Salazar Opposes NBA Appeal of VPPA Case to Supreme Court
Plaintiff Michael Salazar opposed the NBA’s request for the U.S. Supreme Court to review a decision from the 2nd U.S. Circuit Court of Appeals that the basketball league said unfairly expanded the scope of the Video Privacy Protection Act (VPPA). Salazar, a consumer, argued that the complaint in the writ for certiorari is not the one in question anymore.
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Following the 2nd Circuit’s decision in October 2024, which widened the scope of what it meant to be a “subscriber” under the VPPA (see 2501100009), Salazar submitted amended complaints at the district court level. The NBA’s petition for a writ of certiorari, however, involves the case that the 2nd Circuit reviewed back in October.
The Salazar brief argues that the case asks "whether the unauthorized disclosure of information one intended to keep private, and which was statutorily protected from disclosure, gives rise to a concrete injury" and "whether the phrase 'goods or services from a video tape service provider,' as used in the VPPA’s definition of 'consumer,' refers to all of a videotape service provider’s goods or services or only to its audiovisual goods or services."
“While Mr. Salazar agrees that second question is important, this case is a poor vehicle for resolving it. As most relevant here, there is no final judgment, and the complaint both the district court and the Second Circuit analyzed is no longer operative,” the brief said.
The NBA asked for SCOTUS review in March, arguing the 2nd Circuit unfairly expanded VPPA’s scope (see 2503190047). The NFL, along with ad and retail groups, have since supported the NBA through filing amicus briefs (See 2505020048).
There is a circuit split on the scope of the VPPA, with the 7th Circuit siding with the 2nd Circuit in taking a broader view of the statute (see 2503310018), and the 6th Circuit taking a narrower read (see 2504030064). Some privacy lawyers expect the circuit split to tee up a Supreme Court review, while others caution this may not be the high court's biggest privacy focus (see 2504150047).