GWU Legal Studies Research Paper No. 2021-11
GWU Law School Public Law Research Paper No. 2021-11
71 Pages Posted: 18 Feb 2021 Last revised: 14 Apr 2022
Date Written: February 9, 2021
The requirement of harm has significantly impeded the enforcement of privacy law. In most tort and contract cases, plaintiffs must establish that they have suffered harm. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo v. Robins and TransUnion v. Ramirez, the U.S. Supreme Court ruled that courts can override congressional judgment about cognizable harm and dismiss privacy claims.
Caselaw is an inconsistent, incoherent jumble, with no guiding principles. Countless privacy violations are not remedied or addressed on the grounds that there has been no cognizable harm.
Courts struggle with privacy harms because they often involve future uses of personal data that vary widely. When privacy violations result in negative consequences, the effects are often small – frustration, aggravation, anxiety, inconvenience – and dispersed among a large number of people. When these minor harms are suffered at a vast scale, they produce significant harm to individuals, groups, and society. But these harms do not fit well with existing cramped judicial understandings of harm.
This article makes two central contributions. The first is the construction of a typology for courts to understand harm so that privacy violations can be tackled and remedied in a meaningful way. Privacy harms consist of various different types, which to date have been recognized by courts in inconsistent ways. Our typology of privacy harms elucidates why certain types of privacy harms should be recognized as cognizable.
The second contribution is providing an approach to when privacy harm should be required. In many cases, harm should not be required because it is irrelevant to the purpose of the lawsuit. Currently, much privacy litigation suffers from a misalignment of enforcement goals and remedies. We contend that the law should be guided by the essential question: When and how should privacy regulation be enforced? We offer an approach that aligns enforcement goals with appropriate remedies.
Keywords: privacy harm, standing, concrete injury, Spokeo v. Robins, TrasnUnion v. Ramirez, statutory private rights of action
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