Second Circuit Rejects One VPPA Defense, Remands For Consideration Of Others

The Video Privacy Protection Act, 18 U.S.C. § 2710 (“VPPA”) was enacted by Congress in 1988 after a newspaper published a profile of Supreme Court nominee Judge Robert H. Bork, which contained the titles of 146 films he and his family had rented from a local video store.  The VPPA aims to protect privacy of individuals’ video rentals. 

In recent years, the widespread use of marketing analytic tools which transmit website visitor information to third parties, the Facebook Pixel being the most popular, has generated many lawsuits seeking to apply the VPPA to website activities.  Website owners have attempted to dismiss these suits at their earliest stages, arguing that the plaintiff had failed to meet one or more statutory requirements.

A recent decision by the Second Circuit,  Salazar v. National Basketball Association, 118 F.4th 533 (2024), rejected one such defense. The VPPA limits claims to someone who is a “subscriber,”  defined as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1).  Most of these terms are not defined. The particular issue presented in Salazar was the whether the plaintiff must have been a “subscriber” to a video, or merely to some other item, such a free newsletter, a common feature of many websites.

The Second Circuit held the latter, reversing the district court on this point. After reviewing both the VPPA’s language and legislative history, it concluded that the “goods or services” to which the plaintiff is a “subscriber” need not be videos, but can be anything, including free newsletters.  So the plaintiff qualified for a VPPA claim.

The NBA raised many other defenses, as to which the Second Circuit remanded for further consideration.  We discussed these other defenses in our article Strategies To Defending VPPA Claims.  The determination of these issues has now become important in many future cases.