• by Wendy Davis  @wendyndavis, Yesterday

The Interactive Advertising Bureau and other organizations are asking the Supreme Court to rule that web companies don't violate a Reagan-era video privacy law by embedding online tracking technology on their websites.

“Retailers, publishers, and advertisers cannot be expected to anticipate that engaging in common online advertising practices could trigger liability under a statute written before the internet existed,” the Interactive Advertising Bureau and National Retail Federation write in a friend-of-the-court brief filed Friday with the Supreme Court.

They are urging the court to hear the National Basketball Association's appeal of a lower-court decision reviving a lawsuit by California resident Michael Salazar, who claimed that the sports group violated the Video Privacy Protection Act 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 by Congress 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. 

Since 2022, plaintiffs have brought numerous class-action complaints alleging violations of the video privacy law.

Though the statute predates the modern internet, judges have said the law covers streaming video services. But other questions about the law's applicability to online services -- including whether people who watch free videos are "consumers," and what information is “personally identifiable” -- are currently being debated in courts around the country.

U.S. District Court Judge Jennifer Rochon in the Southern District of New York dismissed Salazar's complaint in 2023, ruling that he wasn't a “subscriber” to NBA.com because the 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 was covered by the law 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 reinstated the lawsuit, ruling that "web users who provide personal information in exchange for content are consumers.”

“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.

The National Basketball Association recently asked the Supreme Court to intervene, arguing that the 2nd Circuit decision “strikes at the core of the targeted advertising model.”

“The Court’s intervention is needed to prevent the Second Circuit’s decision from turning a statute about videotape rentals into the end of Internet advertising,” the group wrote in a petition seeking review.

The Interactive Advertising Bureau and National Retail Federation are backing that request.

They argue in their friend-of-the-court brief that the wave of recent lawsuits claiming violations of the video privacy law pose “a particular threat” to retail and advertising.

“Many retailers, publishers, and advertisers utilize targeted advertising and multimedia video content,” the groups write. “This is especially true for small businesses, which use targeted advertising as a cost-effective way to get their products in front of interested buyers. Small businesses would struggle to achieve the same results without data tracking and sharing because they lack the advertising budgets of larger retailers, who could always employ more traditional (and expensive) advertising methods.”

The groups also say the video privacy act is “outdated,” and argue that subjecting web companies that use tracking technology to liability under the law violates their right to due process.

“Repurposing outdated statutes, like the VPPA, denies retailers, publishers, and advertisers fair notice of what conduct may be considered unlawful,” they argue. “Congress neither intended the VPPA to serve as a comprehensive privacy law nor could have envisioned that the law would regulate online advertising.”

The National Football League also asked the Supreme Court to intervene. The organization argued in a separate friend-of-the-court that Salazar's battle with the National Basketball Association has “broad ramifications for online content providers,” including other sports leagues.

“The recent onslaught of VPPA cases seeks to transform a statute designed to prohibit the public disclosure of customers’ video rental histories by brick-and-mortar stores into a sweeping tool for regulating routine data transfers that are widely used by online content providers to facilitate Internet-based advertising and that contribute significantly to the amount of free video content available on the Internet,” the organization writes.

Salazar is expected to respond to the arguments by July 1.