The D.C. Circuit just handed a far-reaching victory to companies facing claims under the Video Privacy Protection Act (VPPA) for their use of pixels and other website tracking technologies.  By narrowing the meaning of “consumer” under the VPPA to those who purchase, rent, or subscribe to a video good or service—and excluding those who purchase, rent or subscribe to any “good or service,” and then later watch an unrelated video on that provider’s website—the decision significantly limits who can bring VPPA claims.  Of equal note is Judge Randolph’s concurrence, who would have held that defendant Washington Examiner was not a “video tape service provider” (“VTSP”) under the statute because a VTSP transacts in “prerecorded video cassette tapes or similar audio visual materials,” not short online videos.

I.          Background

The case—Pileggi v. Washington Newspaper Publishing Company, LLC, --- F.4th ----, 2025 WL 2319550 (D.C. Circ. Aug. 12, 2025)—involved garden-variety VPPA allegations.  The plaintiff alleged that she subscribed to the Washington Examiner’s email newsletter. Wholly apart from the newsletter, she independently navigated to the Washington Examiner’s website and watched videos there.  The website contained the Meta Pixel, which transmitted her video viewing history to Meta, enabling the newspaper to send her targeted advertisements. 

The district court granted the Washington Examiner’s motion to dismiss for failure to state a claim—holding that although the complaint alleges a concrete injury, plaintiff was not a “consumer” within the meaning of the VPPA, since she did not subscribe to a video or similar audio-visual good or service.  On appeal, plaintiff’s primary argument was that she need not subscribe to a video good or service to be a consumer under the VPPA, just any good or service.  According to plaintiff, her subscription to the Washington Examiner’s newsletter was sufficient.  The D.C. Circuit disagreed, and affirmed the dismissal.

II.        The Decision

To state a claim under the VPPA, a plaintiff must allege, among other elements, that the plaintiff is a “consumer,” defined as a “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”  18 U.S.C. § 2710(a)(1).  A “video tape service provider,” in turn, is defined as a person who supplied “video cassette tapes or similar audio visual material.”  Id. § 2710(a)(4).

The key issue on appeal was what connection, if any, must there be between the “goods or services” that the plaintiff subscribes to and the video the plaintiff viewed.  According to the D.C. Circuit, only “those who rent, purchase, or subscribe to a video are ‘consumers.’”  It is not enough, the court clarified, for a plaintiff to subscribe to some other good or service from the company (e.g., an email newsletter) and then separately consume videos offered on the company’s website. If that were enough, the court reasoned, then a person who buys tickets to a baseball game could later bring a VPPA claim against the team after watching a video on the team’s website, while the person who only visits the website could not.  The court found this line-drawing unprincipled and absurd.

The court also emphasized that a broader reading of “consumer” would be unworkable:  If subscribing to (or purchasing or renting) any good or service sufficed, then companies would have to somehow determine whether website visitors had previously subscribed to a product or service from the company, which the court called a “daunting task under any circumstances.”  The VPPA contains substantial penalties ($2500 per violation), and it could not have been Congress’s intent to impose such burdens on VTSPs.

The D.C. Circuit therefore found that the plaintiff had failed to allege that she was a consumer, since the newsletter she subscribed to was separate from the videos on the website she viewed.  In so holding, the D.C. Circuit significantly narrowed who can assert claims under the VPPA.  The Court left open, however, what the result would have been had the plaintiff alleged that her viewing history of videos hyperlinked within the newsletter had been shared.  “We have no opportunity,” the court stated, “to address what kinds of connections are required between a product like a newsletter and a video for a cause of action under the [VPPA] to arise.”  We expect to see plaintiffs try to adapt their pleadings to fit within this mold.

As to the threshold question whether plaintiff had Article III standing, the D.C. Circuit, consistent with several other circuits, held that plaintiff alleged a concrete injury.  The court found that the kind of injury stemming from disclosure of private video viewing history without consent is akin to the injuries that traditional common law torts, like intrusion upon seclusion, recognized and sought to protect.  While the degree of injury or level of offensiveness might be different, Congress could still recognize harms on the same spectrum to bestow standing.

III.       The Concurrence

Judge Randolph, writing separately in concurrence, would have gone even further.

He stated that he would have reached the same conclusion via a “straighter path”: that the Washington Examiner is simply not a “video tape service provider” that can be sued. He opined that the VPPA is anachronistic, now “largely obsolete” in “today’s digital world.”  The VPPA, Judge Randolph reasoned, “addressed a different problem in a different time,” and it is up to Congress, to update the statute if it wants it to apply to “today’s digital world.”

Judge Randolph would have therefore held that “video tape service providers” under the statute are only those persons offering “analog mediums” like “cassette tapes, laser discs, compact discs, and magnetic tape machines,” not companies offering online videos.

We will see whether his position carries the day.  If so, it would largely stop the flow of VPPA litigation.  At the very least, it should, along with the majority’s decision, prove to be a deterrent to plaintiffs, if not influential for courts, as the law in this area continues to develop.