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MANHATTAN (CN) — The Second Circuit was asked Tuesday morning to split from circuit precedent to keep alive a class action accusing the NBA of privacy violations through its use of Meta’s Pixel tracking software to secretly monitor basketball fans’ online activities.
The case centers on a civil complaint brought by Michael Salazar, who sued the NBA in 2022 claiming the league tracked his online browsing on NBA.com and through its free newsletter, then shared that activity with Meta to serve him targeted ads.
Michael Salazar says the NBA violated the 1988 Video Privacy Protection Act — prohibiting the disclosure of a customer’s viewing history without their consent — by sharing his online activity with Facebook.
Arguing to keep Salazar’s case dismissed, the NBA told a federal appeals panel that Salazar’s claims should remain dismissed under Second Circuit precedent from Solomon v. Flipps Media Inc. That case focused on whether “ordinary person would be able to understand the actual underlying code communication itself,” and the appeals court ruled that sending a user’s Facebook ID and video-related URL character strings to third-party tracking pixels does not violate the VPPA.
The law was sparked by the Washington City Paper’s publication of profile on a Supreme Court nominee’s movie rental history from a local video store, but Salazar’s case sought a determination whether such privacy protections should extend to free videos viewed online.
The NBA argues on appeal the personal identifying information was only disclosed to Facebook through a transmission of computer code that included Salazar’s Facebook ID number, an identifier generated for each account holder as part of the web page’s URL during video viewings.
On Tuesday, U.S. Circuit Judge Pierre Leval opined that the Second Circuit is likely bound by “the ordinary person” 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 — which ultimately spawned the 1988 VPPA designed to prevent such disclosure — “as long as they used a code instead of using straightforward language.”
“Speaking for myself alone, say if I were a district judge,” the Bill Clinton appointee said during oral arguments. “I would probably write something along the lines of saying, ‘I am bound by Solomon, I must decide this case in your favor, but I think it’s 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’ve adopted in Solomonreally undermines the statute and the purpose of the statute, as well as the words of the statute.’”
The NBA’s defense attorney Hilary L. Preston, from Vinson & Elkins LLP, responded that the Supreme Court’s recent denial of certiorari indicates the high court’s interest in taking on the challenges to Solomon now dividing the circuit, in addition to the Second Circuit’s denial of petition for rehearing en banc in the related case, Brandon Hughes v. National Football League.
According to Salazar’s attorney Joshua Hammack, the NBA “knew exactly what it was doing” when disclosing website visitors’ data to Meta through the Pixel tracking system.
“It was disclosing the information to Facebook, and Facebook, it knew, didn’t need to break the code or something,” the Bailey & Glasser lawyer told the panel. “Facebook 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 — the NBA specifically programmed the Pixel on its website to disclose that exact information,” Hammack continued.
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.
The panel reserved immediate decision on the appeal on Tuesday morning.
At first glance, the lower court sided with the NBA and dismissed Salazar’s 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.
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.
The panel held that Salazar’s injury was enough like the common law tort for the “public disclosure of private facts” based on his claim that his personally identifiable information had been exposed to an unauthorized third party.
Petitioning the Supreme Court to take the case on appeal, the NBA challenged the Second Circuit’s finding that the Video Privacy Protection Act could be extended to apply to individuals who watched videos without renting, buying or subscribing to it.
The NBA argued that Salazar should not count as a subscriber, and consequently lacks standing, because he was only subscribed to the league’s free newsletter, not any audiovisual services.
The Supreme Court last December declined 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’s information is disclosed to another business. Now the case is back in front of the Second Circuit again after the lower court tossed Salazar’s second amended complaint in October 2025.
The NBA petitioned the high court to review the Second Circuit’s 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.
The Third, 10th and 11th Circuits have each held that a consumer does not have standing, ruling that federal courts cannot recognize “nonpublic, business-to-business disclosures” as harmful. The Sixth and Seventh Circuits have heard arguments in similar cases and are likely to reject the Second Circuit’s decision in looming opinions, the NBA said.
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’ online behavior in order to sell targeted advertising based on the tracked activities.
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