Joshua Hammack and Michael Murphy secured an important and precedent-setting appellate victory for consumer privacy yesterday. The law at issue—the federal Video Privacy Protection Act—was intended to prevent certain companies from disclosing consumers’ video-watching preferences. And the law broadly protects “consumers,” which it defines to include "any renter[s], purchaser[s], or subscriber[s] of goods or services from a video tape service provider." But, in August 2023, a district court in the Southern District of New York dismissed Mr. Salazar’s complaint alleging the NBA violated the VPPA by sharing his video-watching history with Facebook without his consent. It reasoned he was not a “consumer” because he subscribed only to the NBA’s online newsletter, and not to any of its audio-visual goods or services.

The Second Circuit flatly rejected this analysis. It held: "The phrase 'goods or services' in the VPPA is not cabined to audiovisual goods or services, but also reaches the NBA's online newsletter." Indeed, the term “consumer” “should be understood to encompass a renter, purchaser, or subscriber of any of the provider’s ‘goods or services’—audiovisual or not.” Because Mr. Salazar had alleged he subscribed to the newsletter, then, he was a statutory consumer entitled to the VPPA’s privacy protections.  

Joshua Hammack, lead appellate counsel who argued the appeal, had this to say: “We’re pleased the Second Circuit smacked the NBA’s arguments off the backboard. The opinion boils down to this: The VPPA says what it says, and the district court’s attempt to rewrite it was improper.” Michael Murphy added: “Not much more to say than it’s a slam dunk for consumer privacy.”

The Second Circuit’s opinion is the first appellate decision in the country to tackle the meaning of “consumer” in the VPPA. Dozens of district courts had previously required individuals to rent, purchase, or subscribe directly to audio-visual materials to count. In fact, Hammack and Murphy represent the same client in a similar appeal currently pending in the Sixth Circuit. Hammack argued that appeal in June 2024.

Congress passed the VPPA in 1988 after Supreme Court nominee Robert Bork’s video store rental history was disclosed to a D.C. newspaper. The statutory language has remained largely unchanged despite extreme changes in the way people consume video content. But, as the Second Circuit put it, “[t]he VPPA is no dinosaur statute. Congress deployed broad language in defining the term 'consumer,' showing it did not intend for the VPPA to gather dust next to our VHS tapes. Our modern means of consuming content may be different, but the VPPA's privacy protections remain as robust today as they were in 1988."

Bailey Glasser’s co-counsel in this case is Brandon Wise of Peiffer Wolf Carr Kane Conway & Wise LLP.

The case is Salazar v. National Basketball Association, Case number 23-1147, in the U.S. Court of Appeals for the Second Circuit. To read the Court’s full decision, please visit this link.

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