Bailey Glasser’s recent appellate victory in Salazar v. NBA is garnering national media attention, with new coverage by Bloomberg Law and Reuters. Partners Michael Murphy and Joshua Hammack achieved a landmark win in the Second Circuit, defending the right of consumers to control information about their video-watching history under the federal Video Privacy Protection Act (VPPA).
“They’ve got two choices—they either don’t use the pixel, or they get consent from their consumer,” partner Michael Murphy told Bloomberg Law regarding the importance of the recent Second Circuit decision requiring clear consent in data-handling practices.
At the heart of the case, Mr. Salazar, a subscriber to the NBA’s newsletter, alleged the NBA unlawfully shared his video-watching history with Facebook. A lower court dismissed Salazar’s VPPA claim based on its view that he didn’t meet the statutory definition of a “consumer.” The Second Circuit, however, vacated this decision, holding the VPPA protects anyone who subscribes to any “goods or services” from a video provider—even to non-audiovisual goods or services, like the online newsletters at issue in this case. The Second Circuit’s interpretation, which is the first in the country from a federal appellate court, sets a powerful precedent for future cases.
To Reuters, Joshua Hammack, lead appellate counsel who argued the appeal, described the decision’s impact. After noting that businesses profiting from targeted-advertising regimes that violate consumers’ privacy interests might have preferred a different outcome, Hammack said: “The Second Circuit confirmed Congress said what it meant and meant what it said. The decision is a slam dunk for consumers hoping to keep their personal information private.”
The case is Salazar v. National Basketball Association, Case number 23-1147, in the U.S. Court of Appeals for the Second Circuit. To learn more and to read the Court’s full decision, visit here.
To learn more about Josh Hammack, visit here.
To learn more about Michael Murphy, visit here.