46 Pages Posted: 6 Sep 2015 Last revised: 12 Sep 2015
Date Written: September 4, 2015
This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and to relieve pressure on public enforcement authorities. The Petitioner’s claim that Respondents cannot pursue it for its violations of the FCRA would unravel that bargain, preserving consumer reporting agencies’ broad immunity from suit while diminishing incentives to handle data fairly.
In an era in which employers increasingly practice “hiring by algorithm,” inaccurate consumer reports — even those that contain putatively favorable inaccuracies — can cause real economic injury to consumers. Such inaccuracies can lead employers to screen out prospective employees as overqualified or too well-paid. Alternatively, employers may suspect resume inflation and dishonesty if background checks reveal inconsistencies or unearned honors.
More generally, lawmakers historically have recognized and responded to non-economic and dignity-based injuries by creating rights of action to remedy such wrongs in court. The FCRA follows that pattern. In enacting the FCRA, Congress did not create injury but rather recognized the injury worked by improper disclosure and mishandling of information. Petitioner’s argument to the contrary threatens to upset numerous privacy, consumer protection, and other laws.
Keywords: Article III standing, injury, harm, privacy, Fair Credit Reporting Act, FCRA, data brokers, modern hiring practices, consumer reporting, inaccuracy, background checks
JEL Classification: D8, D81, D82, D18, G28, K2, M51, J6
Suggested Citation: Suggested Citation
Cohen, Julie E. and Hoofnagle, Chris Jay and McGeveran, William and Ohm, Paul and Reidenberg, Joel R. and Richards, Neil M. and Thaw, David and Willis, Lauren E., Information Privacy Law Scholars' Brief in Spokeo, Inc. v. Robins (September 4, 2015). UC Berkeley Public Law Research Paper No. 2656482; Minnesota Legal Studies Research Paper No. 15-27; Fordham Law Legal Studies Research Paper No. 2656482; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2015-32; U. of Pittsburgh Legal Studies Research Paper No. 2015-32. Available at SSRN: https://ssrn.com/abstract=2656482 or http://dx.doi.org/10.2139/ssrn.2656482
By James Cooper