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Spokeo Oral Args: Is a Privacy Violation Alone Enough to Sue?

Yesterday, the Supreme Court heard oral arguments in Spokeo v. Robins, a case which could have major implications for Internet privacy litigation. Spokeo, a "people search" website, aggregates public information on individuals, from their educational levels to the cost of their house. But, whoops! Sometimes that information isn't always accurate.

When Spokeo published inaccurate information about Thomas Robins, he pursued a class action against the site for violating the privacy-focused Fair Credit Reporting Act. But besides that statutory violation, Robins couldn't point to any injury. Sure his info was wrong, but was he fired over it? Did his wife leave him? No. So, the question before the court yesterday was, then, does Robins even have any right to sue?

What Injury Is Necessary?

While it has strong privacy implications, Spokeo is primarily a case about standing, about who can sue and when. Only Justices Sotomayor and Ginsburg, Amy Howe noted on SCOTUSblog, seemed most open to the idea that Congress can create standing statutorily, without a plaintiff needing to show a concrete injury. For Justice Kagan, the question turned on how concretely the statute had identified a real world harm. The Ninth Circuit had held that there is no need for a de facto injury separate from the statutory violation.

As Justice Ginsburg points out, this is not an unheard of proposition. Trespass, without any injury besides intrusion, is enough to confer standing. Similarly, longstanding laws like the Endangered Species Act give individuals standing to sue based on their interest in seeing an animal or habitat in the future. The injury asserted need not be economic.

Justice Scalia and Roberts Remain Unconvinced

Justice Scalia was, unsurprisingly, the most critical of that view of standing. In Lujan II, the leading standing case, Justice Scalia wrote that the Constitution required concrete, discernible injuries, regardless of the provisions of a federal statute. Chief Justice Roberts, also a clear skeptic of the case against Spokeo, hypothesized a privacy bill that allowed large damages for the publication of false information. Would anyone who had their phone number listed incorrectly then be able to sue? Certainly the Constitution didn't envision such standing.

Of course, despite the technical nature of yesterday's oral arguments, there are very concrete consequences to Spokeo. Privacy advocates argue that a ruling for Robins would provide important recourse to those who have had their privacy violated online. James C. Cooper, Director of the Law and Economics Center at George Mason Law School, argues that ruling for Robins would mean that "any tech company that collects and aggregates personal data could be subjected to devastating lawsuits." Lawrence Hurley in Reuters goes even further, positing that the case could give the "conservative-leaning Supreme Court another chance to limit class action litigation."

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