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What the Supreme Court's Spokeo Case Means for Privacy, Tech

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By Casey C. Sullivan, Esq. on November 03, 2015 10:43 AM

Yesterday, the Supreme Court heard oral arguments in Spokeo v. Robins, the most important privacy and technology case of the term, one that could help determine the future of Internet privacy litigation. The question at its heart: do those who've had their privacy violated online, with no further harm, even have the right to sue?

If the Court says no, it will be a major blow to privacy advocates in particular and the plaintiff's bar generally. If the Supreme Court says yes, expect scads of new class action lawsuits to be filed against companies which deal with personal information online.

Spokeo: Not Just for Stalkers

To understand Spokeo the case, it helps to understand Spokeo the company. Spokeo is a so-called "people search" website that gathers public information about individuals and lists it online. Type in the name of a friend or stranger and Spokeo will tell you their age, siblings, location, even how many bathrooms are in their home. (Go ahead, look yourself up.) For a price, Spokeo will give you court records, full addresses and personal phone numbers.

Except Spokeo's information isn't always accurate. Thomas Robins, for example, found that almost all the information Spokeo published about him was inaccurate. The company said he had a graduate degree, a lot of wealth, and a wife and children. In reality, Robins was unemployed, desperately looking for work, and worried that Spokeo would give potential employers faulty information. Robins filed a class action against Spokeo, alleging that his rights were violated under the Fair Credit Reporting Act, which requires consumer reporting companies to take reasonable steps to make sure the information they disseminate is accurate.

Is a Privacy Violation Enough to Stand On?

Five years later and that case is now before the Supreme Court. Spokeo is arguing that Robins does not meet the standing requirements of federal court. Specifically, the company says that because Robins wasn't actually "injured" he cannot sue. Sure the information might have been wrong, but Robin can't point, for example, to an employer who passed him over. There's no injury in fact.

At oral arguments, Chief Justice Roberts and Justice Scalia were most receptive to this argument. If it prevails, those who have had faulty information published online will be largely out of luck. Tracing false online information to an actual injury is incredibly difficult. As Justice Alito noted, there is little evidence that anyone even searched for Robins on Spokeo.

A finding that Robins lacks standing would also insulate tech companies, everyone Spokeo to Facebook to Google, from potentially expensive litigation. According to James C. Cooper, Director of the Law and Economics Center at George Mason law school, a ruling for Robins would allow lawyers to "extort multimillion dollar settlements" over only minor mistakes.

Robins, for his part, argues that a statutory injury is enough. The law creates a statutory right whose violation alone can give rise to standing. At oral arguments, Justices Sotomayor and Ginsburg seemed most receptive to this argument. Further, Robins argues, he was actually injured, through the stress, anxiety, and worry the listing caused him. As Justice Kagan noted, "If someone did it to me, I'd feel harmed. And I think that if you went out on the street and you did a survey, most people would feel harmed."

It's too early to tell which way the Court is leaning. As Justice Breyer noted in September, oral arguments have only a small effect on the eventual outcome of a case.

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