In the 21st century, any Internet user is able to obtain personal information such as phone number, email, address, birthday, and even the income of just about any one else. Some people post this information voluntarily about themselves on social media websites like Facebook, Twitter, or LinkedIn, while other websites were created for the sole purpose of storing and providing others with much of this information. Websites like Spokeo.com were created simply as “people search” websites to store all of this information in one place. With this easily accessible information online, there is less of a “reasonable expectation of privacy.” What are the implications of these website in the future of privacy law?
Although society enjoys the ease with which we can find so much of this information, what happens when this information is false and affects, or has the potential to negatively affect, individuals?
The Supreme Court is in the process of considering this question in the case of Spokeo, Inc. v. Robins. Thomas Robins sued defendant Spokeo, Inc. for violation of the Fair Credit Reporting Act (FCRA). Spokeo listed incorrect information about Robins including an incorrect age, marital status, employment information, education level, number of children, and wealth level. Robins argued that this affected his ability to obtain credit, employment, and insurance. However, he could not prove any actual harm.
The federal circuit courts are split on the issue of whether there needs to be injury in fact to recover from a violation of the FCRA. If the Supreme Court rules in favor of Robins, there are many possible negative effects for Internet companies. The information about Robins was arguably favorable to him, for example, by listing him as better-educated and wealthier than reality. However, a broader range of allowable suits for statutory violation would clog the courts and cause a decrease in judicial efficiency, and cost taxpayers more dollars. Even further, a single violation of the FCRA may only add up to $1,000, but this number can increase exponentially for Internet companies in the event of a class action lawsuit. This causes some concern for websites like Google, Facebook, and Yahoo. It would be difficult for Internet companies to survive when they owe millions of dollars in class action suits when class members have no suffered injury in fact.
However, a holding for Robins also brings up many questions. What would be the baseline for the type or amount of information that would have to be incorrect in order for a plaintiff to join a class action lawsuit? Where would the line be drawn for allowing plaintiffs to recover when the incorrect information doesn’t cause any injuries? Does the fact that any Internet user can opt-out of having one’s listing on the website change the decision? Organizations like the Electronic Privacy Information Center have urged the Court to hold for Robins because a holding for Spokeo “would severely limit the deterrent effect of federal privacy laws and contribute to the growing problem of data breach and identity theft in the United States.”
I argue that the Supreme Court should hold in favor of Spokeo. However, at a time when data breaches have become far too prevalent, how far can the Court go to implement a deterrent effect? A holding for Spokeo, Inc. would be a warning to all Internet companies to represent and publish correct information about Internet users. No matter the outcome, this case is likely to send shockwaves through the court system touching on Constitutional Law, Privacy Law, Data-Breach Law, and Cyber-Law issues. It is the next step in defining what exactly are one’s rights to their own information online, and how far can one go to ensure that his or her personal information is only used in a manner that he or she would like.