Watching while watched

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NICK EICHER, HOST: It’s The World and Everything in It from WORLD Radio, celebrating 15 years. Today is Monday the 2nd of November.

Thanks for making us part of your morning routine. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

REAGAN ARCHIVE: President Reagan announces Robert Bork’s nomination to the Supreme Court.

This was 1987. President Reagan choosing a nominee for the Supreme Court.

Opposition came almost immediately.

KENNEDY ARCHIVE: “Robert Bork’s America…” [Excerpt from July 1 floor speech.]

EICHER: Outside groups got involved, enlisting celebrities like movie star Gregory Peck.

PECK COMMERCIAL

REICHARD: The opposition threw everything it had at Bork. But in the middle of the confirmation fight, someone crossed a line.

EICHER: A reporter for a Washington newspaper got hold of Bork’s video-rental records. A list of 146 movies he and his family had rented.

REICHARD: Nothing scandalous in the list. But the fact that someone could obtain those records without permission caused an uproar in Congress.

EICHER: Even senators who opposed Bork’s nomination condemned the invasion of privacy.

BIDEN ANNOUNCES NEGATIVE COMMITTEE VOTE

Bork’s nomination ultimately did fail. But the privacy controversy produced something lasting.

REICHARD: That’s right, one year later in 1988, Congress passed the Video Privacy Protection Act. V-P-P-A.

It prohibited video-rental businesses from disclosing customers’ viewing records without consent, subject to limited exceptions.

EICHER: Now, fast-forward almost four decades.

Michael Salazar signed up for a free email newsletter from 24-7-Sports. That’s a website owned by Paramount Global. He also watched videos on the site while he was logged into Facebook.

He says the site secretly shared his identity and his viewing history with Facebook even though he’d not given consent. So he sued Paramount, alleging violation of the V-P-P-A.

REICHARD: But there’s a catch: Salazar subscribed to a newsletter, not a video service.

Lower courts said that mattered and dismissed the case. That law didn’t fit these facts.

And at the Supreme Court, Paramount’s lawyer Paul Clement argued that Congress meant exactly what it wrote: to protect video customers, not every person who just happens to watch a video online.

Clement said Salazar’s lawyers are trying to make an old law solve a new problem.

CLEMENT: For years, the statute worked as designed. Personal protection of…information of video consumers was protected, and there was virtually no litigation under this statute. Then, however, the plaintiffs' class action bar discovered the VPPA and its statutory and punitive damages.

EICHER: For the other side opposed to disclosure of personal info, Salazar’s lawyer, Joshua Hammack.

HAMMACK: 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.

Tracking pixels. These are tiny bits of code embedded in websites. They tell marketers the pages you visit and the videos you watch. If that information gets linked to your identity, it allows whoever has it to build a detailed picture of your online activity …

HAMMACK: … including the personally identifiable information specifically defined in this statute.

REICHARD: A kind of legal jiu-jitsu followed, with the justices coming up with some unlikely hypotheticals.

Justice Samuel Alito envisioned this one:

ALITO: Let’s say 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. 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…I would just be playing games if I said that, wouldn't I?

Not necessarily, Hammack countered. A business can sell several kinds of products. And he came up with an even weirder purchase:

HAMMACK: 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.

EICHER: Making the point that businesses sell all kinds of things. So which consumer does the law actually protect?

REICHARD: Clement warned that Salazar’s interpretation would sweep in almost any business that puts videos on its website.

Chief Justice John Roberts wasn’t buying into the easy examples.

ROBERTS: 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.

CLEMENT: Well, it's sort of my job to focus on the easy hypotheticals. (Laughter.) But I think, if you—

ROBERTS: I would think your job is to focus on the hard ones -­ (Laughter) --at least from our point of view.

Justice Elena Kagan came at it from another angle. Suppose a judge watched some questionable sports videos online…

KAGAN: 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.

Clement tried to reassure her:

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…maybe, like, watching, you know, Chicago Bears films is embarrassing in certain parts of the country….The point is, though, it shouldn't turn on whether you also subscribed to a free online newsletter, a free email newsletter.

EICHER: Levity aside, the serious question is whether a law written for video rental stores applies to the way websites share personal information now.

Justice Brett Kavanaugh wondered if that would turn an old privacy law into something never anticipated at the time: internet ads.

Justice Kagan offered a solution:

KAGAN: Well, this statutory language, you know, it is relatively clear ... .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.

REICHARD: Clement was skeptical it works quite that way.

CLEMENT: I'm just not sure the consent is going to be easy as you imagine.

And therein’s the tension. Internet companies depend upon targeted ads for all that “free” service we get. And we consumers might never know who is watching what we are watching.

So the justices have to decide how far a privacy law from the age of video rental stores goes in this digital age. Or, Congress could just write better, updated laws.

EICHER: Alright this last case today turns on two rounds of ammunition.

A man named Kendrick Jarrett Beaird pleaded guilty to possessing a firearm as a convicted felon. His criminal history was long; here, police found him with a Glock pistol and a magazine that could hold 17 rounds.

REICHARD: And that number is important, because a tougher penalty attaches when a semiautomatic firearm can accept a large-capacity magazine.

EICHER: Here’s the trouble, though. The federal guidelines don’t say how large “large capacity” is.

Accompanying commentary says more than 15 rounds is large capacity.

The judge relied on that explanation and sentenced Beaird to six years in prison.

REICHARD: But Beaird argues that the explanation ought not carry the same authority as the guideline itself.

You can think of it like this: Who gets the final word on what the rules mean? The people who write them, or the judges who apply them?

EICHER: Justice Ketanji Brown Jackson once served on the Sentencing Commission. She said the guidelines and the explainers go together.

JACKSON: And I think we sort of have a fundamental misunderstanding of how the manual works because the guidelines and commentary are actually inextricably linked. And what I mean by that is that sentencing judges use the Guidelines Manual to do what is essentially a calculation. It's kind of like math…

But if the Supreme Court changes how judges use those explanations, then what happens to sentences that are already imposed? Justice Alito brought up a 1993 decision that said the commentary is binding unless it meets certain exceptions:

ALITO: Mr. Feigin, what would be the practical consequences of overruling Stinson? I'm told that there were 66,000 defendants sentenced in federal courts, federal district courts, in 2025. Do you have an estimate of how many of those sentences relied on commentary and would have to be done over?

The government’s lawyer didn’t have a number, but he said many sentences would remain valid.

Justice Sonia Sotomayor worried that without commentary, judges would reach different conclusions and thereby undermine consistency in sentencing.

REICHARD: The Court also appointed a lawyer to defend the way things are done now. Here’s Anthony Dick to make that case:

DICK: It is emphatically the province of the judiciary to say what the law is, but the advisory sentencing guidelines are not the law. They are advisory.

He argues the sentencing guidelines are useful for judges to consider, but they are responsible to interpret legal texts independently, not forced to impose a certain sentence.

For Beaird, the dispute revolves around a magazine holding 17 rounds instead of 15, a difference that contributed to a longer sentence. For the federal courts, a decision here could change how judges calculate the recommended prison sentences for thousands of criminal defendants.

And that’s this week’s Legal Docket.

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