• by Wendy Davis  @wendyndavis, December 30, 2024

The National Basketball Association says it will ask the Supreme Court to review a decision reviving claims that the group violated a 36-year-old video privacy law by embedding Meta Platforms' analytics tool, the Meta Pixel, on NBA.com.

The group disclosed its plans last week, when it asked Justice Sonia Sotomayor to extend the deadline for seeking review from mid-January to March 14. The organization suggested it will argue that online tracking doesn't cause the kind of injury that warrants a lawsuit in federal court.

The request for an extension comes in a battle dating to 2022, when California resident Michael Salazar alleged in a class-action complaint that the National Basketball Association violated the federal video privacy law by sharing his personally identifiable viewing history at NBA.com with Facebook, via the Meta Pixel -- analytics code that automatically transmits information about website visitors.

The Video Privacy Protection Act (VPPA), passed in 1988 after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper, prohibits video rental companies from disclosing personally identifiable information about consumers' viewing history without their permission. 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 services -- including whether people who watch free videos are "consumers" -- are still being debated in trial courts.

U.S. District Court Judge Jennifer Rochon in the Southern District of New York dismissed Salazar's complaint last year, ruling that he wasn't a “subscriber” to NBA.com, because that site didn't require registration to access videos. The video privacy statute defines “consumer” as a “renter, purchaser, or subscriber” of services from a video tape service provider.

Salazar appealed, arguing that he should be considered a “subscriber” because he had signed up for an online NBA newsletter that offered links to videos on NBA.com.

A three-judge panel of the 2nd Circuit Court of Appeals agreed with Salazar and reinstated his lawsuit, ruling that the word "consumer" should be interpreted to mean web users who provide certain personal information in exchange for content.

“The VPPA is no dinosaur statute,” Circuit Judge Beth Robinson wrote in an opinion joined by Judges Reena Raggi and Eunice Lee.

“Congress deployed broad language in defining the term 'consumer,' showing it did not intend for the VPPA to gather dust next to our VHS tapes,” the judges added.

That ruling, if upheld, could affect a broad array of lawsuits against web companies that offer streaming video. Already, a different federal judge in New York has indicated he will require NBC to face a similar lawsuit, due to the ruling against the National Basketball Association.

The sporting association says in its request for a deadline extension that it the 2nd Circuit's decision conflicts with Supreme Court decisions about Salazar's “standing” to sue -- meaning whether he suffered a concrete harm.