Information Privacy Law Scholars' Brief in Spokeo, Inc. v. Robins

46 Pages Posted: 6 Sep 2015 Last revised: 12 Sep 2015

Julie E. Cohen

Georgetown University Law Center

Chris Jay Hoofnagle

University of California, Berkeley - School of Information; University of California, Berkeley - School of Law

William McGeveran

University of Minnesota Law School

Paul Ohm

Georgetown University Law Center

Joel R. Reidenberg

Fordham University School of Law

Neil M. Richards

Washington University in St. Louis - School of Law; Yale Information Society Project; Stanford Center for Internet and Society

David Thaw

University of Pittsburgh - School of Law; University of Pittsburgh - School of Information Sciences; Yale University - Information Society Project; University of Pittsburgh - Graduate School of Public & International Affairs

Lauren E. Willis

Loyola Law School Los Angeles

Date Written: September 4, 2015

Abstract

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

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

Julie E. Cohen

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9871 (Phone)
202-662-9411 (Fax)

HOME PAGE: http://www.law.georgetown.edu/faculty/jec/

Chris Jay Hoofnagle (Contact Author)

University of California, Berkeley - School of Information ( email )

212 South Hall
Berkeley, CA 94720-4600
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

University of California, Berkeley - School of Law ( email )

344 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

William McGeveran

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://blogs.law.harvard.edu/infolaw

Paul Ohm

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9685 (Phone)

Joel R. Reidenberg

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6843 (Phone)
212-930-8833 (Fax)

HOME PAGE: http://faculty.fordham.edu/reidenberg

Neil M. Richards

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Yale Information Society Project ( email )

New Haven, CT 06520
United States

Stanford Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

David Thaw

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://www.davidthaw.com

University of Pittsburgh - School of Information Sciences ( email )

Pittsburgh, PA 15260
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Pittsburgh - Graduate School of Public & International Affairs ( email )

Pittsburgh, PA 15260-0001
United States

Lauren E. Willis

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1086 (Phone)
213-380-3769 (Fax)

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