Jamie Kelly Jul. 12, 2016, 9:35am


GREEN BAY, Wis. (Legal Newsline) —Nearly two months after a U.S. Supreme Court decision about when people are allowed to sue over privacy violations or the spreading of incorrect information, lower court rulings are not coming to any consensus, according to a privacy advocate.

Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC), a consumer advocacy organization, said as many as a dozen decisions each week are coming down from the federal bench that invoke the May Supreme Court case Spokeo v. Robins, but that those decisions are all over the map.

“Part of the confusion comes from the court’s own decision,” Rotenberg told Legal Newsline, pointing to the dissent by Justice Ruth Bader Ginsburg that claimed there was no reason to send the case back to the U.S. Court of Appeals for the Ninth Circuit because the plaintiff had already shown he’d met the test for standing under the law.

In June, a U.S. District Court judge dismissed a lawsuit by Derek Gubala, a consumer who said that cable provider Time Warner had improperly retained his personal information in violation of the Cable Communications Policy Act. Time Warner claimed that Gubala’s allegation didn’t meet the standards for an injunction and argued that he hadn’t shown he had standing to sue in the first place.

In her decision, U.S. District Court Judge Pamela Pepper wrote that while Gubala had satisfied the requirement to show an injury, he didn’t make a claim that he’d suffered a “concrete” injury, as the Spokeo decision required.

“A statement that consumers highly value the privacy of their personally identifiable information, however, does not demonstrate that the plaintiff has suffered a concrete injury,” she wrote.

“He does not allege that the defendant has disclosed his information to a third party. Even if he had alleged such a disclosure, he does not allege that the disclosure caused him any harm. He does not allege that he has been contacted by marketers who obtained his information from the defendant, or that he has been the victim of fraud or identity theft. He alleges only that the CCPA requires cable providers to destroy personal information at a certain point, and that the defendant hasn’t destroyed his. These allegations are almost identical to the allegations the plaintiff made in Spokeo.

"In fact, one might argue that the Spokeo plaintiff was a bit closer to alleging a concrete injury, because the defendant wasn’t just keeping his information; it was publishing, to anyone who viewed the website, inaccurate information. The plaintiff in this case does not allege that the information the defendant retains is inaccurate, nor does he allege that the defendant has published it, or made it available, to anyone.”

Rotenberg said EPIC is planning for file an amicus curiae brief in the Gubala case, which is being appealed to the Seventh Circuit. Courts are erring when they combine the idea of injury and harm, he said.

“Consequential harm is the basis of the legal dispute,” he said. “It's why you have a trial.”

The lack of clarity around what makes a concrete injury, which would give a plaintiff standing, he said, is still tripping up courts.

“The (Supreme Court's) decision hasn't helped lower courts clarify what's required to establish standing,” Rotenberg said.

Wisconsin Eastern District Court Case no. 2:15-cv-01078

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