[25-459] Salazar v. Paramount Global

0:00John G. Roberts, Jr. We will hear argument this morning in Case 25-459, Salazar versus Paramount Global. Mr. Hammack.

0:08Joshua 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.

0:31Joshua I. Hammack 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 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.

1:08Joshua I. Hammack 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.

1:31Joshua I. Hammack 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.

2:06Joshua I. Hammack I welcome the Court's questions.

2:09Clarence Thomas But wouldn't it be natural to think that goods or services from a video tape service provider would be video-related services?

2:19Joshua 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.

2:38Joshua I. Hammack 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.

3:05John G. Roberts, Jr. 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 a park, and the question was, did that mean that the person carrying his pet snail in his pocket was subject to prosecution.

3:28John G. Roberts, Jr. 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?

3:37Joshua 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.

3:58Joshua I. Hammack We have two different limitations within that section. "Personally identifiable information" is one limitation. "Concerning any consumer" is a second. And the reading, I 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.

4:26Joshua I. Hammack 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.

4:52Amy Coney 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?

5:04Joshua I. Hammack That's not our position, 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).

5:29Amy Coney Barrett Is your theory that 247Sports was in engaged in that business or that Paramount was?

5:34Joshua I. Hammack Well, in this case, Paramount Global is doing business as --

5:37Amy Coney Barrett As. Okay.

5:37Joshua 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.

5:44Amy Coney 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 provider?

5:54Joshua 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.

6:12Sonia 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?

6:32Joshua 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 --

6:47Sonia Sotomayor But the provider has to be in the business of -- but -- so why wouldn't Congress just protect at large anyone who's watching videos, free or not free?

6:59Joshua 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.

7:19Joshua I. Hammack 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.

7:46Joshua I. Hammack But whatever we -- I don't -- I won't dispute that there is some mystery about why Congress did something different in (b)(1) than it did in, for example, Sections (d) and (e) when it protected personally identifiable information there.

8:01Brett M. Kavanaugh Can you explain exactly how the consent would work in your opinion?

8:08Joshua 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 --

8:25Brett M. Kavanaugh A non-video consumer transaction you're talking about there, right?

8:29Joshua 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 indifferent as to when the provider obtains that consent so long as it gets it before the disclosure is made.

8:50Ketanji Brown 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.

9:15Joshua 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 with the fact that people were streaming all sorts of videos to their phones and to their computers all the time.

9:45Joshua I. Hammack 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.

9:59Ketanji Brown 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?

10:17Joshua 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 different is very clear. And I think we just have to live with that mystery a little bit rather than rewrite the statute.

10:40Joshua I. Hammack 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.

11:00Joshua I. Hammack Congress wrote this statute so that that sort of clever structure by a provider won't create a loophole that allows a --

11:07Ketanji Brown 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 releasing or disclosing this information.

11:35Ketanji Brown Jackson 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.

11:56Joshua 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.

12:20Amy Coney Barrett Mr. Hammack, speaking of personally -- personally identifiable information -- sorry -- that definition uses "includes" instead of "means." Does it sweep more broadly than the definition given there? What else could be in it? Why -- why would it say just includes? What else does it --

12:37Joshua 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."

13:03Joshua I. Hammack 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 --

13:21Samuel A. Alito, Jr. Personally --

13:21Amy Coney Barrett And so that's a limit -- oh, sorry. Go ahead.

13:23Samuel A. Alito, Jr. Go ahead, please.

13:23Amy Coney Barrett So go ahead. I'm done.

13:25Samuel A. Alito, Jr. Well, I was just going to ask: Personally identifiable by whom? By the NSA? I mean, how specific does this have to be?

13:34Joshua 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.

13:51Elena 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 provision.

14:18Joshua 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 --

14:39Elena Kagan I see. But that one strand has to be there?

14:42Joshua I. Hammack Absolutely, yes, yes.

14:43Brett M. Kavanaugh The question of PII, even if you prevail on the issue before us, would still be resolved on remand, correct?

14:52Joshua I. Hammack That's correct.

14:52Brett M. 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?

