Salazar: Recent DC Circuit Decision Provides Reason for SCOTUS to Drop Video Privacy Case
The U.S. Court of Appeals for the D.C. Circuit's dismissal of a Video Privacy Protection Act (VPPA) case Tuesday means there is a circuit split on the definition of consumer under the federal statute, but the 9th U.S. Circuit Court will likely break that split, said plaintiff Michael Salazar in a supplemental brief to the U.S. Supreme Court Wednesday. Because of this, Salazar said the high court should deny the NBA's petition in Salazar v. NBA to review a decision from the 2nd U.S. Court of Appeals that affirmed Salazar but that the basketball league said unfairly expanded the scope of the 1988 VPPA (see 2503190047).
Sign up for a free preview to unlock the rest of this article
Privacy Daily provides accurate coverage of newsworthy developments in data protection legislation, regulation, litigation, and enforcement for privacy professionals responsible for ensuring effective organizational data privacy compliance.
In Tuesday's ruling in Pileggi v. Washington Newspaper, the D.C. Circuit judges also said the VPPA seems outdated, and suggested that consumer was not the only term in the statute that should be narrowly defined (see 2508120030).
"Yesterday, the D.C. Circuit weighed in on both questions fairly presented in this case," Salazar said. "As to the first question -- concerning whether the unauthorized disclosure of information one intended to keep private, and which was statutorily protected from disclosure, gives rise to a concrete injury-- the D.C. Circuit joined every other circuit to address the issue and held it does." Given this, "there remains no basis to grant the NBA’s petition for certiorari on the first question presented," he added.
"As to the second question -- concerning 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 video tape service provider’s goods or services or only to its audiovisual goods or services -- the D.C. Circuit joined the Sixth in choosing the latter, wholly atextual, interpretation," Salazar said. "But, like the Sixth Circuit, the D.C. Circuit openly rewrote the statute to reach this result."
In addition, the D.C. Circuit allegedly erred when interpreting Congress' original intent behind the VPPA, Salazar argued. Despite the circuit split, "this case has vehicle problems," he said, so the Supreme Court should deny the petition for cert.
The NBA has previously argued the Supreme Court is the "best vehicle" for settling a circuit split (see 2507160026). The NFL, along with ad and retail groups, have supported the NBA's position with amicus briefs since it filed for cert at the high court (see 2505020048).