When the Supremes get down to business for this session today they’ll be hearing one case which you’ll want to keep an eye on if you happen to use a computer at all. (I think we have everyone’s attention now.) The case is Spokeo, Inc. v. Robins and it may set some boundaries for who can or can not claim damages when their personal information is used and distributed by web companies without their permission or even their knowledge that it was done.
The suit was brought by Thomas Robins after he discovered that an online firm had collected quite a bit of his personal information and published it. Unfortunately for Spokeo, it was all wrong. (LA Times)
On Monday the justices will take up the case of Thomas Robins, a Virginia man who sued Spokeo, a Pasadena-based tech company that calls itself a “people search engine.”
Spokeo sells profiles of people drawn from data available online. When the company produced a profile of Robins, he was surprised to see himself described as married with children, in his 50s, with a graduate degree and a professional job.
None of that was true. He was 29, unmarried and unemployed. Robins sued.
What the court is being asked to decide today isn’t whether or not Spokeo should pay Mr. Robins the one thousand dollars in class action damages he is seeking. They’re going to be deciding if Robins even has standing to pursue the suit in the first place. Spokeo’s reasoning is that Robins can’t sue them for damages because he isn’t able to show that he actually suffered any damages in the first place. To the layman’s ear they may sound like they’re making a good point. They beefed up Robins’ resume considerably, granting him a post-graduate degree he does not hold and inventing a wife and children for him. (Established family life is often seen as a positive factor in hiring decisions.) The only downside is that they also made the millennial Robins fifty years old which might be a negative factor in his job search.
But as Amy Howe argues at SCOTUSblog, the Court may be persuaded that Robins has already met the bar for proving the company in the wrong under existing law.
Even if the Court ultimately agrees with Spokeo that a “real world” harm is required, Robins has two fall-back arguments. The first is that he has such a harm – to his wallet. Spokeo and Robins, the argument goes, have a legal dispute over the statutory damages that hinges on whether the company violated his rights under the FCRA. And the Court doesn’t have to decide more generally whether a plaintiff like Robins can bring a lawsuit based solely on a violation of a statute, because at a minimum Robins historically would have been able to bring these kinds of claims in a lawsuit for defamation.
Unfortunately – at least from my perspective – the court is chasing the wrong question here. They’re wrestling with whether or not data mining companies might be hit with crippling judgements every time they get someone’s information wrong and what the downstream effects of that might be. What I’d rather know is why such companies are allowed to gather and publish our information without our consent in the first place. Even if they get all their facts right (unlikely at best) they are still making a profit off of our names and data without compensating us. How is that allowable to begin with? And even if you aren’t worried about the financial aspects of it, what if you just want to maintain your privacy and don’t want yourself dumped into some huge data warehouse for everyone to dig through? It sounds as if the underlying assumption for the courts is that if you don’t want to show up on such lists then you need to essentially ban yourself from the internet. And even then there are no assurances since you will still show up in mortgage or rental records, credit reports and all manner of documents which they can apparently sift through and publish.
Personally, I hope they let Robins sue the pants off the company and perhaps send a message to the rest of them about privacy. At a minimum, everyone should be able to opt out of such lists should they wish to.