15:04Joshua I. Hammack That is correct. And this Court may someday have to resolve that question, but that day is not today.

15:09Sonia Sotomayor Is that why you asked us -- is -- is that -- is that why you asked us to vacate instead of remand?

15:16Joshua I. Hammack That -- that's exactly why. There are other arguments that -- that Paramount raised below, and that's why we asked to vacate.

15:21Sonia Sotomayor Including whether it's a video tape service provider?

15:25Joshua I. Hammack In the district court, it raised that question, not in the Sixth Circuit.

15:27Sonia Sotomayor Not in the Sixth Circuit. But it is claiming that these videos are for free and not part of a consumer transaction, correct?

15:35Joshua 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 --

15:48Sonia Sotomayor No. But then would they then be in the -- in the business of -- of -- of in commerce for rental, sale, or delivery? That's up to the lower courts, correct?

15:58Joshua I. Hammack I -- I think that's exactly right. Our position is yes, but that's a question for remand.

16:03Samuel A. Alito, Jr. How have these suits generally prevailed in the lower courts?

16:07Joshua I. Hammack I'm sorry, what -- what do you mean by "prevailed"?

16:10Samuel A. Alito, Jr. Have the plaintiffs won?

16:11Joshua I. Hammack I think, if you look at Paramount's brief, it suggests that courts have routinely dismissed VPPA claims.

16:17Samuel A. Alito, Jr. 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?

16:30Joshua I. Hammack I -- I think there's --

16:31Samuel A. Alito, Jr. Under every provision of this -- of this statute, why -- why have they rejected that?

16:37Joshua I. Hammack I think there is, 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 --

16:54Samuel A. Alito, Jr. 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?

17:29Joshua I. Hammack Yes, it is. And, in fact --

17:30Samuel A. Alito, Jr. In the literal sense of the term? Are they selling video tapes, VHS tapes?

17:35Joshua I. Hammack It's very important there that in (a)(4), the definition of "video tape service provider," it says "or similar audiovisual materials."

17:42Samuel A. Alito, Jr. 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?

17:49Joshua 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.

18:05Samuel A. Alito, Jr. But it is not similar in the sense that you go to a Blockbuster store and get a VHS tape.

18:11Joshua 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 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.

18:37Brett M. 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.

19:05Joshua 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.

19:21Joshua I. Hammack 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 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.

19:44Joshua I. Hammack 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.

20:09Elena 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.

20:18Joshua 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 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.

20:58Amy Coney 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 far as I can tell, no person got this information, whatever this Pixel thing is, right?

21:35Amy Coney Barrett So why do you have standing?

21:37Joshua 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.

22:08Joshua I. Hammack 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 going to mail the item to the consumer.

22:30Joshua I. Hammack 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.

22:43Ketanji Brown Jackson You all didn't brief standing, right? Is that an issue in this case right now?

22:48Joshua I. Hammack It --

22:48Ketanji Brown 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?

22:54Joshua I. Hammack That's actually -- 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.

23:11Ketanji Brown Jackson And can I ask you a clarifying question just about the lower court 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."

23:22Joshua 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."

23:37Ketanji Brown Jackson So, if these have not prevailed in large, it could be for other reasons than that?

23:41Joshua I. Hammack Absolutely. And, in fact --

23:42Ketanji Brown Jackson Yeah.

23:42Joshua 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 (b)(1).

24:02Brett M. Kavanaugh Is -- the PII, is that a 3-1 split against your position on PII?

24:07Joshua I. Hammack That -- that's correct, Your Honor, yes.

24:09Brett M. 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.

24:45Brett M. Kavanaugh So that's a big-picture question for you to tackle.

24:48Joshua 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 outset, which is that Congress meant "goods or services," a broader term, when it said "goods or services" in subsection (a)(1).

25:08Joshua I. Hammack 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.

25:36Samuel A. Alito, Jr. 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.

26:13Joshua 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.

26:39Samuel A. Alito, Jr. 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.

27:12Samuel A. Alito, Jr. 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 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?

27:36Joshua 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.

