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Case Number: 1:22-cv-07935
Judge: Jennifer L. Rochon
Court: United States District Court for the Southern District of New York (Manhattan County)
Description: New York City, New York consumer law lawyers represented Plaintiff who sued Defendant on a Wrongful Disclosure of Video Tape Rental or Sales Records theory.
Defendant NBA is a major American sports league headquartered in New York, New York. Compl. ¶ 13. The NBA maintains a website called NBA.com that has approximately 14.5 million unique monthly visitors. Id. ¶¶ 13, 21. On NBA.com, viewers can watch video content under a section of the website fittingly titled, “Videos.” Id. ¶ 13. The NBA also has a phone application (“App”) that is downloadable on Android and iPhone devices. Id. ¶ 21.
An individual may register on NBA.com by signing up for an online newsletter. Id. ¶ 20. To sign up, an individual provides personal information, including an email address. Id. When individuals sign up for this digital subscription, they provide the NBA with their IP address, which is an individualized number assigned to “all information technology connected devices.” Id. ¶ 22. The IP address provides the NBA with the user's city, zip code, and physical location. Id.
The NBA's Data Policies
This data will vary, but typically consists of name, email address, postal address, phone number and other similar contact data. We also receive data from the communications you send to us, such as customer service inquiries, product reviews and other feedback regarding the Services.
User credentials, such as username, password, password hints and similar security information used to create an account and authenticate users of the Services.
Demographic data, such as age, gender, country and language preference.
Payment data, such as credit card information and billing address.
Device data, such as type of device, operating system and other software installed on the device, device settings, IP address, device identifiers and error reports.
Usage data, such as the programs and features you access, items you purchase, and the timing, frequency and duration of your interactions through the Services.
Location data, such as IP addresses received from your device.
Information about your interests and preferences, such as your favorite teams and players, your home city or your communications preferences. In addition to what you provide directly, we may infer your interests and preferences from other data we collect, such as the content and advertisements you interact with while using the Services.
Defendant's Data Collection and Disclosure
Plaintiff alleges that Defendant collects and shares data and personal information of its users with third parties through cookies, software development kits (“SDKs”), and tracking pixels. Id. ¶ 3. Specifically here, Plaintiff claims that the NBA installed Facebook's tracking pixel on NBA.com. Id. ¶ 32. Therefore, when a digital subscriber uses NBA.com and watches videos, “the website sends to Facebook certain information about the viewer, including, but not limited to, their identity and the media content the digital subscriber watched.” Id. This Personal Viewing Information (“PVI”) is comprised of two sources of data: (1) personally
identifiable information including a Facebook ID (“FID”); and (2) “Video Media” meaning “the computer file containing video and its corresponding URL viewed.” Id. at p. 1. An FID is “a unique and persistent identifier that Facebook assigns to each user.” Id. ¶ 33. Using an FID, anyone can locate a user's Facebook profile and name. Id. ¶¶ 33-34. NBA.com, “through its website code, causes the digital subscriber's identity and viewed Video Media to be transmitted to Facebook by the user's browser.” Id. ¶ 33. Facebook, in turn, uses the data to show the user targeted ads. Id. ¶ 30.
Defendant purposefully used Facebook's pixel code on NBA.com and the App, knew that PVI would be disclosed to Facebook, and financially benefited from it. Id. ¶¶ 33, 35. Plaintiff alleges that the pixel “enabled NBA.com and accompanying app to show targeted advertising to its digital subscribers based on the products those digital subscriber's [sic] had previously viewed on the website or app, including Video Media consumption for which Defendant received financial remuneration.” Id. ¶ 35. The PVI is not anonymized and therefore Facebook can either add the data to the information it already has for specific users or use the data to generate new user profiles. Id. ¶ 38.
Plaintiff's Use of NBA.com
Plaintiff, a resident of California, signed up for a digital subscription to NBA.com in 2022. Id. ¶¶ 12, 46. To become a digital subscriber, Plaintiff provided NBA.com with his email address, his IP address, and cookies associated with his device. Id. ¶ 46. As a digital subscriber, Plaintiff receives emails and other communications from NBA.com. Id. Plaintiff also currently uses a Facebook account that he has had since 2010. Id. ¶¶ 12, 47. Since 2022, Plaintiff has watched videos “through NBA.com and/or the App” while logged into his Facebook account. Id. By doing so, Plaintiff alleges that his PVI was disclosed to Facebook through the
aforementioned process. Id. ¶¶ 12, 48. Plaintiff contends that he “never consented, agreed, authorized, or otherwise permitted Defendant to disclose his Personal Viewing Information to Facebook.” Id. ¶ 48. Plaintiff alleges he was never provided written notice that his PVI would be disclosed, nor did Plaintiff receive any written notice that he could opt out of the disclosure of his PVI. Id. “Plaintiff did not discover that Defendant disclosed his [PVI] to Facebook until August 2022.” Id. ¶ 49.
