• by Wendy Davis  @wendyndavis, December 6, 2023

A privacy battle between the National Basketball Association and a sports fan who watched videos on NBA.com has reached a federal appellate court in New York, where judges could soon decide how to apply a 35-year-old video privacy to apps that allegedly embed analytics tools like the Meta Pixel.

The dispute dates to last year, when California resident Michael Salazar alleged in a class-action complaint that the National Basketball Association violated the Video Privacy Protection Act by sharing his personally identifiable viewing history at NBA.com with Meta Platforms' Facebook via the Meta Pixel -- an analytics code that automatically transmits information about website visitors.

That privacy law, which was passed in 1988 after a Maryland newspaper obtained Supreme Court nominee Robert Bork's video rental records, prohibits video rental companies from disclosing personally identifiable information about subscribers' viewing history without their permission. Though the law predates the modern internet, judges across the country have interpreted it to cover streaming video services.

In August, U.S. District Court Judge Jennifer Rochon in the Southern District of New York dismissed Salazar's complaint, ruling that he wasn't a “subscriber” to NBA.com, because that site didn't require that users register before watching videos.

Salazar then appealed to the 2nd Circuit Court of Appeals, which ordered expedited briefing in the case.

Salazar argued in papers filed in late October that he should have been considered a “subscriber” to NBA.com because he had signed up for an online NBA newsletter that had links to videos on NBA.com.

“Put simply, the newsletter makes the NBA’s videos easier to find and more convenient to view. Accordingly, it gives subscribers enhanced access to that video content,” his attorneys argued.

On Tuesday, the NBA asked the appellate court to reject Salazar's argument.

“Mere receipt of emails containing links to the separate NBA.com website did not render him a 'subscriber' to the videos on that website, which he accessed on equal footing with other website visitors who did not sign up for email newsletters,” the organization contends in its written filing.

“None of the commonly understood indicia of a 'subscriber' relationship, vis-à-vis video content, are meaningfully present here,” the association added.

Salazar is one of numerous web users to recently sue publishers for allegedly violating the video privacy law by embedding outside companies' analytics code on their sites. Trial judges have so far issued mixed rulings in those cases.

Last year, a district court judge in Atlanta considered a matter similar to Salazar's, but reached a different decision.

In that case, U.S. District Court Judge Thomas Thrash, Jr. refused to throw out a complaint by Debra Lebakken, who alleged that online health publisher WebMD disclosed visitors' video-viewing information to Facebook. Lebakken alleged that she “subscribed” to WebMD by signing up for its free e-newsletter.

WebMD unsuccessfully argued to Thrash that a federal appeals court previously ruled in a separate video privacy lawsuit that people who download a free mobile app aren't “subscribers.”

But Thrash wrote that Lebakken didn't just download an app, but also “exchanged her email address to receive the WebMD e-newsletter and ... created her own WebMD account.”