28:09Joshua I. Hammack 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.) - a gas station, but it's not a fuel good or service, and it's certainly not the fuel that you would normally buy at a gas station.

28:26John G. Roberts, Jr. Thank you, counsel. Justice Thomas, anything further?

28:31Clarence 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."

29:02Clarence Thomas How does that get us to streaming, to video that is streamed?

29:08Joshua 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.

29:28Joshua I. Hammack And, again, when you look at in 2013 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.

29:43Clarence Thomas How, in your own words, though, does that similar audiovisual material get you to streamed video?

29:54Joshua I. Hammack Because it's similar in critical ways to a video cassette tape. It allows to you 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.

30:14Clarence 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?

30:41Joshua I. Hammack If we're looking at the 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.

31:01Joshua I. Hammack And I would note too all of this concerns whether Paramount is a video tape service provider, which isn't before the Court today.

31:09John G. Roberts, Jr. Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh?

31:15Brett M. Kavanaugh Just on the video tape service provider issue, I know that's not before us, but I think you've waived 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 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.

31:58Brett M. Kavanaugh And so I think you've waived 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?

32:21Joshua 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. Congress wasn't targeting Chick-fil-A.

32:40Brett M. 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?

32:51Joshua 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.

33:00Brett M. Kavanaugh You're delivering it, right, by showing it on your website, correct?

33:05Joshua I. Hammack That -- that seems to me to be true. You're delivering it.

33:07Brett M. Kavanaugh Okay. And then what makes you --

33:08Joshua I. Hammack But are you engaged --

33:08Brett M. Kavanaugh - what makes you in the business? Two minutes, three minutes, four minutes, 10 minutes? What is it?

33:14Joshua I. Hammack I don't think the number of minutes long that a video is.

33:17Brett M. Kavanaugh What does matter then?

33:18Joshua 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.

33:24Brett M. Kavanaugh I'm trying to -- I'm trying to --

33:25Joshua I. Hammack Paramount is.

33:26Brett M. 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 waived away some of the concerns by saying don't worry about Chick-fil-A, and I just want to know why.

33:41Joshua 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 --

33:59Brett M. Kavanaugh When you go on a business's website, which is how a lot of people shop, obviously, most people, you'll often see a video quickly and --

34:08Joshua 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.

34:28Joshua I. Hammack 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.

34:38Brett M. 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?

34:50Joshua 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 profit or your business motive is linked to renting, selling, or delivering that material.

35:07Brett M. Kavanaugh A video of your product presumably. Okay, thank you.

35:11John G. Roberts, Jr. Justice Barrett?

35:12Amy Coney Barrett And why do you allege that 247Sports meets that description?

35:16Joshua I. Hammack Precisely because it is engaged in the business of delivering a whole host of video materials on its website.

35:23Amy Coney 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?

35:36Joshua 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.

35:50Amy Coney 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.

36:07Joshua 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.

36:17Amy Coney Barrett Okay.

36:19John G. Roberts, Jr. Justice Jackson?

36:20Ketanji Brown 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 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.

36:54Joshua 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.

37:14Joshua I. Hammack 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.

37:30Ketanji Brown 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 these videos after they've been disclosed?

37:43Joshua 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.

37:58Ketanji Brown Jackson Thank you.

37:59Joshua I. Hammack Thank you.

37:59John G. Roberts, Jr. Thank you, counsel. Mr. Clement.

38:04Paul 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.

38:30Paul D. Clement 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.

38:57Paul D. Clement 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.

39:24Paul D. Clement 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 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.

40:04Paul D. Clement I welcome the Court's questions.

40:08Clarence 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.

40:46Paul 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 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 --

41:19Clarence Thomas Does that mean they're in the business, though, of delivering video services?

41:25Paul D. Clement So, I mean, look --

41:26Clarence 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.

41:37Paul 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, when it sells furniture and clothes and everything else, it's not a video tape service provider.

41:59Paul D. Clement 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.

42:41Paul D. Clement 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 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 --

43:08Neil Gorsuch Well, Mr. Clement --

43:09John G. Roberts, Jr. Well --

43:09Paul D. Clement - and see a video, and all of a sudden we're off to the raises.

