovisual materials that are similar to prerecorded video cassettes because it starts with this triad of terms: Renter, buyer, or subscriber. 1 Weird. It doesn't appear anywhere else in the U.S. Code, but it precisely captures the three ways that you got video tapes in 1988, and it starts with rental, which was the -- was the single most obvious way you would get video tapes in 1988. And then, if you carry through to the definition of a video tape service provider, you see the same triad. You see selling video tapes, renting video tapes, or delivering them. And it all works together as a harmonious whole. And I wouldn't just interpret those three words in splendid isolation and read them to the limits of the world.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Well, you argue and your amici argue that accepting the Petitioner's interpretation of (a)(1) would lead to drastic consequences, and, in response to that, it is said that's not necessarily so because you could win under other provisions of this statute. 1 And, of course, you don't want to say no, we stand a chance of losing under these other provisions based on the same sort of linguistic interpretation that Petitioner is advancing here. And, therefore, I think, for this reason, Mr. Hammack was asked about (a)(4). And I wonder if you could say something about (a)(4) and what you understand the statute to mean when it talks about "any person engaged in the business of delivery of audiovisual materials that are similar to video cassette tapes"? What does it mean to be "in the business"? And does it mean -- does it reach any -- any person or entity that derives any economic benefit from providing access to videos or, at the other extreme, does it mean any person or entity that is engaged solely in that or predominantly in that? What does it mean?
Paul D. Clement: So I don't think it can mean, unfortunately -- it would help me win this case eventually -- if I thought it meant, like, predominantly or exclusively. But I 1 think that's pretty impossible to square with the idea that Congress plainly wanted to capture department stores that sold videos back in 1988, grocery stores that sold videos in 1988. So I think that if you're engaged in the business, and, you know, there's a reference to interstate or foreign commerce, so I'm thinking they're casting a pretty wide net, and you deliver videos, it seems most naturally read -- and some of you are maybe suggesting I'm most -- not most naturally reading "consumer," but I actually think I'm most naturally reading all 15 words. But I think, most naturally read, this would capture Chick-fil-A, La-Z-Boy, all of these things, because they're certainly in business and they are delivering videos. Now, like, I don't want to put two feet on that because I could be back in some court arguing no, no, no, that, you know, it means something slightly different. But I think it's tough given that Congress clearly wanted to capture the -- the -- the -- the department stores and the grocery stores. 1 And that's why I really think the most natural way to narrow this statute is to get the definition of "consumer" right and limit it to the consumers -- and, again, we're -- we're talking about the (a)(4) definition. But the (a)(4) definition's kind of baked right in to the definition of "consumer." And that's why I think it would have been redundant if -- I mean, you know, just to make the redundancy point one more time, I mean, (a)(4) is already baked in and already says a prerecorded video cassette tape or similar audiovisual material. So I suppose what Congress could have said in the definition of "consumer" is consumer means any renter, purchaser, or subscriber of prerecorded video cassette tapes or similar audiovisual materials from a video tape service provider, which, of course, is a provider of prerecorded video cassette tapes or similar audiovisual materials.
Justice Alito: Right, right. Yeah.
Paul D. Clement: But that would be hopelessly awkward and redundant. And it -- it just underscores that if Congress had done 1 both, it would have been redundant, and I think there was a perfectly good reason it left "goods or services" unmodified.
Justice Alito: Well, the statute means what the statute means regardless of the -- of the consequences, but it would be interesting to know whether "in the business of" means deriving any sort of commercial advantage from providing access to videos on a website because that would seem to impose huge retroactive liability on a broad, broad range of entities. And I'm not sure I understood Mr. Hammack's definition of what it means to be "in the business of." Maybe he'll take another shot at that on -- on rebuttal.
Paul D. Clement: Yeah. I -- I must confess I did not understand it either. And I don't think it explains away Chick-fil-A. And just to put it in concrete terms, if you look at the complaint in this case, he alleges that there are over a hundred thousand subscribers to 247Sports.com that he wants to represent in a class action. Now I'm not great at math, but $2500 1 per plaintiff in a class action that includes at least a hundred thousand people, I think, is $250 million of liability in this case alone. And then you look at the Chamber brief and all those footnotes, you look at The Retail Litigation Center appendix and all of those cases, and there's a reason, I think, as you alluded to, that every district court judge that looks at this thinks this cannot be right, this is crazy. And I would suggest that a careful textual reading of all 15 words in this definition actually gets you to the result that, yes, it's not right.
