Seventh Circuit Holds: Subscribing to Any Service From a Video Provider—Even Free, Non‑Video Services—Creates “Consumer” Status Under the VPPA

Introduction

In David Vance Gardner v. MeTV, the United States Court of Appeals for the Seventh Circuit confronted a recurring, modern question under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710: who counts as a “consumer”? The case arises from MeTV’s ad-supported website where users can watch classic television programming without paying money but may optionally “sign up” by providing an email address and zip code to receive reminders, personalize content, use tools like a channel finder, post comments, and get notifications.

Plaintiffs alleged that while they were signed into Facebook in the same browser in which they watched MeTV, the site’s embedded “Meta pixel” linked their viewing activity to their Facebook accounts via Facebook’s identification number (FID), facilitating targeted advertising. They claimed MeTV disclosed their personally identifiable information (PII) without consent in violation of the VPPA. The district court dismissed, holding that because plaintiffs subscribed to informational features (schedules and newsletters) rather than to video services, they were not VPPA “consumers.”

Writing for a unanimous panel, Judge Easterbrook reversed. The Seventh Circuit held that the VPPA’s text makes a person a “consumer” if they are a “subscriber of goods or services from a video tape service provider,” whether or not those goods or services are themselves video-related and whether or not money changes hands. On that reading, plaintiffs who exchanged their data (email and zip code) for MeTV’s sign-up benefits plausibly qualify as “subscribers,” and thus as “consumers.” The court remanded for further proceedings.

Summary of the Opinion

The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1).
The court accepted that MeTV is a “video tape service provider” because the statute covers entities that sell, rent, or deliver “prerecorded video cassette tapes or similar audio visual materials,” a phrasing the court has long understood to encompass streaming.
The central holding: a person who furnishes valuable data (here, an email address and zip code) in exchange for benefits is a “subscriber,” and the statute does not require that the subscribed-to goods or services be video-related. It is enough that the goods or services come “from a video tape service provider.”
The court rejected MeTV’s argument—and the district court’s rationale—that plaintiffs subscribed only to an “information service,” not a “video service,” emphasizing the statute’s language and declining to read in a “video-only” limitation.
The Seventh Circuit aligned with the Second Circuit’s recent decision in Salazar v. NBA on the meaning of “consumer,” and noted other circuit decisions confirming that consideration can be non-monetary (data).
The court expressly did not resolve a separate question that has divided other circuits: whether merely downloading and using an app without furnishing personal information creates subscriber status.
Outcome: Reversal of the Rule 12(b)(6) dismissal and remand. The case proceeds beyond the pleading stage on the VPPA claim.

Analysis

1) Precedents Cited and Their Influence

The opinion canvasses recent appellate decisions to anchor two distinct propositions: (a) “subscriber” status does not require payment of money; data can be consideration; and (b) the VPPA’s text does not limit “consumer” status to those who subscribe to video-specific services.

Salazar v. National Basketball Association, 118 F.4th 533 (2d Cir. 2024): The Second Circuit held that a person can be a VPPA “consumer” by subscribing to non-video services offered by a video provider and that exchanging data for benefits suffices. The Seventh Circuit expressly “agree[s]” with Salazar’s textual reading of § 2710(a)(1), emphasizing that the phrase is “subscriber of goods or services from a video tape service provider,” not “subscriber of video services.”
Yershov v. Gannett Satellite Information Network, Inc., 820 F.3d 482 (1st Cir. 2016): Cited for the proposition that consideration need not be monetary; user data can be value in the “Information Age.” Yershov is among the earliest appellate decisions to recognize the exchange of data and app usage benefits as potentially constituting a subscription relationship under the VPPA.
Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015), and Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017): The panel notes that the First and Eleventh Circuits “have reached incompatible conclusions” on whether downloading/using a free app without furnishing personal information makes one a subscriber. The Seventh Circuit deliberately leaves that question for another day. It cites Ellis and Yershov as addressing the app scenario and flags Perry with a “Cf.,” signaling nuance in the Eleventh Circuit’s approach.
Thompson v. United States, No. 23-1095 (U.S. Mar. 21, 2025): Cited for the Supreme Court’s instruction that statutory “language—the only thing on which Congress and the President have agreed—controls the meaning of legislation.” The Seventh Circuit invokes Thompson to underscore its textualist method, resisting policy-driven limitations not found in the words Congress used.

2) The Court’s Legal Reasoning

Text governs, not purpose-driven glosses: The panel emphasizes that Congress’s words control, even if the statute “overshoot[s] or undershoot[s]” its purpose. The VPPA’s definition of “consumer” makes status turn on whether the person is a “renter, purchaser, or subscriber of goods or services from a video tape service provider,” not on whether the subscribed-to service is itself video content. The district court’s focus on the Act’s animating concern (video-viewing privacy) cannot justify reading a “video-services-only” limitation into a text that says “goods or services.”
Data can be consideration for a subscription: The court accepts “as a matter of common usage” that a “subscriber” gives value for services. It then holds that value need not be monetary. Email and zip code are commercially valuable; in advertising markets, more data supports enhanced targeting—worth real money. This aligns with the First, Second, and Eleventh Circuits recognizing non-monetary consideration in digital contexts.
Scope of “video tape service provider” and modern delivery: Although not contested here, the opinion reiterates that the VPPA extends to Internet streaming via the phrase “prerecorded video cassette tapes or similar audio visual materials” and the statute’s reference to “delivery,” thereby adapting the 1988 text to contemporary distribution methods.
Illustrative hypotheticals reinforce the textual reading: Judge Easterbrook notes that if a user bought a Flintstones sweatshirt or a Scooby Doo mug from MeTV’s site, they would be a “purchaser of goods from a video tape service provider” and thus a VPPA “consumer,” even though clothing is not video. Similarly, subscribing to MeTV newsletters is enough—even if videos are otherwise freely viewable—because the statute hinges on the relationship to the provider, not the nature of the particular good or service.
What the court does not decide: The panel does not resolve whether merely downloading and using an app without handing over personal information makes one a “subscriber.” Nor does it decide whether MeTV actually disclosed protected “personally identifiable information” via the Meta pixel, or whether any consent was given—issues saved for later stages.