43:12John G. Roberts, Jr. - 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.

43:32Paul D. Clement Well, it's sort of my job to focus on the easy hypotheticals. (Laughter.) But I think, if you --

43:35John G. Roberts, Jr. I would think your job is to focus on the hard ones -- (Laughter.) - at least from our point of view.

43:40Paul D. Clement Well, 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.

44:03Paul D. Clement 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.

44:20Paul D. Clement 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 --

44:36Elena 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.

44:56Elena Kagan 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 read, is the Petitioner's understanding of the statute.

45:22Paul 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.

46:05Paul D. Clement 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.

46:16Ketanji Brown Jackson But they don't have to be, Mr. --

46:17Paul D. Clement That makes sense --

46:18Ketanji Brown 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?

47:07Ketanji Brown Jackson 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 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.

47:41Paul 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.

47:58Ketanji Brown 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 materials, he's not a consumer for the purpose of this statute, and I'm asking you why that is.

48:20Paul 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.

48:40Paul D. Clement And then I also --

48:41Ketanji Brown Jackson 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.

48:55Paul 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 asked the same question, he would still fit --

49:08Ketanji Brown Jackson He doesn't cover the --

49:08Paul D. Clement - he would --

49:08Ketanji Brown 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.

49:14Paul 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 --

49:39Brett M. Kavanaugh What -- what seems --

49:40Paul D. Clement - until day -- until years later.

49:42Brett M. Kavanaugh What seems different to me about now from the 1980s is not so much 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.

50:19Brett M. Kavanaugh 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?

50:34Paul 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 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."

51:01Paul D. Clement 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.

51:25Paul D. Clement 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 aren't consumers.

51:44Brett M. 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 --

52:02Paul D. Clement So I'd like --

52:03Brett M. Kavanaugh - tell me the answer going forward.

52:04Paul 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 --

52:11Elena Kagan Well, this statutory language, you know, it's 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.

52:31Paul D. Clement Yeah. Or put everything behind a pay wall. That would be great. But I guess what I would say is that --

52:36Elena Kagan Not the same thing.

52:37Paul D. Clement Well, I think that's one way that people will try to deal with this, but as to the question --

52:41Brett M. Kavanaugh Can you answer --

52:41Paul D. Clement - of whether consent is easy, the -- the statute's set up --

52:44Sonia Sotomayor But what's the problem with not?

52:46Paul D. Clement I'm sorry?

52:47Sonia Sotomayor What's the problem with not disclosing private video view?

52:53Paul D. Clement Oh, that is --

52:53Sonia 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?

53:15Paul 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 --

53:28Sonia Sotomayor So people will be told that if you want to see this, you have to give consent.

53:32Paul D. Clement Right. And --

53:33Sonia 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.

53:49Paul 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 websites have tried to get consent, wasn't clear enough, wasn't unmistakable.

54:16Brett M. 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 --

54:27Paul D. Clement For everyone.

54:28Brett M. Kavanaugh Yeah. But one --

54:29Elena Kagan It's just one of those cookies boxes that comes up, right? Wouldn't you do it the exact same way?

54:33Paul D. Clement I -- I -- I -- I --

54:34Elena Kagan I mean, we do that a thousand times a day.

54:37Paul 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 manner for the consumer to withdraw on a case-by-case basis.

54:55Paul D. Clement 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.

55:24Brett M. 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.

55:38Paul D. Clement I don't know that that's the case. I mean, I think that's, you know, 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 kink of lunacy. And that's why I think when you get to that kind of result you go back.

56:03Paul D. Clement And then, to the point of --

56:05Elena Kagan But, Mr. Clement, take 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.

56:17Paul D. Clement It was a free newsletter, so they don't purchase it, it's free.

56:21Elena Kagan Just let's assume that they --

56:22Paul D. Clement Just the way you sign up for, like, The New York Times.

56:24Elena Kagan - they purchase something from that site.

56:25Paul D. Clement Yep.

56:26Elena 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.) And that's embarrassing. That's embarrassing and exactly the way Congress thought we're passing this statute to prevent disclosure of that information.

