Standing after Snowden: Lessons on Privacy Harm from National Security Surveillance Litigation

27 Pages Posted: 26 Sep 2017 Last revised: 27 Jan 2018

See all articles by Margot E. Kaminski

Margot E. Kaminski

University of Colorado Law School; Yale University - Yale Information Society Project; Yale University - Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship

Date Written: September 24, 2017

Abstract

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be “concrete,” “particularized,” and “actual or imminent” — all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and harms arising from data analytics have all been taken seriously in recent national security cases. This Article closes by noting that no discussion of corporate responsibility and data theft can be complete without addressing the roles corporations play in challenging the national security state.

Keywords: Privacy, Standing, Cybersecurity, Article III Standing

JEL Classification: K13, K39

Suggested Citation

Kaminski, Margot E., Standing after Snowden: Lessons on Privacy Harm from National Security Surveillance Litigation (September 24, 2017). DePaul Law Review, Vol. 66, No. 413, 2017; U of Colorado Law Legal Studies Research Paper No. 18-2. Available at SSRN: https://ssrn.com/abstract=3042351

Margot E. Kaminski (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

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

University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )

Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States

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