If you look up my name on the “people search engine” Spokeo.com, you’ll get four results. They will tell you that I’m 27, 34, or 57 (I’m 27); that I’ve lived in New Jersey, Connecticut, and Manhattan (true); and that I have a 29 year-old sister. (He’s my brother.) You can also find a misspelled version of my high school email address and a mix of accurate and inaccurate information on places I used to live.
Spokeo is to searches what shrimp boats are to fishing: it indiscriminately trawls online public records and dumps the unsorted haul into users’ laps. In 2012, the Federal Trade Commission found that Spokeo’s methods ran afoul of the Fair Credit Reporting Act, which requires “consumer reporting agencies” to try to ensure accurate reports. Spokeo agreed to pay an $800,000 fine and submit compliance reports to the FTC for twenty years.
But it’s not out of the woods yet. Next Monday, the Supreme Court will hear oral arguments in Spokeo v. Robins, a five-year-old class action lawsuit seeking damages for Spokeo’s FCRA violations. Your heart probably won’t break for the lead plaintiff, Thomas Robins: he complains that Spokeo listed him as married with children when he was single and as wealthier and better-educated than he really was. That’s not exactly the stuff of libel. But the FCRA, like many federal laws, contains a “statutory damages” provision that lets people sue for a fixed amount—in this case, up to one thousand dollars—for willful violations of the law. Whether the false information was positive or negative is irrelevant.
Spokeo claims that letting Robins sue under such a scheme is unconstitutional. The Constitution has long been interpreted as limiting the right to sue in federal court to people who have “standing,” meaning, basically, skin in the game. (If you get hit by a car, you have standing to sue the driver, but I don’t.) According to Spokeo, standing requires “real-world harm” or “concrete injury.” Since Robins can’t point to any negative consequences from the false reports—he’s suing purely based on the violation of a statute—he doesn’t have standing.
Robins contends that when Congress passes a law creating an individual legal right—like the right not to have false personal information posted online—violation of that right is itself the concrete injury necessary for standing. The report, after all, was about him, not about someone else. (He also claims, less convincingly, that the false information did cause him real-world harm in Spokeo’s sense.)
Spokeo’s position may seem intuitive: why should you have a right to sue if nothing bad happened? But our legal system is actually full situations in which standing to sue doesn’t require physical or financial harm. If you trespass on my property, I can sue without showing you caused any damage. Under copyright law, if you plagiarize this article, Washington Monthly can recover whatever profits you make, even if your plagiarism brought welcome publicity. If my contract says I have to pay $100 for a missed deadline, and I submit the article one minute late, Washington Monthly is entitled to sue for its $100.
In short, there are lots of everyday situations in which the mere violation of a legal right gives someone standing. Spokeo tries to dismiss some of these examples by arguing that they actually are real-world injuries, but it can’t explain why an inconsequential contract breach is a “concrete harm,” while posting false information about someone online isn’t. An amicus brief filed by law professors in support of Robins explains that the only conceivable difference is that the law of contracts comes from English common law. The common law was developed by judges, while the FCRA is a recent creation of Congress. “All that [Spokeo] appears to say,” the professors conclude, “is that legislatively created rights are an inferior set of rights that do not count.”
In other words, the legal question in Spokeo v. Robins isn’t really whether someone can sue without showing a real-world injury. The real question is, who decides what counts as an injury in the first place: judges or Congress?
Historically, the answer has been both: Congress has always been able to create legal rights and give people the ability to sue to protect those rights. Under the Fair Housing Act, you can sue someone for lying about whether an apartment is available even if you never planned to rent it. The Freedom of Information Act lets you challenge the government’s refusal to share public records without having to explain why you need them. As Justice Anthony Kennedy wrote in a 1992 standing case, “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”
If the law is so clear—the lower court ruled for Robins in a brisk eleven pages— why did the court agree to hear Spokeo? Why do some observers think the five conservative justices, including Kennedy, are likely to endorse Spokeo’s theory, as they seemed poised to in a similar case in 2011 that was mysteriously dismissed?
Because Spokeo isn’t about standing; it’s about class action lawsuits. And the court’s conservatives don’t like class action lawsuits.
In recent years, the Roberts Court has made it much harder to bring class actions, most notably in a pair of 5-to-4 decisions from 2011 upholding mandatory class-action arbitration waivers in consumer contracts and raising the bar for groups to form a class. While Spokeo is technically about standing, anxiety over class actions is a prominent theme in Spokeo’s briefs, as well as the many supporting briefs filed by technology giants (including Facebook and Google), media companies (including NPR and Time, Inc.), and industry groups. They argue that letting people join together without making them show that they all suffered an actual loss is a dangerous idea: Thanks to the reach of modern communication technologies, it will lead to classes of millions of plaintiffs. In this telling, the combination of class action lawsuits and statutory damages allows cunning plaintiffs’ lawyers to terrorize corporations into settling frivolous suits with the threat of billions in damages. As Justice Antonin Scalia put it in the 2011 arbitration case, “Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.”
That may be right. The tech companies’ brief cites a litany of recent cases in which a win for the plaintiffs could have wiped the defendant out. In one suit against Google, the judge observed that “the full amount of statutory damages … is likely in the trillions of dollars considering the size of the class.” (Google settled for $8 million.)
So maybe class actions do need to be reined in. Or maybe consumers actually need the threat of an apocalyptic verdict as a way to keep corporations from misusing our personal data. Either way, those are policy arguments, not legal arguments. As Robins’s brief puts it, perhaps hopefully, the Supreme Court “decides cases according to neutral principles—not based on whether class actions are good or bad. If Spokeo believes legislative changes regarding class-action procedures are needed, it should address those complaints to Congress.”
Spokeo is asking the Court majority to restrict Congress’s power to solve novel problems, and to do so at a moment when that power seems most valuable. The growth of the Internet has given rise to invasions of privacy and identity that don’t fit neatly into traditional legal categories—as, for example, when Facebook uses your profile in advertisements to your friends. Freezing the definition of “harm” at whatever counted in 18th-century England seems like the exact wrong response to technological change.
Thomas Robins’s complaint over being listed as married and rich when he was actually single and unemployed may sound frivolous. But as the law professors’ brief points out, “An individual may well care more about Spokeo publishing false but arguably positive credit and employment information about him to the whole world than he cares about a trespasser’s harmless entry upon his land. An applicant can lose the job for being over-qualified; a suitor can lose a woman if she reads that he is married.”
You know who would agree? Spokeo. “Thanks to Spokeo, I found out that I was dating a married man and it broke my heart,” reads a testimonial featured under my search results. “This website was very helpful indeed.”