56:56Elena Kagan 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.

57:24Paul 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 --

57:46Elena 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.

58:08Paul 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 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.

58:36Paul D. Clement 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.

58:59Amy Coney Barrett Mr. Clement --

59:00Paul D. Clement And then --

59:00Amy Coney Barrett - doesn't yours have a problem with temporal limit too, though? May -- may -- let me just make sure I understand your theory.

59:04Paul D. Clement Yeah.

59:05Amy Coney 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?

59:26Paul 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.

59:54Paul D. Clement 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 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.

1:00:22Paul D. Clement 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 --

1:00:34Ketanji Brown 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.

1:00:53Ketanji Brown Jackson 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 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.

1:01:20Ketanji Brown Jackson 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.

1:01:45Paul 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 a lot of -- bunch of other stuff, and they didn't think they wanted to protect the other goods and services.

1:02:03Paul D. Clement 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 --

1:02:22Ketanji Brown 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.

1:02:54Paul D. Clement So, to me, it makes a 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 --

1:03:09Ketanji Brown 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.

1:03:22Paul 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 gasoline, there's no personally identifiable information.

1:03:51Ketanji Brown Jackson Right.

1:03:51Paul D. Clement So you don't really --

1:03:52Ketanji Brown Jackson The statute doesn't say that. That's your theory of what the statute said when it said "goods or services."

1:03:56Paul 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.

1:04:20Paul D. Clement 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 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."

1:04:45Paul D. Clement 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.

1:05:04Paul D. Clement 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 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.

1:05:52Paul D. Clement 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.

1:06:16Paul D. Clement 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 uniquely arise out of video transactions.

1:06:40Paul D. Clement 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 plastic surgery or something.

1:07:00Paul D. Clement 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.

1:07:25Paul D. Clement 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. Weird. It doesn't appear anywhere else in the U.S. code but it precisely captures the three ways that you got videotapes in 1988 and it starts with rental, which was the single most obvious way you would get videotapes in 1988.

1:07:55Paul D. Clement And then if you carry through to the definition of a videotape service provider, you see the same triad. You see selling videotapes, renting videotapes 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.

1:08:14John G. Roberts, Jr. Thank you, counsel. Justice Thomas? Justice Alito?

1:08:17Samuel A. Alito, Jr. What 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. 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).

1:08:58Samuel A. Alito, Jr. 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?

1:09:54Paul 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 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.

1:10:15Paul D. Clement 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 am most -- not most naturally reading consumer but I think I'm most naturally reading all 15 words.

1:10:35Paul D. Clement 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.

1:11:03Paul D. Clement 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 talking about the (a)(4) definition. But the (a)(4) definition is 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.

1:11:32Paul D. Clement 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 videotape service provider, which, of course, is a provider of prerecorded video cassette tapes or similar audiovisual materials.

1:11:49Samuel A. Alito, Jr. Right, but --

1:11:49Paul D. Clement But that would be hopelessly awkward and redundant. And it -- it just underscores that if Congress had done both it would have been redundant, and I think there was a perfectly good reason it left goods or services unmodified.

1:12:00Samuel A. Alito, Jr. Well, the statute means what the statute means, regardless 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.

1:12:39Samuel A. Alito, Jr. 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.

1:12:50Paul 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 100,000 subscribers to 247Sports.com that he wants to represent in a class action. Now, not great at math but $2500 per plaintiff in a class action that includes at least 100,000 people, I think, is $250 million of liability in this case alone.

1:13:20Paul D. Clement 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.

1:13:45Samuel A. Alito, Jr. All right, thank you.

1:13:46John G. Roberts, Jr. Justice Sotomayor?

1:13:48Sonia 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 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.

1:14:31Sonia Sotomayor 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.

1:14:58Paul D. Clement So I do think there is a fundamental difference between having PII without a consumer and having a consumer who has no PII. Now as we point out in our brief --

1:15:07Sonia Sotomayor No, a consumer will have PII because you're going to disclose PII. You're only liable --

1:15:14Paul D. Clement No. No --

1:15:15Sonia Sotomayor What you're saying that it's different than if the consumer doesn't create it at that moment.

