• by Wendy Davis , September 2, 2025

The National Basketball Association is pressing the Supreme Court to take up a battle over how a Reagan-era video privacy law should apply to companies that offer streaming video.

"The Court should grant review without delay," the sports association writes in a supplemental brief filed late last week.

The group argues in its new papers that circuit courts are increasingly divided about how to interpret the 1988 Video Privacy Protection Act, which prohibits "video tape service providers" from disclosing personally identifiable information about consumers' viewing history without their permission. 

That split in the circuit courts shows that the question at the heart of the suit against the National Basketball Association "is both important and outcome-determinative," the group writes.

The organization is urging the court to intervene in a lawsuit brought by California resident Michael Salazar, who claimed in a class-action complaint that the group 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.

Congress passed the privacy law in 1988, after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper.

In the last three years, web users have brought dozens of class-action complaints against streaming services, magazines, newspapers and others over alleged violations of that law.

Those cases have raised questions about how to interpret the law's language in the era of streaming video. One of the major points of contention concern how the law applies to online sites that include online videos, but aren't in the business of renting videos the way, say, Blockbuster was in its heyday.

The statute itself defines “consumer” as a “renter, purchaser, or subscriber” of services from a video tape service provider.

In Salazar's suit against the National Basketball Association, U.S. District Court Judge Jennifer Rochon in the Southern District of New York concluded that NBA.com wasn't covered by the video privacy law because it didn't require registration to access videos.

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.”

In March, the National Basketball Association asked the Supreme Court to hear an appeal of that ruling.

Since then, two other circuit courts -- the 6th Circuit and D.C. Circuit -- have interpreted the privacy law's definitions more narrowly.

Last month, the D.C. Circuit Court of Appeals upheld the dismissal of a lawsuit by a web user who sued the Washington Examiner for allegedly transmitting information about the videos she views online to Meta, via its pixel. The plaintiff in that case, Nicole Pileggi, said she was a consumer because she subscribed to the paper's online newsletter.

The D.C. Circuit disagreed with Pileggi, ruling that web users can only sue under the video privacy law if they "purchase, rent, or subscribe to a video service," and if the service discloses information about the videos that were purchased, rented or accessed via subscription.

In April, a panel of the 6th Circuit Court of Appeals ruled 2-1 that people are only “consumers” under the video privacy law if they subscribe to goods or services that are “in the nature of” audio-visual material.

The Interactive Advertising Bureau and National Retail Federation are backing the National Basketball Association's request for intervention by the Supreme Court, arguing in a friend-of-the-court brief that recent video privacy lawsuits pose “a particular threat” to retail and advertising.

They wrote that the 2nd Circuit opinion "exposes retailers, publishers, and advertisers alike to massive liability for simply engaging in commonplace advertising practices."

The groups added: "These practices, including targeted advertising through data-tracking software like Meta Pixels and posting videos on websites, were never contemplated by the Congress that enacted the [Video Privacy Protection Act] to protect video-rental records."