There’s a true 21st-century case a-brewing at the Supreme Court, one of those unsexy legal questions with enormous potential repercussions. At heart of the matter is personal data. There’s an insane amount of it out there, on each and every one of us, and it’s all for trade, barter, and sale. But that doesn’t mean it’s all correct or true. So if some website or service goes around saying you’re someone you’re not, do you have the right to sue?
The answer is already “yes” if the misinformation causes actual harm you can point to in court. So, for example, if you’re erroneously listed in a criminal database despite having a squeaky-clean record, and that causes you to lose job offers during the background check, that’s a clear harm you can obviously sue over. But in the general sea of information, when you can’t point to a specific harm, is it still wrong of services to publish (or share) incorrect information?
That’s what the Supreme Court is now poised to decide when it hears Spokeo v. Robins in its next term.
Spokeo is, basically, a records aggregator. Anyone can use it to look up the address, phone number, email address, and social media presence of anyone else. It’s a powerful tool, not only for general research and contact but also unfortunately often used to bad ends when internet hate mobs want to chase down and harass or threaten a particular target.
The highlights of what information Spokeo promises to return on basically anyone.
Worse: its aggregated results are also often wrong, wrong, wrong. Spokeo makes no claim that all its data is valid; it merely aggregates data from other sources, after all, and can claim that the fault is in the original. And so their listings often contain incorrect data, sometimes conflating different people with the same name into a single search result.
One man, Thomas Robins, sued Spokeo after finding his own profile was wrong in a whole bunch of ways. According to the AP, Robins’s profile “incorrectly stated his age, that he had a graduate degree, was employed and married with children. In fact, Robins was unemployed and looking for work.” Robins sued Spokeo under the Fair Credit Reporting act, claiming that the incorrect information erroneously matched to him damaged his job prospects.
The first court found that Robins had no right to sue because he had no actual harms he could point to the errors causing. On appeal, the ruling was reversed, and the 9th U.S. Circuit Court of Appeals ruled that no actually, by publishing incorrect data Spokeo did violate the FCRA and Robins had the right to sue. And that brings us to Spokeo appealing right back, this time to the Supreme Court.
As SCOTUSblog explains, the Constitutional issue that brings this into the Court’s purview is a question of “whether an individual can sue based on a simple claim that a right created by federal law has been violated, without proof of an additional injury growing out of that violation.”
If Robins wins and the class action suit he’s pursuing is verified, Spokeo could face damages of $1000 per violation. Given how many millions of people the company aggregates records on, and how many potential errors are in every profile, that could easily be millions or billions of dollars. So it’s easy to see why Spokeo would want to fight this all the way to the Supreme Court.
But in our data-driven economy, where we the collective consumers are more often than not also the product being traded and sold, the case also has repercussions far beyond Spokeo.
Tech giants are closely watching the case. Facebook and Google between them are probably the two biggest personal data collectors and traders in the world, and nearly all of us interact with one or both several times daily. If they and others are going to have liability for making sure every piece of personal data they move is accurate, that would be a huge shift for them.
The case also points to basically the existential question of the 21st century economy: what are the legal, moral, and ethical rules around our data and our privacy? What burden do individuals bear? What burden do companies bear to make sure that information is entirely accurate? And where in the chain does that burden fall — on the first collector? On the resellers? On an aggregator like Spokeo?
It will be good news for consumers if businesses that trade our data need to make sure it’s right before they can sell it. But that’s just the first of many likely future challenges to face consumers and businesses in the personal-data-driven app-era market.
High Court to Consider Lawsuits Over Personal Data [Associated Press]
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