• by Wendy Davis  @wendyndavis, January 3, 2024

A California resident is pressing a federal appeals court to restore a lawsuit claiming the National Basketball Association violated a 36-year-old federal video privacy law by embedding Meta Platforms' analytics tool, the Meta Pixel, on NBA.com.

In papers filed Tuesday with the 2nd Circuit Court of Appeals, lawyers for California's Michael Salazar reiterate their argument that he was a “subscriber” to NBA.com, and therefore should have been able to proceed with his class-action complaint against the association.

Whether Salazar is considered a “subscriber” is key to his claims, given that the federal Video Privacy Protection Act (VPPA) prohibits video rental companies from disclosing personally identifiable information about consumers' viewing history without their permission. The 1988 law defines “consumer” as a “renter, purchaser, or subscriber” of services from a video tape service provider.

Though the law predates the modern internet, judges across the country have said the statute covers streaming video services. But other questions about the law's applicability to online video haven't been definitively resolved by the courts.

The battle dates to 2022, when 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.

Last 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 registration to access videos.

Salazar is appealing that decision to the 2nd Circuit. He contends he should be considered a “subscriber” because he had signed up for an online NBA newsletter that offered links to videos on NBA.com.

“Everyone agrees Mr. Salazar subscribes to the NBA’s newsletter,” his lawyers write in their newest papers. “And everyone agrees the NBA delivered Mr. Salazar video content...These undisputed facts resolve the appeal.”

For its part, the NBA has argued that signing up for an email newsletter isn't the same as “subscribing” to videos.

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

The U.S. Chamber of Commerce is backing the NBA in the dispute, arguing both that Salazar isn't a “subscriber,” and that his lawsuit is part of a scheme aimed at ending online ad targeting.

“Salazar’s claim is part of a broader litigation program that seeks to stretch the VPPA far beyond its intended scope, and that would -- if successful -- fundamentally transform the Internet,” the Chamber of Commerce wrote in a friend-of-the-court brief filed last month.

“Salazar and other plaintiffs are attempting to use the VPPA as a means to effectively abolish targeted advertising. If Salazar’s theory prevails, no business will be able to share potentially identifying information about video viewers with third parties without risking class action liability,” the business organization adds.

In 2022, a federal judge in Atlanta considered a lawsuit similar to Salazar's case against NBA.com, but reached a different decision.

In that matter, U.S. District Court Judge Thomas Thrash, Jr. allowed Debra Lebakken to proceed with claims that online health publisher WebMD disclosed visitors' video-viewing information to Meta Platforms. 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.”