Login | December 23, 2024
NBA loses Video Privacy Act newsletter case
RICHARD WEINER
Technology for Lawyers
Published: December 13, 2024
Another chapter in the ongoing “how can laws that were written before the Internet be applied to modern technology?” has come out of the federal courts of New York, and involves acts by a plaintiff that we’ve all done.
Also, I write this column, the Cleveland Cavaliers basketball team has started their season 15-0.
That team, of course, is a member of the National Basketball Association (NBA), and the NBA just lost a Video Privacy Protection Act (VPPA) case in the U.S. 2nd Circuit fCourt of Appeals.
The case is Salazar v. NBA, No. 23-1147 (2d Cir. 2024), and it shows that even older privacy laws, like the 1988 VPPA, still have bite in the modern age.
Michael Salazar had signed up for the NBA’s free online newsletter.
In doing so, he disclosed personally identifiable information (PII), including his Facebook email address. (Hint: my Facebook email address is not my main one).
Salazar then claimed in a class action lawsuit that the NBA had violated his privacy by disclosing his video-watching history and Facebook ID to Meta Platforms, Inc. without his consent via the Facebook Pixel program.
Oops.
Imagine that—Zuck disclosing personal info for money.
Who would have thought?
The district court sided with the NBA, holding that he did not qualify as a “consumer” under the VPPA since the newsletter was not an audiovisual “good or service,” and signing up for it did not make him a VPPA “subscriber.”
That decision was reversed by the 2nd Circuit, which held that the term “goods and services” also applied to signing up for the newsletter under the VPPA and that the law was broad enough to cover any disclosure of any material personal information.
That PII included email addresses, IP addresses and cookies associated with his personal use.
Right?
All he did was sign up for an email and boom, no more privacy.
It is a narrow holding but it may very well be persuasive to other courts as we go along.
And it shows that old laws can sometimes be applied to current tech and particularly with privacy issues.
Check it out.
Thanks for the original analysis to the folks at Baker McKenzie