18 U.S.C. 2710 provides:
(a) Definitions.—For purposes of this section—
(1) the term “consumer” means any renter, purchaser, or subscriber of goods or services from a video tape service provider;
(2) the term “ordinary course of business” means only debt collection activities, order fulfillment, request processing, and the transfer of ownership;
(3) the term “personally identifiable information” includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider; and
(4) the term “video tape service provider” means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure.
(b) Video Tape Rental and Sale Records.—
(1) A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).
(2) A video tape service provider may disclose personally identifiable information concerning any consumer—
(A) to the consumer;
(B) to any person with the informed, written consent (including through an electronic means using the Internet) of the consumer that—
(i) is in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer;
(ii) at the election of the consumer—
(I) is given at the time the disclosure is sought; or
(II) is given in advance for a set period of time, not to exceed 2 years or until consent is withdrawn by the consumer, whichever is sooner; and
(iii) the video tape service provider has provided an opportunity, in a clear and conspicuous manner, for the consumer to withdraw on a case-by-case basis or to withdraw from ongoing disclosures, at the consumer’s election;
(C) to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and addresses of consumers and if—
(i) the video tape service provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and
(ii) the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such materials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or
(F) pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, if—
(i) the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure.
If an order is granted pursuant to subparagraph (C) or (F), the court shall impose appropriate safeguards against unauthorized disclosure.
(3) Court orders authorizing disclosure under subparagraph (C) shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the video tape service provider, may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on such provider.
(c) Civil Action.—
(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
(2) The court may award—
(A) actual damages but not less than liquidated damages in an amount of $2,500;
(B) punitive damages;
(C) reasonable attorneys’ fees and other litigation costs reasonably incurred; and
(D) such other preliminary and equitable relief as the court determines to be appropriate.
(3) No action may be brought under this subsection unless such action is begun within 2 years from the date of the act complained of or the date of discovery.
(4) No liability shall result from lawful disclosure permitted by this section.
(d) Personally Identifiable Information.—
Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State.
(e) Destruction of Old Records.—
A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (b)(2) or (c)(2) or pursuant to a court order.
The provisions of this section preempt only the provisions of State or local law that require disclosure prohibited by this section.
"The Wrongful Disclosure of Video Tape Rental or Sales Records law, also known as 18 U.S. Code § 2710, is a federal law that prohibits the disclosure of video tape rental or sales records without the consent of the customer. The law was passed in 1988 in response to concerns about privacy.
The law applies to video tape service providers, which are defined as "any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or other entity to whom a disclosure is made under subsection (b)(2) or (c)(2) of this section."
The law prohibits video tape service providers from disclosing video tape rental or sales records without the consent of the customer, except in certain limited circumstances. These circumstances include:
Disclosure to law enforcement officials pursuant to a warrant issued by a court of competent jurisdiction.
Disclosure to a person who has obtained the customer's consent in writing.
Disclosure to a person who has obtained the customer's consent orally, but only if the video tape service provider has a reasonable belief that the disclosure is authorized by the customer.
Disclosure to a person who has obtained the customer's consent in a clear and conspicuous manner, but only if the video tape service provider has provided the customer with the opportunity to appear and contest the claim of the person seeking the disclosure.
If a video tape service provider violates the Wrongful Disclosure of Video Tape Rental or Sales Records law, they may be liable to the customer for damages. The damages may include actual damages, punitive damages, and injunctive relief.
The Wrongful Disclosure of Video Tape Rental or Sales Records law is a powerful tool for protecting the privacy of video tape rental and sales records. If you believe that your video tape rental or sales records have been wrongfully disclosed, you should speak with an attorney to discuss your legal options."
Outcome: Memorandum & Opinion in favor of National Basketball Association against Michael Salazar. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated August 7, 2023, Defendant's motion to dismiss the Complaint under Rule 12(b)(1) is denied, but the motion to dismiss for failure to state a claim under Rule 12(b)(6) is GRANTED. Accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/8/2023) (tp) (Entered: 08/08/2023)