Justice Alito: All right. Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Well, some very intelligent circuit court judges have disagreed with you. The linchpin of your argument is that the transaction that some -- that makes someone a VPPA consumer must be the same one that generates PII. But the VPPA refutes that. "(D) governs the use of personally identifiable 1 information" -- I'm quoting -- "obtained in any manner as evidence in some governmental proceeding." So you don't have to be a consumer in there. And it requires destroying such information as soon as practicable. Those provisions apply regardless of whether the information concerns a consumer. So, if the statute explicitly envisions that PII can exist without a consumer, I don't understand why it's absurd that a consumer might exist who hasn't yet generated but will generate PII because you're only liable if you are disclosing PII of someone's video-viewing. So what's -- I don't understand.
Paul D. Clement: So I do think there is a fundamental difference between having PII without a consumer and having a consumer that has no PII. Now, as we point out in our brief --
Justice Sotomayor: Well, no, a consumer will have PII because you're going to disclose PII. You're only liable --
Paul D. Clement: No, no --
Justice Sotomayor: -- whether -- what 1 you're saying that it's different than if the consumer doesn't create it at that moment of the transaction.
Paul D. Clement: No, what I'm saying is, actually, under his view as I understand it, if you go into the Blockbuster, the last one, the brick-and-mortar store, you buy your dog bandana, and then you never look at the Blockbuster website, then you are a consumer in his view, but you have no PII. You are an inchoate VPPA consumer. And I think that is far more anomalous than --
Justice Sotomayor: All right. Then why? When you finally buy something, it is what you buy, that video-viewing, that's being protected.
Paul D. Clement: Well, you don't have to buy anything. And that's another anomaly. See, under the statute Congress wrote, if you walked in to a -- even a video store and they gave you a video, you're not protected by the statute. You have to have a video transaction. And what makes his position and I would -- I would respectfully suggest consumers 1 without PII so anomalous is they essentially make this free online viewing of videos that otherwise doesn't make anybody a consumer and then they retroactively become a consumer because they bought a chicken sandwich 10 years later, they look -- they subscribed to the local newspaper, they signed up for a free email. I don't think that makes any sense. And I do think it does damage to the statute that having the converse doesn't because, as I've alluded to, all of the consent provisions are premised on the idea that the person that can provide consent is the consumer.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I just want to make sure I understand your view of (a)(3). So this is the PII includes information which identifies a person as having requested or obtained specific video materials. What does "includes" mean, do you believe?
Paul D. Clement: So I think that it means something different from "means." I think it 1 does set a floor. And that's why I don't think the definition of PII can do the limiting --
Justice Kagan: Well, what kind of floor are you saying? In other words, does it include information which identifies a person as having requested or obtained other materials or services? I mean, your bandanas or your La-Z-Boys, do you think that there's no requirement that the person have requested or obtained video materials or services?
Paul D. Clement: Well, it's tricky, right, because, if we're going to be literal, I mean, "includes" --
Justice Kagan: Well, I want to -- I want to know what you -- you think.
Paul D. Clement: So --
Justice Kagan: Does it include bandanas and La-Z-Boys?
Paul D. Clement: So I would say that it doesn't. But it's hard to get there from a literal reading of the text because the textual definition is just an "includes" definition. Now I know from the Senate report, which I read, that Congress didn't want to protect private information about dog bandanas 1 or furniture that you bought from a department store. So, if we're going to be faithful to the intent that was reflected in the Senate report, we have to figure some way to limit this statute so that it protects video information and not bandana information. And I would respectfully suggest that, you know, you could do it, and I -- I would suppose I might even argue for it someday, but it's hard to get the limit from a definition that's an inclusive definition. And I think the better place to get the limiting principle is from the definition of "consumer."
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: Do you disagree with the American Newspaper amicus brief that "similar" would at least require content like full-length movies and television shows that were on video tape lining Blockbuster shelves?
Paul D. Clement: Ultimately, when that issue comes up, I would -- you know, in that --
Justice Gorsuch: You're going to -- you're going to take that position?
Paul D. Clement: I am going to take that position.
Justice Gorsuch: You'd agree with newspapers that that -- that that -- that -- that is a distinction?
Paul D. Clement: And I might even go one further and agree with Judge Randolph that they have to be --
Justice Gorsuch: Physical?
Paul D. Clement: -- physical.
Justice Gorsuch: Yeah.
Paul D. Clement: Because, you know, materials is kind of physical.
Justice Gorsuch: Yeah. Thank you.
Paul D. Clement: So, if you -- yeah.
Chief Justice Roberts: Justice Kavanaugh? Justice Barrett?
