Privacy Qui Tam

69 Pages Posted: 18 Jul 2022 Last revised: 21 Nov 2022

See all articles by Peter Ormerod

Peter Ormerod

Northern Illinois University College of Law

Date Written: July 11, 2022

Abstract

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because resource-constrained regulators only rarely bring enforcement actions, and the resulting consent decrees tend to entrench the status quo.

Meanwhile, private enforcement is increasingly infeasible thanks to defendant-friendly Supreme Court decisions about the Federal Arbitration Act, Article III standing, and class action certification.

This Article proposes a hybrid approach: policymakers should enact privacy laws that authorize qui tam enforcement. A qui tam is an ancient legal action that authorizes a private plaintiff called a relator to redress an injury suffered by society, and successful relators are entitled to a portion of the recovery. A privacy qui tam is responsive to the shortcomings with both public and private enforcement: individuals are empowered to sue lawbreakers, but these suits don’t face the same obstacles as private rights of action.

Qui tam has traditionally protected collective rights, so a crucial question about the viability of a privacy qui tam is whether violations of privacy law could be considered collective injuries amendable to qui tam enforcement. Fortunately, privacy scholars in recent years have convincingly shown that privacy is a social phenomenon that requires policy intervention at a structural level. A privacy qui tam therefore operationalizes privacy theory and promises to fill the enforcement void left by overwhelmed regulators and infeasible private rights of action.

Keywords: information privacy, enforcement, qui tam, Federal Trade Commission, Federal Arbitration Act, Article III standing, class actions, private right of action, California Consumer Privacy Act, General Data Protection Regulation, Federal Rule of Civil Procedure 23, Private Attorney General Act

Suggested Citation

Ormerod, Peter, Privacy Qui Tam (July 11, 2022). 98 Notre Dame Law Review 267 (2022), Northern Illinois University College of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4159932 or http://dx.doi.org/10.2139/ssrn.4159932

Peter Ormerod (Contact Author)

Northern Illinois University College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
114
Abstract Views
480
Rank
359,898
PlumX Metrics