• by Wendy Davis , July 24, 2025

An Illinois resident who watched videos on a website run by the National Football League is asking a federal appellate court to revisit its recent decision shutting down his video privacy lawsuit against the sports organization.

That ruling was "a deeply misguided decision that, at best, rewrites and, at worst, repeals a federal statute," attorneys for Brandon Hughes say this week in papers filed with the 2nd Circuit Court of Appeals in New York.

"It is time for some video-store wisdom: Be kind, rewind," Hughes' counsel writes in a motion asking the court to rethink the decision.

Hughes' motion comes in a dispute over the interpretation of the federal Video Privacy Protection Act -- a Reagan-era law that prohibits "video tape service providers" from disclosing consumers' personally identifiable video-viewing history, without their consent.

In the last three years, web users have accused newspapers, television companies and other streaming video providers of violating that law by embedding analytics tools like the Meta Pixel on their websites. Judges throughout the country have issued contradictory decisions about whether these lawsuits can move forward.

Hughes' complaint, filed in 2023, alleged that NFL.com violated the video privacy law by allegedly disclosing online users Facebook IDs and the videos they viewed to Meta via its Pixel -- analytics code that automatically transmits information about website visitors.

U.S. District Court Judge Jennifer Rochon in New York dismissed the suit last year, ruling that even if the allegations in his complaint were true, they wouldn't establish that NFL.com was a "video tape service provider."

Rochon specifically said companies could only be "video tape service providers" if they offered prerecorded videos, adding that Hughes didn't allege that he viewed prerecorded content on NFL.com.

Hughes then appealed to the 2nd Circuit, which also ruled in favor of the National Football League, but for other reasons. A three-judge panel of that court ruled that the data allegedly sent to Meta about Hughes was not "personally identifiable" because it wouldn't allow an "ordinary person" to identify Hughes and learn which videos he watched.

The judges noted that the 2nd Circuit recently came to the same conclusion in a similar lawsuit brought against Flipps Media TrillerTV by Detrina Solomon.

The appellate panel added that the two rulings "effectively shut the door" to all Video Privacy Protection Act claims based on disclosures to Meta via the pixel.

Hughes' counsel argues in the motion for a new hearing both that the "ordinary person" language is not in the text of the video privacy law, and that the standard itself is wrong.

Instead of determining whether an "ordinary person" could identify someone from a Facebook ID, judges should figure out whether the recipient of the information -- in this case, Facebook -- could identify someone by their Facebook ID, counsel argues.

"If as here the provider knows the recipient will understand the information conveyed as linking an individual to his video-watching history, it knowingly disclosed 'personally identifiable information,' no matter what an 'ordinary person' might have understood if, counterfactually, he received it too," counsel writes.

Attorneys for Solomon have also asked the 2nd Circuit to reconsider its ruling in favor TrillerTV.

Last year, the same appellate court issued a ruling that took a much broader interpretation of the Video Privacy Protection Act.

In that matter, the judges revived a 2022 complaint by California resident Michael Salazar, who alleged that the National Basketball Association wrongly shared his personally identifiable viewing history at NBA.com with Facebook, via the Meta Pixel.

The sports organization argued that Salazar wasn't a "consumer" because he hadn't subscribed to NBA.com.

A trial judge agreed with the National Basketball Association, but the 2nd Circuit reversed and reinstated the complaint, ruling that the word "consumer" includes web users who provide certain personal information in exchange for content. In Salazar's case, he signed up for an online NBA newsletter that offered links to videos on NBA.com.

“Although Salazar does not allege that he paid the NBA money, he does allege that he provided the NBA with his personal information when he signed up for the newsletter,” Circuit Judge Beth Robinson wrote in an opinion joined by Judges Reena Raggi and Eunice LeeRobinson.

The National Basketball Association recently asked the Supreme Court to intervene in the case. That request -- backed by the Chamber of Commerce -- is currently pending.