1:15:23Paul D. Clement I -- no, what I'm saying is actually under his view as I understand it, if you go into the Blockbuster, is 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.

1:15:42Paul D. Clement And I think that is far more anomalous --

1:15:44Sonia Sotomayor All right. Then why? When you finally buy something, it is what you buy, that video viewing, that is being protected.

1:15:54Paul D. Clement Well you don't have to buy anything. And that's another anomaly. See, under the statute Congress wrote, if you walked into 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 respectfully suggest consumers 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 ten years later, they subscribed to the local newspaper, they signed up for a free e-mail.

1:16:35Paul D. Clement 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.

1:16:51Sonia Sotomayor Thank you.

1:16:52John G. Roberts, Jr. Justice Kagan?

1:16:53Elena 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?

1:17:08Paul D. Clement So I think that it means something different from means. I think it does set a floor. And that's why I don't think the definition of PII can do the limiting --

1:17:23Elena Kagan But 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?

1:17:44Paul D. Clement Well, it's tricky, right, because if we're going to be literal, I mean, "includes" --

1:17:48Elena Kagan I want to -- I want to know what you think.

1:17:51Paul D. Clement So --

1:17:51Elena Kagan Does it include bandanas and La-Z-Boys?

1:17:54Paul 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 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.

1:18:33Paul D. Clement And I would respectfully suggest that, you know, you could do it, and I would suppose I might even argue for it some day, 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.

1:18:50Elena Kagan Thank you.

1:18:51John G. Roberts, Jr. Justice Gorsuch?

1:18:53Neil 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?

1:19:10Paul D. Clement Ultimately, when that issue comes up, I would -- you know, in that --

1:19:12Neil Gorsuch You're going to -- you're going to -- you're going to take that position?

1:19:14Paul D. Clement I am going to take that position.

1:19:14Neil Gorsuch You'd agree with newspapers that that -- that that -- that is a distinction?

1:19:18Paul D. Clement And I might even go one further and agree with Judge Randolph that they have to be --

1:19:22Neil Gorsuch Physical.

1:19:23Paul D. Clement Physical.

1:19:23Neil Gorsuch Yeah.

1:19:23Paul D. Clement Because, you know, materials is kind of physical.

1:19:26Neil Gorsuch Thank you.

1:19:26Paul D. Clement So if you -- yeah.

1:19:28John G. Roberts, Jr. Justice Kavanaugh? Justice Barrett?

1:19:31Amy Coney Barrett Do you concede that Salazar has standing?

1:19:34Paul 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 of you, but it's -- you know, it's got this gobbledegook. And that's -- that's what's disclosed to a third party.

1:19:50Paul D. Clement And so I take it the question would be is the disclosure of gobbledegook to a third party sufficiently close to the common-law analog 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.) - so you can ignore it in the future. I don't know if you're allowed to do that, but --

1:20:27Amy Coney Barrett You raised it in the district court.

1:20:29Paul D. Clement We did raise it in the district court. And then --

1:20:31Amy Coney Barrett But then dropped it before the Sixth Circuit.

1:20:32Paul D. Clement We did. But you know the funny thing about standing arguments, you can't really drop them.

1:20:36Amy Coney Barrett Right.

1:20:37Paul 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 analog.

1:20:50Amy Coney 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?

1:21:00Paul 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 is going to use that in the lower courts to say, aha, it is personally identifiable information.

1:21:24Paul D. Clement 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.

1:21:34John G. Roberts, Jr. Justice Jackson? Thank you, counsel. Rebuttal, Mr. Hammack?

1:21:40Joshua 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-Boys 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.

1:22:09Joshua I. Hammack 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.

1:23:00Joshua I. Hammack 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 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.

1:23:27Joshua I. Hammack 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.

1:23:55Joshua I. Hammack To go to Justice Jackson's point regarding 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 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.

1:24:37Joshua I. Hammack Thank you, Mr. Chief Justice.

1:24:38John G. Roberts, Jr. Thank you, counsel. The case is submitted.