52 Pages Posted: 19 Feb 2021 Last revised: 30 Oct 2023
Date Written: January 19, 2021
Courts struggle with how to identify and assess privacy harm and privacy injuries. This uncertainty has produced a circuit split (and lower court split) on the requisite privacy injury sufficient for federal standing, recently addressed by the Supreme Court, albeit poorly, in TransUnion. This Article provides a framework for distin-guishing which actions involve harm to people’s privacy interests and which do to other interests. It provides courts with guidance to assess privacy injuries and proposes a solution to the circuit split that satisfies constitutional requirements without gutting private rights of action.
To address privacy standing while navigating Supreme Court case law hostile to privacy claims, federal courts should do three things. First, inquire whether someone faced a loss of privacy. Sec-ond, identify whether such a loss produced privacy harm by looking at normative aspects. Third, determine whether from such harm stems an actionable privacy injury by looking at tort law and statu-tory privacy to find whether there is a common law wrong or statu-tory wrong.
This Article’s approach has theoretical and practical benefits. Theoretically, it sheds light on the relationship between privacy loss and actionable injuries. It is well-suited for evaluating grey areas by showing how privacy claims can be evaluated on a continuum. Practically, it gives courts a tool to better identify and navigate pri-vacy harm, which is an increasingly relevant impediment to private rights of action in federal statutory privacy and which courts have manifested they need.
Keywords: Privacy law, privacy harm, class actions, privacy class actions
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