On Tuesday, U.S. Circuit Judge Pierre Leval opined that the Second Circuit is likely bound by \u201cthe ordinary person\u201d test applied in Solomon, but noted the standard it set would have allowed the Washington City Paper reporter to get away with obtaining the video rental history of Supreme Court nominee Robert Bork \u2014 which ultimately spawned the 1988 VPPA designed to prevent such disclosure \u2014 \u201cas long as they used a code instead of using straightforward language.\u201d<\/p>\n
\u201cSpeaking for myself alone, say if I were a district judge,\u201d the Bill Clinton appointee said during oral arguments. \u201cI would probably write something along the lines of saying, \u2018I am bound by Solomon, I must decide this case in your favor, but I think it\u2019s wrong. And I think that that people who examine this question in the future, including the Supreme Court and the Second Circuit, if they go en banc with it, or decide otherwise to depart from Solomon, I think that they should reverse it, because it seems to me that the standard that we\u2019ve adopted in Solomonreally undermines the statute and the purpose of the statute, as well as the words of the statute.\u2019\u201d<\/p>\n
The NBA\u2019s defense attorney Hilary L. Preston, from Vinson & Elkins LLP, responded that the Supreme Court\u2019s recent denial of certiorari indicates the high court\u2019s interest in taking on the challenges to Solomon now dividing the circuit, in addition to the Second Circuit\u2019s denial of petition for rehearing en banc in the related case, Brandon Hughes v. National Football League.<\/p>\n
According to Salazar\u2019s attorney Joshua Hammack, the NBA \u201cknew exactly what it was doing\u201d when disclosing website visitors\u2019 data to Meta through the Pixel tracking system.<\/p>\n
\u201cIt was disclosing the information to Facebook, and Facebook, it knew, didn\u2019t need to break the code or something,\u201d the Bailey & Glasser lawyer told the panel. \u00a0\u201cFacebook wrote that code. Facebook created the Pixel. Facebook told the NBA how to program the pixel to disclose certain kinds of information, including critically information about the videos users watched on NBA.com \u2014 the NBA specifically programmed the Pixel on its website to disclose that exact information,\u201d Hammack continued.<\/p>\n
Leval was joined on the three-judge panel by U.S. Circuit Judge Michael Park, a Donald Trump appointee, and U.S. Circuit Judge Eunice Lee, a Joe Biden appointee.<\/p>\n
The panel reserved immediate decision on the appeal on Tuesday morning.<\/p>\n
At first glance, the lower court sided with the NBA and dismissed<\/a> Salazar\u2019s claims in August 2023, finding he lacked standing to sue the NBA as a consumer because he had only watched the free videos online and thus did not count as a subscriber.<\/p>\n But on appeal, the Second Circuit sided with Salazar, holding he had standing as a consumer under the VPPA based on his subscription to the online newsletter and his separate viewing of highlights on the site.<\/p>\n The panel held that Salazar\u2019s injury was enough like the common law tort for the \u201cpublic disclosure of private facts\u201d based on his claim that his personally identifiable information had been exposed to an unauthorized third party.<\/p>\n Petitioning the Supreme Court to take the case on appeal, the NBA challenged the Second Circuit\u2019s finding that the Video Privacy Protection Act could be extended to apply to individuals who watched videos without renting, buying or subscribing to it.<\/p>\n The NBA argued that Salazar should not count as a subscriber, and consequently lacks standing, because he was only subscribed to the league\u2019s free newsletter, not any audiovisual services.<\/p>\n The Supreme Court last December declined<\/a> to hear arguments in a challenge brought by the NBA, seeking the reversal of a Second Circuit decision finding a concrete injury when a consumer\u2019s information is disclosed to another business. Now the case is back in front of the Second Circuit again after the lower court tossed<\/a> Salazar\u2019s second amended complaint in October 2025.<\/p>\n The NBA petitioned the high court to review the Second Circuit\u2019s decision, noting a split among appeals courts regarding whether a consumer has standing when two businesses disclose information to each other without making the information public.<\/p>\n The Third, 10th and 11th Circuits have each held that a consumer does not have standing, ruling that federal courts cannot recognize \u201cnonpublic, business-to-business disclosures\u201d as harmful. The Sixth and Seventh Circuits have heard arguments in similar cases and are likely to reject the Second Circuit\u2019s decision in looming opinions, the NBA said.<\/p>\n Meta developed the Metal Pixel JavaScript code, formerly known as the Facebook Pixel, to be installed on third-party websites so that it can track users\u2019 online behavior in order to sell targeted advertising based on the tracked activities.<\/p>\n