The Unexpected Renaissance of the VPPA
Why a 1988 Privacy Law Is Your 2025 Digital Risk
Most executives building digital strategies have never heard of the Video Privacy Protection Act. That's understandable. It was written in 1988 to regulate videotape rentals.
But this 37-year-old law has become a litigation risk facing modern digital businesses, and most organizations have no idea they're exposed.
The surge in VPPA litigation isn't theoretical. In 2025 alone, companies from cinema chains to satirical news sites have faced class action lawsuits under this legislation. The Second Circuit Court of Appeals recently called the VPPA "no dinosaur statute," and with circuit courts now split on key interpretations, we're heading toward a Supreme Court review that could reshape digital privacy liability across entire industries.
The Bork Bill Meets the Digital Age
The VPPA emerged from political scandal, not technological foresight. When Supreme Court nominee Robert Bork's video rental history appeared in newspapers during his 1987 confirmation hearings, Congress reacted swiftly. The resulting law prohibited video rental companies from disclosing customer viewing habits without explicit written consent.
Fast-forward to 2025, and courts are applying this analog-era legislation to digital ecosystems that didn't exist when it was written. The law's broad definition of "videotape service provider"—any business engaged in "delivery of prerecorded video cassette tapes or similar audio visual material"—now captures virtually any website with embedded videos.
This isn't a narrow interpretation by activist judges. Courts have ruled that local newspapers delivering audio-video content qualify as videotape service providers. Video game companies fall under VPPA jurisdiction because their games include non-interactive cutscenes. Even satirical news websites hosting video content face litigation under this framework.
The legal landscape becomes even more complex when examining who qualifies as a "consumer" under the law. The Second Circuit recently ruled that subscribing to a free email newsletter makes someone a consumer if the newsletter provider also offers video content—even if the videos are freely available to the public. Meanwhile, the Sixth Circuit reached the opposite conclusion in a nearly identical case, creating a circuit split that increases uncertainty for businesses operating across multiple jurisdictions.
Where Digital Marketing Meets Legal Liability
The real business risk lies in how modern digital marketing practices intersect with VPPA requirements. Most organizations implement third-party tracking technologies—Meta Pixels, Google Analytics, video streaming analytics—without considering whether they're creating VPPA violations.
Here's how seemingly routine business practices become legal exposure: when users watch video content on your website while logged into Facebook, Meta Pixels can transmit personally identifiable information (including unique user IDs and video titles) back to Meta for advertising and analytics purposes. Under VPPA, this data sharing requires specific written consent that's separate from general terms of service or privacy policies.
Recent lawsuits demonstrate how plaintiffs are using increasingly sophisticated methods to identify these violations. In one case, a plaintiff used ChatGPT to analyze browser developer tools and understand how tracking pixels were disclosing viewing data to third parties. The complaint included screenshots of the ChatGPT conversation, showing how AI tools can help average users decode complex technical processes and identify potential VPPA violations.
This accessibility of technical analysis tools means organizations can't rely on the complexity of their tracking implementations to avoid scrutiny. Any website visitor can now use readily available AI assistants to understand data flows and identify potential privacy violations.
The Strategic Implications for Digital Business
The VPPA's unique consent requirements create operational challenges that extend beyond typical privacy compliance. Unlike other privacy regulations that allow consent to be embedded in broader terms of service, the VPPA mandates that video-related consent be obtained through separate, distinct documentation.
This requirement has significant implications for digital marketing operations. Organizations that have spent years optimizing conversion funnels around streamlined consent experiences may need to implement additional friction points specifically for video-related data sharing. The two-year consent expiration requirement adds ongoing operational complexity that most marketing automation systems aren't designed to handle.
For businesses with significant video content strategies, the compliance burden becomes even more complex. Companies must evaluate every third-party integration—analytics tools, advertising pixels, content delivery networks, customer data platforms—to determine whether they create VPPA exposure when users interact with video content.
The risk calculus is particularly challenging because VPPA violations carry statutory damages without requiring proof of actual harm. This creates attractive conditions for class action litigation, especially when combined with the broad interpretation of who qualifies as a "videotape service provider" and the accessibility of tools to identify technical violations.
Circuit Splits and Supreme Court Implications
The current circuit split creates immediate strategic challenges for organizations operating in multiple jurisdictions. A business practice that's legally compliant in the Sixth Circuit could generate liability in the Second Circuit, forcing companies to implement the most restrictive interpretation across all operations.
The NBA's petition for Supreme Court review highlights the stakes involved. The Court's decision could either narrow VPPA application to limit digital business exposure or expand it to create even broader liability. Given the fundamental disagreement between circuit courts on key interpretations, Supreme Court intervention seems increasingly likely.
This uncertainty creates strategic planning challenges for digital businesses. Organizations must decide whether to implement costly compliance measures based on the most restrictive current interpretation, risk exposure by maintaining current practices, or delay major digital initiatives until legal clarity emerges.
Implementation Strategy: Beyond Reactive Compliance
Forward-thinking organizations are treating VPPA risk as a strategic planning consideration rather than a compliance afterthought. This involves conducting comprehensive audits of video content delivery, third-party integrations, and consent management processes specifically focused on VPPA requirements.
The most sophisticated approaches involve implementing consent management platforms that can handle VPPA's unique requirements while maintaining optimized user experiences. This includes developing separate consent flows for video-related data sharing, implementing technical controls that prevent pixel firing without proper consent, and creating compliance monitoring systems that track VPPA-specific consent expiration.
Organizations are also evaluating whether video-related tracking provides sufficient business value to justify the compliance complexity and litigation risk. In some cases, eliminating tracking technologies from video-enabled pages or implementing server-side analytics that don't create VPPA exposure provides better risk-adjusted returns than compliance implementation.
The Broader Privacy Technology Landscape
The VPPA's unexpected relevance illustrates a broader challenge facing digital businesses: legacy privacy laws written for analog business models are being applied to digital ecosystems in unpredictable ways. This creates strategic planning challenges that require ongoing legal and technical evaluation.
Organizations building comprehensive privacy strategies must account for the possibility that seemingly outdated legislation could create significant liability through judicial interpretation. This requires privacy technology implementations that can adapt to evolving legal requirements without requiring fundamental architectural changes.
The VPPA also demonstrates how AI tools are democratizing technical privacy analysis, making it easier for plaintiffs to identify and pursue violations. This accessibility trend suggests that organizations can no longer rely on technical complexity to obscure questionable privacy practices.
Your Next Strategic Move
The VPPA's resurrection as a digital privacy enforcement mechanism represents more than a compliance challenge—it's a case study in how rapidly evolving technology can breathe new life into dormant legal frameworks. Organizations that proactively address VPPA risk are positioning themselves to handle similar challenges as other analog-era laws meet digital business models.
The strategic question isn't whether to invest in VPPA compliance, but whether your organization will lead in developing comprehensive privacy frameworks that can adapt to unexpected legal interpretations or react to each new enforcement trend as it emerges.
The VPPA is included as a part of FLLR Consulting’s cookie audit services. To learn more about what your organization can do, get in touch with our team today.