NBA Seeks Supreme Court Review of Video Privacy Protection Act Case

“The Second Circuit’s ruling threatens to blow open the federal courthouse doors to all manner of lawsuits over trivialities, all while jeopardizing the data-use practices that make so much of the Internet free, accessible, and useful to consumers,” said the NBA petition.

In Salazar v. NBA, plaintiff Michael Salazar alleged that after he registered for a free NBA newsletter, the league violated the VPPA by disclosing without consent his personal information to Facebook, including videos he watched on the website. Salazar argued that he was a subscriber in his original complaint, since he had signed up for a newsletter from the association, even though said subscription did not give him special access to the videos on the NBA website. The NBA, however, argued in its motion to dismiss the case that since Salazar failed to allege actual injury, his claim has no standing under VPPA. The U.S. District Court of Southern New York sided with the NBA, dismissing the case in August 2023, and Salazar appealed. The 2nd Circuit agreed with Salazar in October 2024, which privacy lawyers said broadened the definition of what a ‘consumer’ can be and opening the door to increased litigation under the act (see 2501100009).

In the petition, the NBA presents two questions. The first asks which courts got it right in terms of the injury that must be alleged in order to have standing to bring a case under the VPPA: the 3rd, 7th, 10th and 11th U.S. Circuit Courts of Appeal have held that a consumer's information must have been publicly revealed, while the 2nd Circuit recently ruled that the consumer's information only had to be disclosed without consent to any third party in order for there to be VPPA standing. The other question presented is “whether the VPPA bars a business from disclosing information about consumers who do not subscribe to its audiovisual goods or services.”

A response by the Supreme Court is due by April 17.