Stuck in Wet Concrete: The Supreme Court Tells the Ninth Circuit to Rethink What Harms Our Privacy

By: Tim Sparapani

The US Supreme Court has just made the law of privacy in the US about as settled as wet cement. Now, neither consumers nor companies handling consumer data know where things stand.

This all came about when a data broker – a company that gathers data about individuals, typically without their knowledge or consent, and then resells that data – created a file of wholly inaccurate information about an individual for resale. Upon learning about the data broker, Spokeo’s, actions the individual sued Spokeo citing a violation of his rights under the Fair Credit Reporting Act. That federal statute creates a right to sue for violations. The trial court, nevertheless, dismissed the case but the US Court of Appeals for the Ninth Circuit allowed it to proceed. The Supreme Court overturned that decision and sent the case back for additional consideration because the Ninth Circuit had not determined whether the plaintiff’s alleged injury was sufficiently real, tangible, or, what it deemed “concrete” enough to meet Constitutional standards for sustaining a lawsuit.

The result of effectively a non-decision by the US Supreme Court coupled with it providing the barest of guidance has created tremendous privacy law controversy. Now a debate is raging in Washington and in the offices of General Counsels of corporations and plaintiffs attorneys nationwide about what it takes to satisfy this vague standard. Pitched battles are being waged to influence the interpretation of that non-decision and influence what happens next because so much is at stake in a time when our economy is driven by identifying and unlocking value from consumers’ data.

How do we know when a company’s actions using a consumer’s data – especially erroneous data – harmed that consumer’s privacy? The whole debate will turn now on the definition of the term “concrete.” It’s a word that’s hard to lock down. Dictionaries provide only slightly more help than the thin guidance provided by the US Supreme Court. “Concrete”, an adjective meaning, “based on sure facts or existing things rather than guesses or theories.” Cambridge English Dictionary. “Specific particular. Real, tangible.” Merriam Webster’s Dictionary.

This non-decision has corporate America celebrating because fewer privacy cases will be successful. Influential privacy and consumer advocates, in contrast, argue that giving the lower court a do over, in effect, changes nothing. The truth lies somewhere in between, of course.

This is, no doubt, a blow for plaintiffs trying to bring lawsuits. By forcing people who want to sue to describe a tangible injury – and perhaps barring ephemeral or hard to explain or quantify privacy harms, even when Congress created a statutory right to sue – the barrier is now higher to successfully sue to vindicate privacy invasions. While that’s not the end of all suits regarding privacy as some have erroneously claimed, it does mean that some privacy cases that would have gone forward in the past will not make the cut. That surely means that some not-well-articulated but nonetheless important privacy harms will go unaddressed in the courts.

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