Michael Salazar filed a putative class action lawsuit against the National Basketball Association (NBA) alleging violations of the Video Privacy Protection Act (VPPA). Salazar alleged that he signed up for the NBA's free online newsletter, providing his email address, IP address, and device cookies in exchange for periodic updates. He also watched videos on NBA.com while logged into his Facebook account. The NBA had installed a 'Facebook Pixel' on its website, which collected Salazar's video viewing history and Facebook ID and disclosed this information to Meta Platforms, Inc. without Salazar's consent. The district court dismissed the case, ruling that while Salazar had standing, he was not a 'consumer' under the VPPA because the newsletter was not an audiovisual good or service and signing up for it did not make him a 'subscriber.'
The Second Circuit addressed two primary issues: Article III standing and the definition of 'consumer' under the VPPA. First, regarding standing, the court applied the Supreme Court's decision in TransUnion LLC v. Ramirez. The court held that Salazar's alleged injury—the non-consensual disclosure of his personal viewing information to a third party—has a 'close relationship' to the common-law tort of public disclosure of private facts. The court distinguished this from cases involving limited disclosures to mail vendors, noting that Meta is a major data aggregator that uses the information for targeted advertising and cross-referencing, creating a risk of harm analogous to public disclosure. Second, on the merits, the court interpreted the VPPA's definition of 'consumer' as 'any renter, purchaser, or subscriber of goods or services.' The court rejected the NBA's argument that 'goods or services' must be limited to audiovisual materials. Relying on the statute's text, structure, and purpose, the court noted that Congress used the broad phrase 'goods or services' in the consumer definition but specified 'audio visual materials' in the provider definition, indicating a deliberate choice to broaden the scope of protected consumers. Furthermore, the court held that 'subscriber' does not require monetary payment. Citing other circuits, the court reasoned that providing personal information in exchange for a service constitutes a valid subscription. Since Salazar exchanged his data for the newsletter, he plausibly alleged he was a 'subscriber of goods or services' and thus a 'consumer' protected by the VPPA.
The judgment is vacated and the case is remanded to the district court for further proceedings on the merits of the VPPA claim. This decision expands the scope of the VPPA to cover free digital services where users exchange data for access, potentially exposing more online platforms to liability for data sharing. The court left open questions regarding whether casual video watchers who do not sign up for newsletters are also 'consumers' and whether the NBA's disclosure was 'knowing' as required by the statute.
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