The U.S. Court of Appeals for the Second Circuit on Tuesday revived a circumstance that accused the NBA of breaking national rules by sharing a California man’s video-watching past with NBA.com.
Michael Salazar alleges that the NBA broke the Video Privacy Protection Act (VPPA ), which was signed into law by President Ronald Reagan in 1988 after a newspaper revealed Robert Bork’s video rental history during his (ultimately unsuccessful ) confirmation hearings. It makes it illegal for a video tape service provider to knowingly disclose a consumer’s personal information. According to U.S. District Judge Jennifer L. Rochon, Salazar’s case was dismissed last year on the grounds that he was n’t a consumer in the meaning of the VPPA.

Judge Beth Robinson wrote in favor of herself and other Second Circuit Judges Reena Raggi and Eunice Lee to draw the conclusion that Salazar had legitimately argued that he was a customer because he had subscribed to NBA merchandise and service. In accordance with Robinson’s recommendations, the Second Circuit reversed Rochon’s termination and sent the case back to Rochon for further trials.
In exchange for receiving an online publication from the NBA, Robinson emphasized that Salazar traded for specific information as his email address, IP address ( which can capture actual location ), and biscuits associated with his system. Salazar’s story of watching movies on NBA.com, including while he was logged into his Twitter account, was even shared with Facebook, reportedly without his consent or warning
Salazar acknowledges that he did n’t pay to watch videos or receive the newsletter, but the Second Circuit argued that the Second Circuit also valued his sharing of personal information in exchange for the video watching and the newsletter. A” Facebook Pixel,” which tracks Internet traffic and is embedded on NBA.com and some blogs, is sent to Meta by Robinson. In change, Meta uses the information to better target Facebook ads for users. The judge emphasized that the” NBA receives financial compensation from this design.”
The NBA insists Salazar’s event is the equivalent of a legitimate air game. According to the group, Salazar is not regarded as a customer under the VPPA because he did n’t book, order, or listen to a good or service provided by a video service provider. The newsletters did n’t include any videos or give Salazar access to more NBA.com videos.
To accomplish this, the club asserts that the VPPA is far beyond the scope of the VPPA to simply watch a free movie on a website” with no other relationship to the company.” In response to private concerns about a movie rental store clerk disclosing Bork’s rental history to a blogger, the statute was passed. It concerns homeowners, customers and subscribers, not completely viewers.
The NBA even argues Salazar’s interpretation of the law provides absurd results. To explain, the group says it would be ridiculous that someone who “previously and unrelatedly” bought a hammer at a brick-and-mortar chain store had be protected by the VPPA if that person after watched a complimentary video on the chain’s website. The alleged analogy is that Salazar, an NBA fan, simply watched a video on NBA.com. The NBA maintains that an online newsletter is not considered an audiovisual good or service as long as that phrase is understood under the VPPA. Additionally, Salazar consented to the website’s privacy statement that says it only collects visitor data from NBA.com.

Robinson nonetheless discovered these objections to be untrue. She reasoned the term “videotape service provider” is intended to be interpreted broadly. The judge said the phrase” a general store that rents out a few movies” and not just big rental providers, like Blockbuster at its peak, applies to businesses even if they’re primarily engaged in non-audiovisual materials. The VPPA “is no dinosaur statute” and Congress did n’t intend for it to “gather dust next to our VHS tapes,” Robinson continued, adding that Salazar had repeatedly stressed that he had given up his personal information.
Robinson also flatly rejected—you might say Borked—the NBA’s hammer example.
” Take the NBA’s hypothetical: A consumer buys a hammer, then watches free videos on the vendor’s website”, the judge wrote. The NBA argues that the VPPA’s privacy protections apply to this consumer, which is unusual. However, this scenario does not seem unusual in light of the privacy-protection goals of the VPPA with respect to individuals ‘ video viewing information. Especially given the broad definition of consumer in the VPPA, allowing the disclosure of the consumer’s video viewing information would be out of step with the statute’s objectives.
On behalf of other Americans who had their personal viewing information disclosed to Meta through access to NBA.com, Salazar intends to have his case classed as a result, but there is a problem. The NBA’s terms of use contain a class action waiver provision, which Salazar would need to overcome.
Salazar’s potential damages might prove modest. The VPPA provides statutory damages of at least$ 2, 500 per violation, plus reasonable attorneys ‘ fees, litigation costs and possible punitive damages.
The parties, of course, could hit the pause button at any time and settle.