Washington, D.C. — The National Basketball Association (NBA), backed by the National Football League (NFL), is pushing the U.S. Supreme Court to clarify the Video Privacy Protection Act (VPPA), legislation from the 1980s designed to safeguard consumer video rental and viewing records. As the landscape of digital content evolves, discrepancies among federal courts have emerged regarding whether this historic law should extend to individuals accessing free online content.
The legal debate centers on conflicting rulings from the U.S. Court of Appeals. The 2nd and 7th Circuits have interpreted the VPPA as applicable to consumers who engage with non-audiovisual goods and services from videotape service providers, while the 6th Circuit has disagreed, asserting that protections are only afforded to those subscribing to traditional audiovisual content.
In a brief submitted on Wednesday, attorneys Shay Dvoretzky and Raza Rasheed emphasized the need for the Supreme Court to intervene, noting that “only this Court can resolve the split.”
The ongoing case involves Michael Salazar, who filed a lawsuit against the NBA after signing up for the league’s free email newsletter and viewing complimentary online videos while logged into his Facebook account. Salazar alleges that tracking software on the NBA’s website shared his viewing history with Meta, Facebook’s parent company, without his consent.
The NBA contends that Salazar does not qualify for protection under the VPPA since he merely subscribed to its email service rather than engaging with its audiovisual materials. However, in October 2024, the 2nd Circuit ruled Salazar was a “consumer” under the VPPA, having exchanged personal information for access to the NBA’s offerings. The 7th Circuit upheld this decision, but the 6th Circuit dissented, limiting VPPA protections to traditional visual media subscriptions.
Salazar’s attorney, Joshua I. Hammack, argues against considering the case before a final judgment is reached, citing ongoing amendments to the complaints. “This case is far from an ‘ideal’ or ‘perfect vehicle,'” he stated in a brief.
The NFL has supported the NBA’s petition, warning of industry-wide consequences stemming from class action lawsuits under the VPPA. In its brief, the NFL expressed concern that without Supreme Court interventions, sports leagues and other content providers could face greater threats from such legal challenges.
The VPPA, enacted in 1988 and called the “Bork bill” after Robert Bork’s video rental history was publicly disclosed during his Supreme Court nomination, holds that any “videotape service provider” illegally sharing consumer information may face legal consequences.
Attorneys for the NBA assert that the case presents significant questions regarding the VPPA’s interpretation and the standing of Salazar, asserting that erroneous Circuit decisions could harm the modern online economy. Hammack counters that the definition of a “consumer” under the VPPA should not exclude those engaging with digital content platforms.
As the NBA awaits a response from the Supreme Court regarding its petition for a writ of certiorari, the case remains pivotal in determining the future of digital privacy in entertainment.
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