About Privacy? You Ask

July 30, 2021

Though the issue of privacy was not central to the recent US Supreme Court case Transunion v. Ramirez, the Court’s majority opinion may have far-reaching implications for privacy rights. The National Law Review considers, “Did the US Supreme Court Just Gut Privacy Law Enforcement?” At issue is the difference between causing provable harm and simply violating a law. Writer Theodore F. Claypoole explains:

“The relevant decision in Transunion involves standing to sue in federal court. The court found that to have Constitutional standing to sue in federal court, a plaintiff must show, among other things, that the plaintiff suffered concrete injury in fact, and central to assessing concreteness is whether the asserted harm has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. The court makes a separation between a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and a plaintiff’s suffering concrete harm because of the defendant’s violation of federal law. It claims that under the Constitution, an injury in law is not automatically an injury in fact. A risk of future harm may allow an injunction to prevent the future harm, but does not magically qualify the plaintiff to receive damages. … This would mean that some of the ‘injuries’ that privacy plaintiffs have claimed to establish standing, like increased anxiety over a data exposure or the possibility that their data may be abused by criminals in the future, are less likely to resonate in some future cases.”

The opinion directly affects only the ability to sue in federal court, not on the state level. However, California aside, states tend to follow SCOTUS’ lead. Since when do we require proof of concrete harm before punishing lawbreakers? “Never before,” according to dissenting Justice Clarence Thomas. It will be years before we see how this ruling affects privacy cases, but Claypoole predicts it will harm plaintiffs and privacy-rights lawyers alike. He notes it would take an act of Congress to counter the ruling, but (of course) Democrats and Republicans have different priorities regarding privacy laws.

Cynthia Murrell, July 30, 2021

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