Information Privacy Law – Privacy Blog Assignment
By: Rachel Kultala
In November, the Supreme Court heard arguments in Spokeo v. Robbins. Robbins sued Spokeo under the FCRA because his profile on Spokeo included false information. Although Spokeo was unemployed at the time, his profile on Spokeo showed that he was employed. Additionally, the profile listed incorrect information regarding Robbins’ age, marital status, wealth, and education. The main issue in the case is whether Robbins had standing; the district court found that Robbins had failed to allege an injury in fact, while the circuit court held that alleging a violation of the FCRA was sufficient to establish standing.
After the Spokeo decision provided in the casebook, Spokeo changed its policies and provided a FAQ on its site about the FRCA. According to Spokeo, its data is not intended to be used to determine eligibility for employment or credit. Spokeo insists that its data is not intended for any purpose covered by the FCRA. This case, if Robbins is found to have standing, could provide answers for the questions raised after the Spokeo consent decree. In particular, what effect can Spokeo’s intent regarding how its data will or should be used have on whether it qualifies as a consumer reporting agency under the act? Although Spokeo was apparently able to unwittingly trigger the FCRA, is it also possible to trigger the FCRA while expressly disclaiming any covered purpose? These questions will not be answered by the Supreme Court, but could be addressed by the district court if Robbins has standing.
The FCRA’s creation of a private right of action is also at stake in this case. If the court holds that Robbins lacks standing, consumer advocacy groups fear that the private right of action under the FCRA will become completely ineffectual. Robbins has alleged that he did not receive offers of employment due to the mistakes in his profile. Tech companies worry that a ruling that Robbins has standing to sue will result in a flood of no-injury litigation. The FCRA’s provision of statutory damages gives an (very small) incentive for litigation, even when actual damages are minimal. However, in class actions, like the current case, the cumulative damages for the whole class could be substantial.