Salazar v. National Basketball Association

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 Before RAGGI, LEE, and ROBINSON, Circuit Judges. 

The Bottom Line

The Court vacated the district court’s dismissal. It held that the appellant demonstrated a concrete injury sufficient for standing. The court also reversed the lower court’s conclusion that he was not a “subscriber of goods or services,” rejecting the reasoning that the online newsletter was not an audiovisual good or service and that signing up for it did not make Salazar a VPPA “subscriber.” 

Class Action Takeaway 

The Second Circuit’s broad reading of “consumer” under the VPPA signals that class actions can now target companies that share video-watching data using personal information gathered from free subscriptions or newsletters. Any digital service collecting identifiable user data tied to audiovisual content could face group litigation, not just traditional rental or purchase models. 

Background

The Video Privacy Protection Act (VPPA), enacted in 1988, contains language rooted in an older era of video technology. However, the Court recognizes that its language is still pertinent to the modern day. Michael Salazar sued the NBA under the VPPA after signing up for a free email newsletter, alleging that the NBA then shared his video-watching history from its website with Meta Platforms without his consent. The district court dismissed the case, finding that Salazar was not a “consumer” under the VPPA, and therefore the NBA’s disclosure did not violate the statute. Under the VPPA, a “consumer” is defined as any “renter, purchaser, or subscriber of goods or services from a video tape service provider.” But the Act does not define key terms such as “subscriber” or “video tape service provider.” Salazar argued that by subscribing to the NBA’s free newsletter, he became a “subscriber” of the NBA’s goods and services—particularly because the NBA makes videos available on its website—thus qualifying him as a VPPA consumer. The NBA countered that a free email newsletter is not an audiovisual good or service and that signing up for it does not make someone a VPPA “subscriber.” The district court agreed with the NBA’s interpretation. Salazar appealed.

Opinion

The VPPA prohibits a “video tape service provider” from “knowingly disclos[ing] … personally identifiable information concerning any consumer of such provider,” subject to exceptions for “informed, written consent.” When interpreting the phrase “subscriber of goods or services,” the Court emphasized that Congress used broad language to define “consumer,” while limiting only the provider through the audiovisual requirement. The Court rejected the NBA’s argument that “goods or services” must themselves be audiovisual. Instead, it explained that the term “video tape service provider” applies to any business that engages in any capacity in renting, selling, or delivering audiovisual content.

Accordingly, a “consumer” under the VPPA is anyone who rents, purchases, or subscribes to any of the provider’s goods or services—not just its audiovisual offerings.  The Court also rejected the NBA’s argument that being a “subscriber” requires a purchase, noting that the term can include free subscriptions, such as those commonly used on YouTube. It emphasized that by collecting Salazar’s personal information, the NBA gained the ability to directly contact him and encourage him to return to its site to watch videos—creating a relationship different from that of casual, non-subscribing visitors who simply browse the site without signing up for the free newsletter. Because the district court applied a narrower interpretation, its dismissal was vacated, and the case was remanded for further proceedings.