SCOTUS Declines to Review NBA Case, Leaving Video Privacy Issues Unresolved
The U.S. Supreme Court’s decision to forego reviewing a Video Privacy Protection Act (VPPA) case means questions and conflicting rulings on the statute will remain unsettled, leaving businesses in a lurch, David Krueger, privacy litigator at Benesch, told Privacy Daily Monday.
Sign up for a free preview to unlock the rest of this article
Privacy Daily provides accurate coverage of newsworthy developments in data protection legislation, regulation, litigation, and enforcement for privacy professionals responsible for ensuring effective organizational data privacy compliance.
The case, Salazar v. NBA, revolved around the definition of consumer under the 1988 federal statute. A ruling from the 2nd U.S. Circuit Court of Appeals in October 2024 broadened the VPPA’s scope (see 2501100009), but there has since been a circuit split on the issue (see 2508190026).
The NBA petitioned the Supreme Court in March, asking the high court to review the 2nd Circuit decision (see 2503190047). The court held a conference in case 24-944 Friday (see 2512040034), where it denied the petition.
It was “a disappointing outcome,” Krueger said. “Since the Second Circuit’s Salazar decision came out in October 2024, there have been three other Circuits (Sixth, Seventh, and D.C. Circuits) that have come out with competing decisions, creating an even split on the issue of what qualifies as a consumer under the VPPA” (see 2504030064, 2503310018 and 2508120030).
Michael Meuti, another Benesch lawyer who represented the National Retail Federation and Interactive Advertising Bureau in their amicus brief supporting the NBA’s request of the Supreme Court (see 2505020048), was also disappointed.
“Applying statutes like the Video Privacy Protection Act to technologies far beyond what Congress ever intended imposes undue and costly burdens on American businesses,” he emailed us email Monday. “We hope that the Court will address” the “important issue presented … in a future case.”
Krueger agreed. Without a review or ruling, “businesses are left to grapple with VPPA compliance in the wake of unsettled and conflicting law, where the threat of liability turns more on where a lawsuit is filed rather than any concrete legal compliance principles.”
Though the high court may be “giving more time to see how the split develops with other Circuits,” this “is only speculation since the Court doesn’t give a reason for a denial of certiorari.”
No matter the motive, “it's disappointing to see the Supreme Court pass on a clear opportunity to resolve a Circuit split and provide much needed clarification on the law,” especially “given the potentially catastrophic statutory damages of the VPPA in the class action context,” the lawyer said.
Neither the NBA’s counsel nor Salazar’s legal representation responded to a request for comment.