3) Likely Impact

Broader “consumer” coverage in the Seventh Circuit: Any person who exchanges data for benefits from a video provider—such as signing up with an email and zip code for reminders, newsletters, or personalization—can be a VPPA “consumer,” even if the underlying video content is accessible without signing up and even if the subscribed-to benefits are not video services.
Increased litigation exposure for ad-supported streaming sites: Video platforms that (a) offer free content, (b) solicit sign-ups for non-video features, and (c) embed third-party tracking pixels are more likely to face VPPA claims in the Seventh Circuit. Plaintiffs can clear the “consumer” hurdle by pleading a data-for-benefits sign-up with a video provider.
Compliance implications: Providers should evaluate whether any tracking (e.g., pixels) on pages that deliver video content transmits information linking a user’s identity (or a readily linkable identifier like an FID) with specific video titles or viewing events. Where they do, obtaining clear, VPPA-compliant consent and limiting disclosures will be critical.
Inter-circuit dynamics: The Seventh Circuit’s alignment with Salazar (2d Cir.) strengthens a growing consensus that “subscriber” includes non-monetary, data-for-benefit relationships. However, the panel leaves unresolved the app-only scenario that has produced conflicting outcomes in the First and Eleventh Circuits. That narrower split remains live and may call for Supreme Court clarification in the future.
Practical effect on business models: Because user data can constitute consideration, any “free” personalization, notifications, or community features associated with a video site can trigger VPPA “consumer” status. The decision encourages providers to treat newsletter and sign-up flows with the same privacy rigor as paywalled video services.

Complex Concepts Simplified

VPPA (“Bork Act”): A privacy statute enacted in 1988 after reporters obtained Judge Robert Bork’s video rental history. It prohibits disclosure, without consent, of personally identifiable information “concerning any consumer” by a “video tape service provider.”
Video tape service provider: Any entity engaged in the business of selling, renting, or delivering prerecorded video cassette tapes “or similar audio visual materials.” Courts read “similar” and “delivery” to include Internet streaming.
Consumer: Defined as any “renter, purchaser, or subscriber of goods or services from a video tape service provider.” This case clarifies that “subscriber” includes those who exchange personal data for benefits and that the goods or services subscribed to need not be video-specific.
Personally identifiable information (PII) under the VPPA: The statute protects information that identifies a specific person as having requested or obtained specific video materials. Plaintiffs here allege that MeTV’s pixel transmitted data linking their identity (through Facebook’s ID) to particular videos viewed.
Meta (Facebook) pixel and FID: A piece of code embedded on websites that sends event data (like page views, video titles watched) to Meta. When a user is logged into Facebook, the data can be tied to that user’s account via their Facebook identification number (FID), enabling targeted advertising.
Textualism: An approach to statutory interpretation focusing on the enacted words. The court relies on textualism here, citing the Supreme Court’s recent reminder in Thompson v. United States that legislative text, not inferred purpose, controls.

Discussion of Key Issues on Remand

The Seventh Circuit addressed only the “consumer” element. On remand, the district court will likely confront questions such as:

Whether the alleged transmissions via the Meta pixel constituted a “disclosure” of PII “concerning” plaintiffs;
Whether the identifiers at issue (e.g., FID plus video titles) qualify as PII under the VPPA’s standards;
Whether plaintiffs gave sufficient consent to any disclosures embedded in MeTV’s user flows or policies.

The resolution of these issues will determine the ultimate merits of the VPPA claim.

Why This Decision Matters

It provides a clear, administrable rule in the Seventh Circuit: if a video provider solicits data in exchange for any benefits (even non-video features) and a user accepts that exchange, the user is a VPPA “consumer.”
It removes the “video-only services” limitation some defendants advocate, focusing instead on the provider’s identity (a video tape service provider) and the existence of any subscription relationship.
It harmonizes Seventh Circuit law with the Second Circuit’s recent approach, fostering cross-circuit consistency on the core definition of “consumer” while leaving the app-only issue for later.

Conclusion

Gardner v. MeTV cements a straightforward textual rule: a person who exchanges value—money or data—for benefits from a “video tape service provider” is a VPPA “consumer,” and the statute does not confine “subscriber” status to video-specific services. By reversing the district court and joining the Second Circuit’s reasoning in Salazar, the Seventh Circuit broadens VPPA coverage for users who sign up for ancillary features like newsletters, reminders, or personalization on video sites. The decision underscores that statutory text—not aspirations about legislative purpose—governs, and it sets the stage for further litigation over what counts as VPPA-protected PII and whether embedded pixels effect prohibited disclosures absent consent. For video providers operating in the Seventh Circuit, the message is clear: treat any sign-up relationship as potentially conferring VPPA “consumer” status and calibrate data flows and consent mechanisms accordingly.

Case: David Vance Gardner and Gary Merchant v. Me-TV National Limited Partnership, No. 24-1290 (7th Cir. Mar. 28, 2025) (Easterbrook, J.; Jackson-Akiwumi & Kolar, JJ.). Reversing 681 F. Supp. 3d 864 (N.D. Ill. 2023) and 2024 U.S. Dist. LEXIS 36631 (N.D. Ill. Feb. 15, 2024).