For the second time in two years, U.S. District Judge Jennifer L. Rochon has dismissed a lawsuit brought by a man who accuses the NBA of illegally using the Meta Pixel tracking tool to disclose his viewing of NBA.com videos.
Whether the dismissal withstands an appellate challenge this time around remains to be seen, especially given the U.S. Supreme Court has been asked to review the case.
Two years ago, Rochon dismissed Michael Salazar’s lawsuit accusing the NBA of violating the federal Video Privacy Protection Act (VPPA). The VPPA, which President Ronald Reagan signed into law in 1988, makes it unlawful for a video tape service provider to knowingly disclose a consumer’s personal information. Even though the VPPA was designed to address video stores sharing customer lists of rented VHS movies, Salazar has argued the VPPA also governs the sharing of lists of videos watched online.
He notes that the Meta Pixel tracking tool is used to collect data on videos viewed, identify their Facebook ID and analyze which types of ads are most likely to appeal to an Internet user. Meta, which owns Facebook and Instagram, relies on this data. Salazar claims he didn’t know his data was being shared by clicking on NBA.com and its videos.
Rochon’s dismissal of Salazar’s case in 2023 reflected what she deemed Salazar’s failure to establish that he was a consumer of goods and services from a video tape provider within the meaning of the VPPA. His free, digital subscription to NBA.com didn’t make him a consumer, Rochon reasoned. The Second Circuit disagreed, finding Salazar’s subscription did, in fact, make him a consumer and sent the case back to Rochon.
The trial judge this week once again dismissed Salazar’s case. This time around it’s because Salazar failed to allege disclosure of “personally identifiable information” at least as that kind of “information” is understood within the meaning of Second Circuit precedent.
As Rochon noted, the VPPA defines “personally identifiable information” as types of information that identifies “a person as having requested or obtained specific video materials from a video tape service provider.”
That wonky definition has sparked conflicting interpretations by different federal circuits. In the Second Circuit, this information must be of the kind that would permit an ordinary person to identify video-watching habits. If the information is only decipherable to a “sophisticated technology company,” like Meta, then in the Second Circuit it would not count as information protected by the VPPA.
Rochon reasoned that Salazar’s case must be dismissed based on several recent Second Circuit rulings, including inSolomon v. Flipps Media. The case was brought by Detrina Solomon, who subscribed to FITE TV, a digital video streaming service that has been rebranded as Thriller TV. The Meta Pixel sent Solomon’s information to Facebook when she viewed videos.
In May the Second Circuit reasoned that an “ordinary person” could not identify Solomon through her Facebook ID. The court explained that a digital code in a cookie file would be unhelpful to someone unless they possessed technical expertise or other special skills. In June, the Second Circuit reachedthe same conclusion about a VPPA case brought against the NFL and added “Solomon effectively shut the door for Pixel-based VPPA claims.”
Salazar has already given notice of a pending appeal to the Second Circuit. He has also urged the U.S. Supreme Court to not intervene at this point. As Sportico has covered, the NBA petitioned the Supreme Court in March to review the case. On Tuesday, Salazar attorney Joshua I. Hammack of Bailey & Glasser filed a brief at the Supreme Court expressing hope the Second Circuit will consider recent Supreme Court precedent.
Hammack wrote that the Supreme Court “expressly rejected judge-made atextual tests in three separate, and unanimous, opinions” issued after Solomon. Those opinions didn’t concern the VPPA and instead involved Title VII, the Foreign Sovereign Immunities Act, and the Americans with Disabilities Act. But Hammack contends the same reasoning applies to the use of an “ordinary person” test that isn’t stated in the VPPA.
“There is no reason to think judge-made atextual tests are off limits for Title VII, the Foreign Sovereign Immunities Act, and the Americans with Disabilities Act,” Hammack wrote, “but are somehow permissible for the VPPA.”
Hammack quoted Justice Clarence Thomas, who recently wrote that atextual rules “have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for the courts,” since they aren’t from the statute’s language and instead reflect a judge-made interpretation. Hammack emphasized that the VPPA “nowhere mentions an ordinary person” or a test involving an ordinary person.
According to the Supreme Court’s docket, the justices will discuss Salazar v. NFL when they confer on Friday. They could decide whether or not to accept the petition to review the case. The Supreme Court only grants about 1% of petitions, so the odds are long. However, VPPA cases have led to conflicting decisions in different federal circuits—an outcome that creates the kind of legal uncertainty the justices may wish to address.