Contrary to dire predictions, the privacy house is still standing following the U.S. Supreme Court’s long-awaited decision in Spokeo v. Robins on May 16, 2016. The Court ruled that a litigant must articulate a “concrete injury” in his or her pleadings in order to have standing to sue in federal court, and that alleging a violation of a pertinent statute, by itself, does hot satisfy the criteria for standing. To the relief of privacy advocates, this decision does break much new legal ground.
The spare opinion by Justice Alito treads a narrow path. Robins was lead plaintiff in a class action under the Fair Credit Reporting Act (FCRA). His complaint alleged that he learned of a request made to Spokeo, a data broker, about him, and that the profile Spokeo generated was riddled with inaccuracies. It described him as a male in his 50’s, with a wife, children and a graduate degree. None of those things was true. Except that he is male. Robin’s complaint alleged, among other things, that Spokeo “willfully failed” to comply with FCRA’s requirements to “follow reasonable procedures to assure maximum accuracy” of reports, such as the one generated about him.
The District Court dismissed his complaint for failure to properly pled “an injury-in-fact,” that he was damaged by the inaccurate profile. The Ninth Circuit reversed, holding that the allegation of a statutory violation was sufficient to confer standing. The Supreme Court reversed and sent the matter back to the Ninth Circuit for a determination as to whether Robins had sustained a “concrete injury.”
In remanding the case, Justice Alito wrote that an allegation of a statutory violation, without a real injury, is insufficient to provide standing unless Congress wrote such a provision into the statute, and there was no such provision in FCRA.
Perhaps due to a fear of a litigation tsunami based on violations of statute with no real harm, the case made for strange amicus bedfellows. Google, Netflix and Facebook filed amicus briefs in support of Spokeo. These technology companies may have believed that no core privacy interests were at risk in this case. Justice Alito lent credence to that view, writing that “’Concrete,’ however, is no synonymous with ‘tangible’ in ascertaining an injury-in-fact that would confer standing. “Real risk of harm,” he continued, can “satisfy the requirement of concreteness.”
The dissent, written by Justice Ginsburg, disputed the absence of an injury-in-fact. She noted that Robins had alleged that the errors in the Spokeo profile could affect his “ability to find employment by creating the erroneous impression that he was overqualified . . . (or) might be unwilling to relocate for a job due to family commitments. . .”
The Ninth Circuit is likely to agree and the case, which was dismissed only at the pleading stage, will continue. Stay tuned.
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