The Supreme Court’s Right Flank Wants to Give You Fewer Privacy Rights Than a Famous Judge

Background. The Video Privacy Protection Act (VPPA) of 1988 was enacted by Congress after journalist Michael Dolan obtained and published a list of 146 films rented by Supreme Court nominee Robert Bork from a Washington, D.C. video store. The disclosure, though it revealed nothing scandalous, prompted bipartisan concern about the privacy of personal records held by commercial vendors. The VPPA passed with broad support and was signed into law by President Ronald Reagan, establishing one of the earliest federal statutory privacy rights for consumers in the United States.

The VPPA prohibits "video tape service providers" from knowingly disclosing "personally identifiable information" about consumers to third parties without informed written consent, with limited exceptions. Violations carry statutory damages of $2,500 per plaintiff. The law predates the commercial internet by several years and was written with physical video rental stores in mind, creating ongoing interpretive disputes as courts have applied it to streaming services, websites, and digital platforms.

The broader landscape of US digital privacy law has remained fragmented. Unlike the European Union, which enacted the comprehensive General Data Protection Regulation (GDPR) in 2018, the United States has no single federal omnibus privacy statute. Instead, privacy protections are governed by a patchwork of sector-specific laws — including the VPPA, the Children's Online Privacy Protection Act (COPPA, 1998), the Health Insurance Portability and Accountability Act (HIPAA, 1996), and the Electronic Communications Privacy Act (ECPA, 1986) — alongside state laws such as the California Consumer Privacy Act (CCPA, 2018).

The use of tracking pixels — small, invisible image files embedded in web pages or emails that transmit user data to third parties such as Meta (Facebook) — has become a widespread commercial practice. Regulators and litigants have increasingly scrutinized tracking pixels under existing privacy statutes, including the VPPA, HIPAA, and state wiretapping laws. Dozens of class-action lawsuits have been filed against media companies, hospitals, and retailers alleging that embedding Meta's pixel constitutes an unlawful disclosure of user data.

The Supreme Court's current 6-3 conservative supermajority, established after the confirmations of Justices Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020), has shaped the Court's approach to statutory interpretation, with several justices favoring textualist methodologies that can cut in different directions on consumer-protection statutes.