Spokeo Ruling Gives Few “Concrete” Answers on Privacy Rights

Written by G.S. Hans

It may be a truth that in Supreme Court cases, tricky issues lead to tricky opinions. That was certainly the case in yesterday’s decision in Spokeo v. Robins, which concerned “standing” — the legal doctrine detailing when people get to file lawsuits. But at oral argument last November, it became clear how many other issues were implicated. Was this also a case about privacy rights? Or the Fair Credit Reporting Act (FCRA)? Or class action lawsuits? The opinion limits itself to the standing question, disagreeing with the Ninth Circuit’s analysis (and the position of CDT’s amicus brief, which was cosigned by EFF, the Open Technology Institute, and the World Privacy Forum) and articulating an apparently new test for standing that raises more questions than it answers. In effect, there is enough fodder here for lower courts, scholars, and advocates to parse out for years.

First, the immediate effect: the Court has effectively told the Ninth Circuit to try again in this case with a test for proving standing. Standing requires an injury-in-fact; an injury-in-fact requires, among other things, concreteness and particularization. Justice Alito’s majority notes that those are two distinct elements, with concreteness requiring “something” beyond a statutory provision. All these terms of art have precise legal meanings, which can lead to some surprising moments in the opinion, such as “intangible injuries can nevertheless be concrete.” What this effectively means is that merely demonstrating that someone violated the language of a statute is not enough to get to court. You need something more.

In an era with so much information existing about each of us online, protecting privacy rights under the law will remain important

Unfortunately, there is a lack of clarity on what that something is. The majority opinion notes that Congress can create standing for intangible harms not previously recognized as law — which is good. But the opinion also says that rights for intangible harms created by statute may not necessarily be sufficient on their own to provide standing. So in effect, sometimes Congress can create a right, but there has to be some injury beyond that right to file a claim. Some things Congress identifies are injuries on their own, and some things are not. Where the line falls is unclear, and “what qualifies for a sufficient injury” will long be debated.

There are some troubling statements with implications for privacy rights in the majority opinion. For example, the Court suggests that an incorrect ZIP code, and nothing more, in this case would not be enough for standing. But ZIP codes, on their own, were used for redlining housing districts to keep out African-American families, which we would now consider a clear violation of individual rights. This demonstrates that attempting to parse out what constitutes a legitimate injury, and what does not can be extraordinarily difficult.

It’s for that reason that our amicus brief argued that a deferential view to Congress’ legislative and policy choices was appropriate in this case, and indeed in many cases implicating privacy. As we described, Congress held extensive hearings to gather a great deal of evidence on how best to craft FCRA. Respecting the choices made in legislative language, especially when protecting intangible interests like privacy, would be the most prudent course of action for the Court to take.

Indeed, in her dissent Justice Ginsburg pushed back against the majority’s characterization of what happened to Robins, highlighting our argument that Spokeo’s errors could have certainly implicated Robins’ interests and noting that FCRA was designed precisely to remedy the situation that arose in this case. The debate among the three opinions in this case will likely play out in future cases and among advocates and professors. But in an era with so much information existing about each of us online, protecting privacy rights under the law will remain important — something we hope the courts acknowledge in future cases.

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