Salazar v. NBA
118 F.4th 533
| 2d Cir. | 2024Background
- Michael Salazar signed up for an online newsletter from the National Basketball Association (NBA) by providing personal information, such as his email and IP address, in return for receiving NBA-related updates.
- Salazar also watched videos on NBA.com while logged into his Facebook account; the NBA had embedded Meta’s (Facebook’s) tracking pixel on its site, which transmitted Salazar’s video-watching history and Facebook ID to Meta without his consent.
- Salazar alleged that this disclosure violated the Video Privacy Protection Act (VPPA), which prohibits knowing disclosure of personally identifiable information by a "video tape service provider" about a "consumer."
- The central question was whether Salazar qualified as a "consumer" under the VPPA by being a "subscriber of goods or services" from the NBA, and whether the NBA’s newsletter qualified as such a good or service.
- The District Court dismissed Salazar's complaint, finding he was not a "consumer" under the VPPA because the newsletter was not an audiovisual good or service, but determined he did have standing to sue.
- On appeal, the Second Circuit reversed, holding that Salazar plausibly alleged he is a VPPA consumer and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III Standing | Disclosure of personal info to Meta without consent is a concrete injury, like public disclosure of private facts | Claim isn't concrete because it was one legitimate business, not public, and harm doesn’t meet common law analog | Salazar has standing; injury closely relates to recognized tort of public disclosure of private facts |
| Definition of 'Consumer' under VPPA | By subscribing to the NBA’s online newsletter (giving personal info in exchange for emails), Salazar is a “subscriber of goods or services” under the VPPA | The newsletter is not an audiovisual good or service; thus Salazar was not a subscriber under the statute | "Goods or services" not limited to audiovisual materials; the NBA’s newsletter qualifies—Salazar plausibly pled he is a consumer |
| Scope of VPPA Protections | The VPPA’s privacy protection extends based on any goods or services, not just video content, so long as info disclosed is personally identifiable viewing info | Protection should be limited to only those who subscribe to audiovisual services, else non-video interactions would trigger the VPPA | Statutory text is broad—any subscriber of a video tape service provider's goods/services is protected as to video viewing info |
| Necessity of Monetary Payment for 'Subscriber' Status | Exchanging info for periodic newsletter suffices for subscriber status; payment not required | Subscriber should require more—commitment or financial payment for audiovisual content | Payment not required; providing personal info for regular communication meets "subscriber" definition |
Key Cases Cited
- TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) (addressing Article III standing for statutory privacy violations)
- Bohnak v. Marsh & McLennan Companies, Inc., 79 F.4th 276 (2d Cir. 2023) (exposure of personal info to unauthorized third parties relates to tort of public disclosure of private facts)
- Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) (discussing VPPA subscriber status and need for relationship or commitment)
- Yershov v. Gannett Satellite Information Network, Inc., 820 F.3d 482 (1st Cir. 2016) (subscriber status can be met by exchange of personal info for app access, even without payment)