Confusion Continues After Spokeo

Paul Gaus, MJLST Staffer

Many observers hoped the Supreme Court’s decision in Spokeo v. Robins would bring clarity to whether plaintiffs could establish Article III standing for claims based on future harm from date breaches. John Biglow explored the issue prior to the Supreme Court’s decision in his note It Stands to Reason: An Argument for Article III Standing Based on the Threat of Future Harm in Date Breach Litigation. For those optimistic the Supreme Court would expand access to individuals seeking to litigate their privacy interests, they were disappointed.

Spokeo is a people search engine that generates publicly accessible online profiles on individuals (they had also been the subject of previous FTC data privacy enforcement actions). The plaintiff claimed Spokeo disseminated a false report on him, hampering his ability to find employment. Although the Ninth Circuit held the plaintiff suffered “concrete” and “particularized” harm, the Supreme Court disagreed, claiming the Ninth Circuit analysis applied only to the particularization requirement. The Supreme Court remanded the matter back to the Ninth Circuit, casting doubt on whether the plaintiff suffered concrete harm. Spokeo violated the Fair Credit Reporting Act, but the Supreme Court characterized the false report as a bare procedural harm, insufficient for Article III standing.

Already, the Circuits are split on how Spokeo impacted consumer data protection lawsuits. The Eighth Circuit held that a cable company’s failure to destroy personally identifiable information of a former customer was a bare procedural harm akin to Spokeo in Braitberg v. Charter Communications. The Eighth Circuit reached this conclusion despite the defendant’s clear violation of the Cable Act. By contrast, the Eleventh Circuit held a plaintiff did have standing when she failed to receive disclosures of her default debt from her creditor under the Fair Debt Collections Practices Act in Church v. Accretive Health.

Many observers consider Spokeo an adverse result for consumers seeking to litigate their privacy interests. The Supreme Court punting on the issue continued the divergent application of Article III standing and class action privacy suits among the Circuits.

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