Ad, Retail and Football Groups Root for NBA's Supreme Court Appeal in VPPA Case
Two amicus briefs were filed in the U.S. Supreme Court on Friday in support of the NBA in a Video Privacy Protection Act case, including one from the NFL and the other a joint amicus brief from the National Retail Federation (NRF) and Interactive Advertising Bureau (IAB). The briefs asked the Supreme Court to grant cert in NBA v. Salazar and reverse the 2nd U.S. Circuit Court of Appeals' ruling.
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The retail and marketing groups allege the 1988 Act should not be expanded to cover modern technologies, echoing the NBA's claim that the 2nd U.S. Circuit Court of Appeals' decision in October unfairly expanded the statute’s scope.
A broad interpretation of the VPPA “exposes retailers, publishers, and advertisers alike to massive liability for simply engaging in commonplace advertising practices,” the brief said. “These practices, including targeted advertising through data-tracking software like Meta Pixels and posting videos on websites, were never contemplated by the Congress that enacted the VPPA to protect video-rental records.”
“For years, the plaintiffs’ bar has utilized similarly outdated statutes, like the Telephone Consumer Protection Act and the California Invasion of Privacy Act, to target modern technologies,” said the NRF and IAB. “As current VPPA jurisprudence stands, retailers, publishers, and advertisers could face inconsistent judgments, forum shopping by plaintiffs, and severe penalties based not on any wrongdoing, but instead on where consumers access their websites.”
The NFL disagreed with expanding the scope of VPPA, but also took issue with some recent interpretations of what it means to be a "consumer" under the Act. "Plaintiffs have argued that, as long as they purchase or subscribe to some good or service from the website’s operator -- even if that good or service had nothing to do with audiovisual content -- they are 'consumer[s]' within the meaning of the VPPA and authorized to sue for a minimum of $2,500 in statutory damages per plaintiff," the football league's brief said. The split decisions in recent circuit court rulings make "this case indisputably ripe for the Court’s review."
The NBA filed a petition for a writ of certiorari on March 14 (see 2503190047), asking the Supreme Court to review the 2nd Circuit’s ruling in NBA v. Salazar (see 2501100009). Since the NBA's appeal was filed, the 7th Circuit issued an almost identical ruling (see 2503310018), but the 6th Circuit issued a decision with a much narrower view of the Act (see 2504030064). Some privacy lawyers say the resulting circuit split tees up a review from the U.S. Supreme Court (see 2504150047).