• by Wendy Davis  @wendyndavis, July 1, 2025

Attorneys for California resident Michael Salazar are urging the Supreme Court to leave in place a ruling that revived his video privacy claims against the National Basketball Association.

In papers filed Monday, counsel for Salazar says that even though his dispute with the sports organization raises an "important" question about the scope of the video privacy law, it would be premature for the Supreme Court to get involved in the case, which is still at a relatively early procedural stage.

The papers come in response to a petition for review by the National Basketball Association, which argues that the lower court's ruling in Salazar's favor “strikes at the core of the targeted advertising model.

The dispute dates to 2022, when Salazar claimed in a class-action complaint that the sports organization violated the Video Privacy Protection Act by allegedly 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. 

In the last three years, web users have brought numerous class-action complaints against streaming services, magazines, newspapers and others over alleged violations of that 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 Salazar's lawsuit, ruling that "web users who provide personal information in exchange for content are consumers.”

“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,” Circuit Judge Beth Robinson wrote in an opinion joined by Judges Reena Raggi and Eunice Lee.

The National Basketball Association recently petitioned the Supreme Court to intervene, and the Interactive Advertising Bureau and National Retail Federation backed that request, arguing in a friend-of-the-court brief that the wave of recent video privacy lawsuits 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.”

Salazar's lawyers say in their new court papers that questions regarding the scope of the video privacy law are "important," but argue that his case is a "poor vehicle" for the Supreme Court to decide how to interpret the 1988 law -- largely because Salazar's allegations against the sports group haven't yet been litigated.

Separately, after the 2nd Circuit issued its ruling in favor of Salazr, a different court -- the 6th Circuit Court of Appeals -- reached the opposite conclusion in a different lawsuit against Paramount.

That lawsuit was also brought by Salazar, who alleged that he subscribed to Paramount's online newsletter 247Sports.com, and also viewed videos on 247Sports.com while logged in to his Facebook account. He claimed that 247Sports.com sent his identifiable video-viewing information to Meta via its analytics tool, the Meta Pixel, which was embedded on the site.

The 6th Circuit said in a ruling issued in April that people are only “consumers” for purposes of the video privacy law if they subscribe to goods or services that are “in the nature of” audio-visual material.

The panel went on to write that Salazar's allegations wouldn't establish that 247Sports.com's newsletter was in itself audio-visual material. Therefore Salazar's allegations, if proven true, wouldn't show that he “subscribed” to a video tape service provider, according to the 6th Circuit.

It's not yet known whether Salazar will ask the Supreme Court to take up that matter.