Spokeo Case Demonstrates the Challenges of Injury in the Digital Age

Written by G.S. Hans

(CDT’s outside counsel in Spokeo, Marcia Hofmann, attended the oral argument and contributed to this post.)

Today the Supreme Court heard oral argument in Spokeo v. Robins, a case that has important implications for how individuals can promote accuracy in their credit reports, and, potentially, protect their privacy rights under federal law.

CDT filed an amicus brief in the case earlier this year alongside the Electronic Frontier Foundation, New America’s Open Technology Institute, and the World Privacy Forum. Spokeo is ostensibly about an obscure issue — whether Congress can, by passing a law, authorize standing for private claims that aren’t based on an injury beyond what the law states. But the outcome of this case could have major implications for individual privacy claims. The Fair Credit Reporting Act (FCRA), the law at issue in Spokeo, allows individuals to sue consumer-reporting agencies for damages up to $1,000 for inaccuracies in their reports, but doesn’t require the individual to demonstrate any injury beyond the violation of the requirements set forth in the law.

At argument, there was considerable time spent on trying to determine what “injury-in-fact” means, and how Congress can define injuries through statutes like FCRA. The law was intended to protect people from a powerful but opaque consumer reporting system by ensuring that consumer-reporting agencies perform their activities with fairness and respect for the confidentiality, accuracy, relevance, and privacy of personal information. FCRA is arguably more vital today than it was when it was first passed nearly fifty years ago. The vast proliferation of information online means that consumer reports incorporate many more sources of data — including social media, blog posts, and press reports — even though some of this information may be inaccurate. Regardless, it could be used as a factor in critical decisions about lending, housing, and employment.

We need regulation like FCRA to properly incentivize consumer-reporting agencies to have accurate information and the private right of action is one of the most important policy levers we have.

While much of today’s oral argument turned on the procedural aspects of standing doctrine, Justice Elena Kagan noted the necessity of maintaining accuracy in the consumer reporting system. In our amicus, we highlight the legislative history of FCRA and the challenges that inaccurate credit reports create. As the Justices noted, it’s often hard to know when a credit report is used to make a decision, and therefore accuracy is of crucial importance. Many of these decisions are invisible to an individual, who may never know that inaccurate information in a credit report was used to deny an apartment, a mortgage, or a job. It’s for this reason that we need regulation like FCRA to properly incentivize consumer-reporting agencies to have accurate information and the private right of action is one of the most important policy levers we have.

As our brief details, the way the Supreme Court has framed the question means that all federal laws that allow private rights of action absent an additional injury are in danger of being curtailed. A host of privacy laws, including the Stored Communications Act, the Video Privacy Protection Act, and the Cable Communications Policy Act, create a private right of action similar to FCRA, and could be limited by a broad ruling in this case. As with FCRA, each of these laws remains vital to protecting individual privacy today, given how much data exists about us online and the potential for privacy violations involving that data. The justices didn’t address this issue directly, but confined their discussion mostly to hypothetical laws and to FCRA itself. That may suggest that their ruling will focus on FCRA and avoid implicating other federal laws, which could be a narrow win even if the judgment is in favor of Spokeo.

With the oral argument complete, it’s now a waiting game — we expect a ruling by the end of the Court’s current term next June. The Court should preserve the ability of individuals to protect their rights under the law.

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