{"id":202611,"date":"2025-10-10T12:15:07","date_gmt":"2025-10-10T12:15:07","guid":{"rendered":"https:\/\/www.newsbeep.com\/ca\/202611\/"},"modified":"2025-10-10T12:15:07","modified_gmt":"2025-10-10T12:15:07","slug":"nba-facebook-tracking-pixel-lawsuit-dismissed-but-sctous-could-review","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/ca\/202611\/","title":{"rendered":"NBA Facebook Tracking Pixel Lawsuit Dismissed, but SCTOUS Could Review"},"content":{"rendered":"

\n\tFor the second time in two years, U.S. District Judge Jennifer L. Rochon has dismissed a lawsuit brought by a man who accuses the NBA<\/a> of illegally using the Meta<\/a> Pixel tracking tool to disclose his viewing of NBA.com videos.<\/p>\n

\n\tWhether the dismissal withstands an appellate challenge this time around remains to be seen, especially given the U.S. Supreme Court<\/a> has been asked to review the case.<\/p>\n

\n\tTwo years ago, Rochon dismissed Michael Salazar\u2019s lawsuit accusing the NBA of violating the federal Video Privacy Protection Act (VPPA). The VPPA, which President Ronald Reagan signed into law in 1988, makes it unlawful for a video tape service provider to knowingly disclose a consumer\u2019s personal information. Even though the VPPA was designed to address video stores sharing customer lists of rented VHS movies, Salazar has argued the VPPA also governs the sharing of lists of videos watched online.\u00a0<\/p>\n

\n\tHe notes that the Meta Pixel tracking tool is used to collect data on videos viewed, identify their Facebook<\/a> ID and analyze which types of ads are most likely to appeal to an Internet user. Meta, which owns Facebook and Instagram, relies on this data. Salazar claims he didn\u2019t know his data was being shared by clicking on NBA.com and its videos.<\/p>\n

\n\tRochon\u2019s dismissal of Salazar\u2019s case in 2023 reflected what she deemed Salazar\u2019s failure to establish that he was a consumer of goods and services from a video tape provider within the meaning of the VPPA. His free, digital subscription to NBA.com didn\u2019t make him a consumer, Rochon reasoned. The Second Circuit disagreed, finding Salazar\u2019s subscription did, in fact, make him a consumer and sent the case back to Rochon.<\/p>\n

\n\tThe trial judge this week once again dismissed Salazar\u2019s case. This time around it\u2019s because Salazar failed to allege disclosure of \u201cpersonally identifiable information\u201d at least as that kind of \u201cinformation\u201d is understood within the meaning of Second Circuit precedent.<\/p>\n

\n\tAs Rochon noted, the VPPA defines \u201cpersonally identifiable information\u201d as types of information that identifies \u201ca person as having requested or obtained specific video materials from a video tape service provider.\u201d\u00a0<\/p>\n

\n\tThat wonky definition has sparked conflicting interpretations by different federal circuits. In the Second Circuit, this information must be of the kind that would permit an ordinary person to identify video-watching habits. If the information is only decipherable to a \u201csophisticated technology company,\u201d like Meta, then in the Second Circuit it would not count as information protected by the VPPA.<\/p>\n

\n\tRochon reasoned that Salazar\u2019s case must be dismissed based on several recent Second Circuit rulings, including in\u00a0<\/a>Solomon v. Flipps Media<\/a>. The case was brought by Detrina Solomon, who subscribed to FITE TV, a digital video streaming service that has been rebranded as Thriller TV. The Meta Pixel sent Solomon\u2019s information to Facebook when she viewed videos.\u00a0<\/p>\n

\n\tIn May the Second Circuit reasoned that an \u201cordinary person\u201d could not identify Solomon through her Facebook ID. The court explained that a digital code in a cookie file would be unhelpful to someone unless they possessed technical expertise or other special skills. In June, the Second Circuit reached\u00a0<\/a>the same conclusion<\/a>\u00a0about a VPPA case brought against the NFL and added \u201cSolomon\u00a0effectively shut the door for Pixel-based VPPA claims.\u201d<\/p>\n

\n\tSalazar has already given notice of a pending appeal to the Second Circuit. He has also urged the U.S. Supreme Court to not intervene at this point. As\u00a0Sportico\u00a0has covered, the NBA petitioned the Supreme Court\u00a0in March<\/a>\u00a0to review the case. On Tuesday, Salazar attorney Joshua I. Hammack of Bailey & Glasser filed a brief at the Supreme Court expressing hope the Second Circuit will consider recent Supreme Court precedent.<\/p>\n

\n\tHammack wrote that the Supreme Court \u201cexpressly rejected judge-made atextual tests in three separate, and unanimous, opinions\u201d issued after\u00a0Solomon. Those opinions didn\u2019t concern the VPPA and instead involved Title VII, the Foreign Sovereign Immunities Act, and the Americans with Disabilities Act. But Hammack contends the same reasoning applies to the use of an \u201cordinary person\u201d test that isn\u2019t stated in the VPPA.\u00a0<\/p>\n

\n\t\u201cThere is no reason to think judge-made atextual tests are off limits for Title VII, the Foreign Sovereign Immunities Act, and the Americans with Disabilities Act,\u201d Hammack wrote, \u201cbut are somehow permissible for the VPPA.\u201d<\/p>\n

\n\tHammack quoted Justice Clarence Thomas, who recently wrote that atextual rules \u201chave a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for the courts,\u201d since they aren\u2019t from the statute\u2019s language and instead reflect a judge-made interpretation. Hammack emphasized that the VPPA \u201cnowhere mentions an ordinary person\u201d or a test involving an ordinary person.<\/p>\n

\n\tAccording to the Supreme Court\u2019s docket, the justices will discuss\u00a0Salazar v. NFL\u00a0when they confer on Friday. They could decide whether or not to accept the petition to review the case. The Supreme Court only grants about 1% of petitions, so the odds are long. However, VPPA cases have led to conflicting decisions in different federal circuits\u2014an outcome that creates the kind of legal uncertainty the justices may wish to address<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"For the second time in two years, U.S. District Judge Jennifer L. Rochon has dismissed a lawsuit brought…\n","protected":false},"author":2,"featured_media":202612,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[434],"tags":[49,48,2096,4998,281,459,82,27524],"class_list":{"0":"post-202611","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-nba","8":"tag-ca","9":"tag-canada","10":"tag-facebook","11":"tag-federal-courts","12":"tag-meta","13":"tag-nba","14":"tag-sports","15":"tag-u-s-supreme-court"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/202611","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/comments?post=202611"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/202611\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media\/202612"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media?parent=202611"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/categories?post=202611"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/tags?post=202611"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}