Justice Barrett: Do you concede that Salazar has standing?
Paul D. Clement: We haven't argued that he doesn't. And I guess this is what -- if I could -- I think the best answer to that is I think it depends on what you make of page 11 of the Meta brief. I don't know if you have it in 1 front of you, but it's -- you know, it's got this gobbledegook. And that's -- that's what's disclosed to a third party. And so I take it the question would be, is the disclosure of gobbledegook to a third party sufficiently close to the common law analogue of disclosing personal information to a third party to satisfy Article III? That's a tricky question. I mean, if you want us to, we can brief it. I would really hate for the Court to reject -- like, it -- to say that there's definitively standing here in this case without any briefing. So I don't know if you can drop a footnote and say this is just a drive-by jurisdictional ruling -- (Laughter.)
Paul D. Clement: -- so you can ignore it in the future. I don't know if you're allowed to do that, but --
Justice Barrett: You raised it in the district court.
Paul D. Clement: We did raise it in the district court. And then we --
Justice Barrett: But then dropped it 1 before the Sixth Circuit.
Paul D. Clement: We did. But you know the funny thing about standing arguments, you can't really drop them.
Justice Barrett: Right.
Paul D. Clement: So, if you -- if you're intrigued by that question, you know, I'd be happy to provide supplemental briefing. And -- but I -- but I do think the question really comes down to whether that gobbledegook is sufficiently close to a common law analogue.
Justice Barrett: Well, this gobbledegook also presents the question of whether it's PII, right, if nobody can look at it and really identify -- only a computer can figure out what this means?
Paul D. Clement: Yeah, and maybe that's one more reason to not decide the standing question definitively without more briefing because I do think there is a close relationship between the standing question and the PII question. So, you know, if you say there's standing here because it's sort of not really totally gobbledegook, then my friend's going to 1 try to use that in the lower courts to say, aha, it is personally identifiable information. So, again, I'm -- we're happy to brief it if you'd like us to. But I -- I do think it would be a mistake to definitively decide standing without any briefing.
Chief Justice Roberts: Justice Jackson? Thank you, counsel. Rebuttal, Mr. Hammack? REBUTTAL ARGUMENT OF JOSHUA I. HAMMACK ON BEHALF OF THE PETITIONER
Joshua I. Hammack: Thank you, Mr. Chief Justice. Just a couple of points. First, I think it's really important to keep our eye on the ball that what we're looking for here in Section (b)(1) is any consumer of such provider, any consumer. So, when we -- when we have questions about, well, what about someone who purchased a dog bandana or someone who purchased a La-Z-Boy recliner or someone who purchased something or rented something years ago, our question is made simpler by the fact that (b)(1) says any consumer of such provider. 1 So is someone who rented something a number of years ago or purchases a chicken sandwich from a provider, is that person any consumer of such provider? The answer has to be yes. That's the most natural reading. It aligns with ordinary meaning all over the statute. Second, I want to address the -- the point that my friend on the other side made regarding this shift in the number of cases brought happening, you know, a decade or so ago. And that shift did not occur because plaintiffs suddenly woke up one day and discovered the Video Privacy Protection Act. It occurred because of the advent of pixel technology, this technology that all kinds of businesses started embedding in their websites that is automatically target -- tracking and disclosing all sorts of personally identifiable information about you, including the personally identifiable information specifically defined in this statute. Third, that huge liability problem, if we get through all of the various elements of the statute and land in a world where there is 1 large liability, I won't dispute that that's a possibility, but I think it's -- it reflects necessarily the fact that this is a huge scale disclosure regime. That large liability is only possible because of the scope of the disclosures of personally identifiable information here. Fourth, I want to address the mix-or-match point that my friend on the other side made. And I would say it's entirely unsurprising that you might mix or match as between what makes you a consumer and what gives rise to PII. That's exactly why and the direct result of the fact that Congress mentioned two different relationships to two different subject matters from the same source across those two provisions. It's the inevitable consequence of that. To go to Justice Jackson's point regarding the -- the hypothetical that you were discussing with my friend on the other side, I think that exchange really shows the incredible loophole that their reading creates where they can basically structure themselves around VPPA compliance by making sure that you request or 1 obtain video materials or services, but we've structured our business so that you never actually rent, purchase, or subscribe to them. You'll rent, purchase, and subscribe to lots of other things but not those video materials. So, suddenly, we can disclose your personally identifiable information with impunity without your consent. That, I think, should be the anomaly when you're looking at this statute. Thank you, Mr. Chief Justice.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:30 a.m., the case was submitted.)