• by Wendy Davis , Yesterday

The Supreme Court on Monday declined to intervene in two separate disputes over how a Reagan-era privacy law applies to streaming video.

In one case, a panel of the 2nd Circuit Court of Appeals sided with TrillerTV and upheld a ruling dismissing privacy claims against the company, which allegedly shared video-viewing data with Meta Platforms via its analytics pixel. But in the other, a different panel of the same circuit court restored video privacy claims against the National Basketball Association, which also allegedly shared video viewing data with Meta.

The Supreme Court didn't give a reason for the move, which left both rulings on the books.

Both disputes deal with alleged violations of the 1988 Video Privacy Protection Act, which prohibits video providers from disclosing consumers' personally identifiable video-viewing history without their consent. In the last three years, numerous streaming video viewers have sued newspapers, television companies and other companies for allegedly violating that law by embedding analytics tools like the Meta Pixel on their websites.

One of the matters rejected Monday stemmed from a lawsuit by California resident Michael Salazar, who claimed that the National Basketball Association violated the video privacy law by allegedly sharing data about his video-viewing with Meta Platforms, via its analytics pixel.

A three-judge panel of the 2nd Circuit Court of Appeals said in that matter that the video privacy law should be interpreted broadly, with Circuit Judge Beth Robinson writing that Congress didn't intend for the decades-old statute "to gather dust next to our VHS tapes."

The National Basketball Association had argued that Salazar wasn't a "consumer" for purposes of the video privacy law because he subscribed to a free newsletter. The appellate judges disagreed, writing that people who exchange data for content are consumers.

Two months ago, a trial judge threw out Salazar's lawsuit for a different reason; he is now appealing that decision to the 2nd Circuit.

Despite those recent developments, last week the National Basketball Association urged the Supreme Court to hear the appeal anyway, arguing that it's "critically important" for the court to decide how to interpret the 37-year-old statute.

Earlier this year, the organization argued to the Supreme Court that the 2nd Circuit panel's decision “strikes at the core of the targeted advertising model.”

The Interactive Advertising Bureau and National Retail Federation backed the sports group's request for an appeal, writing in a friend-of-the-court brief that the video privacy act is “outdated,” and that imposing liability on web companies that use tracking technology violates their right to due process.

The other case rejected Monday was brought by plaintiff Detrina Solomon, a subscriber to TrillerVerzPass, and Flipps Media's TrillerTV, who alleged in a class-action complaint that the company transmitted information about the videos she viewed -- along with her Facebook ID -- to Meta Platforms.

A trial judge dismissed Solomon's claims and the 2nd Circuit panel refused to revive them, ruling the data allegedly transmitted to Meta was not "personally identifiable" because it wouldn't allow an "ordinary person" to identify a consumer's video-watching history.

In August, Solomon petitioned the Supreme Court to intervene, arguing that the case would give the justices an opportunity to interpret the phrase "personally identifiable information."

"As internet technology makes it easier than ever for large tech companies to obtain more data about ordinary Americans, this Court should spell out when those disclosing such information may do so without fear of liability," Solomon's counsel wrote.

TrillerTV opposed that request, arguing that questions about the statute are "of limited and diminishing significance" due to recent changes in business practices.

"In response to the slew of class action suits, online video content providers are now implementing consent forms," the company argued, adding that because the video privacy law has a two-year statute of limitations, "consent forms may soon moot this issue entirely."

The Supreme Court could still decide to wrestle with the Video Privacy Protection Act in the near future, given that other circuit courts continue to issue rulings interpreting the law. In fact, Salazar recently petitioned the court to intervene in a separate battle with Paramount. He alleged in that matter that the online newsletter 247Sports.com sent his video-viewing information to Meta via its pixel.

A trial judge dismissed the complaint, and a divided 6th Circuit Court of Appeals panel refused to reinstate it. That court said in a 2-1 ruling that newsletter subscribers aren't "consumers" for purposes of the video privacy law. The majority specifically held that plaintiffs in video privacy cases are only “consumers” if they subscribe to goods or services akin to audio-visual material.

In October, Salazar's counsel urged the Supreme Court to hear his appeal. Paramount is expected to respond by December 15.