Salazar v. Paramount at Argument: Justices Called VPPA Consent ‘One of Those Cookies Boxes’

We previewed the case in what the Court will decide about newsletters and the Meta Pixel. This is what was said in the courtroom, from the official transcript (93 pages, 10:05 to 11:30 a.m.). Page numbers are given as “Tr.” so you can check each quote.

The text fight, in brief

The petitioner, Michael Salazar, was represented by Joshua Hammack; Paramount by Paul Clement. Hammack’s case is that the “consumer” definition says “goods or services” with no video qualifier, while the neighbouring definitions do use one. Justice Kagan put that reading most strongly: following the three definitions, “what you get, most naturally read, is the Petitioner’s understanding of the statute” (Tr. 50–51).

Clement’s answer is that “from a video tape service provider” does the limiting: plug in that defined term and the goods or services are “prerecorded video cassette tapes or similar audiovisual materials” (Tr. 51). His analogy was a hospital: a consumer of goods or services “from a medical service provider” does not mean someone who bought a coffee or used valet parking (Tr. 44, 75). Justice Alito offered his own: buying gas at a warehouse club and saying you got it “from a provider of optical services” (Tr. 31–32). Hammack replied with sushi from a gas station — a good “from” the station, but not fuel (Tr. 32–33).

Justice Jackson pressed Clement with a customer who buys a book in a video store and then watches films in the store: why would protecting his viewing history depend on what he bought (Tr. 52–54)? Justice Kavanaugh pressed Hammack on the other side: is this “repurposing a statute” about public disclosure of what people watched “into a statute that regulates data sharing for targeted advertising on the Internet” (Tr. 23)?

Consent became the centre of the argument

Hammack opened by saying Paramount needed only its consumers’ consent, “something it and Facebook agree was easy to get” (Tr. 4), and described where it could be asked for: at sign-up, or “you could have a banner pop up” when someone watches a video (Tr. 11). Several justices picked that up:

• Justice Kavanaugh, to Clement: “going forward, it’s a very easy solution to get consent, isn’t it?” (Tr. 58).
• Justice Kagan: going forward there are “two very simple solutions. One is to get consent. … And the other is to stop selling people’s private information” (Tr. 58).
• Justice Sotomayor: “So people will be told that if you want to see this, you have to give consent” (Tr. 60).
• Justice Kagan: “It’s just one of those cookies boxes that comes up, right?” — “we do that a thousand times a day” (Tr. 61).

Clement’s reply is the part site operators should read twice. “I’m just not sure the consent is going to be easy as you imagine” (Tr. 60). He pointed out that Congress made VPPA consent “relatively sort of sticky”: it must be “a separate formulation”, “informed written consent”, with a “clear and conspicuous” way “to withdraw on a case-by-case basis” — and that in litigation, plaintiffs have argued that even sites that tried to get consent did not get it clearly enough (Tr. 60–62). He also argued that because sites cannot tell who is a “consumer”, “they’re going to ask consent from everybody” (Tr. 62).

A cookie banner is not automatically VPPA consent

Clement’s description matches the statute. The VPPA’s consent exception (§ 2710(b)(2)(B)) requires “informed, written consent (including through an electronic means using the Internet)” that is:

• “in a form distinct and separate from any form setting forth other legal or financial obligations”;
• given either at the time of the disclosure or in advance for a set period “not to exceed 2 years” or until withdrawn;
• paired with “an opportunity, in a clear and conspicuous manner”, to withdraw, case by case or for ongoing disclosures.

A generic “Accept all” banner that bundles analytics, ads and video into one click may not meet that bar; whether a particular design does is a question for counsel. Two things are not in question. A pixel that fires on a video page before any choice has no consent at all. And if the Court adopts the broad reading, the justices who suggested consent is easy were describing the fix going forward, not a defence for disclosures already made.

What the Court was told it is not deciding

• Whether pixel data is “personally identifiable information”. Kavanaugh asked whether that would “still be open on remand”; Hammack agreed, and agreed the appeals courts have split 3–1 against his side on it (Tr. 18–19, 29). Paramount’s merits brief, as the petitioner’s reply put it, conceded the point for this appeal — but at argument both sides treated it as live for later (Tr. 56–57).
• Who is “in the business” of delivering video. Kavanaugh asked Hammack three times what makes a business website with a short video a provider (Tr. 37–40). Clement, asked by Alito, said that most naturally read the definition “would capture Chick-fil-A, La-Z-Boy” — though he said he did not want to “put two feet on that” (Tr. 78). To Justice Gorsuch, he said he would argue that “similar audiovisual materials” means content like full-length movies and TV shows, and possibly physical media (Tr. 86–87).
• Standing. Justice Barrett asked how Salazar has standing if, as far as she could tell, no person received the information; Hammack answered that Facebook did. Standing was not briefed. Clement called the pixel payload shown in Meta’s amicus brief “gobbledegook” and offered supplemental briefing rather than a ruling without it (Tr. 25–27, 87–90).

The numbers that were said out loud

Clement told the Court the complaint alleges over 100,000 subscribers to 247Sports.com, and at the statute’s $2,500 per person that is “$250 million of liability in this case alone” (Tr. 80–81). Kavanaugh read out the sectors named in industry amicus briefs: publishers, movie theaters, sports leagues, fitness sites, chess and crafting websites, universities (Tr. 35–36). In rebuttal, Hammack said the wave of cases “occurred because of the advent of pixel technology” that businesses embedded in their websites (Tr. 91).

What to do while the Court decides

Nothing said at argument changes the practical advice from our preview; it sharpens it.

• Check what fires on video pages before a choice. Open a video page in a clean profile and filter the Network panel for facebook.com/tr and other ad hosts. Look for the page URL or video title travelling with an identifier. Our network-tab guide shows the method, and the pre-consent tracking checklist covers the rest of the page.
• Treat video disclosure as its own consent purpose. The statute asks for consent that is distinct and separate, renewable within two years and easy to withdraw. A banner category that names video viewing and ad platforms explicitly is closer to that than a single “Accept all”. Ask counsel whether your wording is enough.
• Keep titles out of ad requests. If your video URLs contain titles, a pixel that sends the full URL sends the title too.
• Know which forms create “subscribers”. Newsletter sign-ups, free accounts and purchases are exactly what the Court is deciding about.

We will cover the decision when it comes. Nothing here is legal advice.

The first question in any of these cases is what your video pages send before anyone clicks. Scan your site and see which requests leave before a choice is made with CookieInspector.