William Baude on Whether a Privacy Violation is an "Injury"

Is a Privacy Violation an "Injury"?

Last week, the Supreme Court heard oral argument in an interesting and important class action case, Frank v. Gaos, about when lawyers can agree to settle a case on behalf of a class action by giving all of the money to a charity instead of the class. Today, however, the Supreme Court called for supplemental briefing on a different question -- whether the named plaintiffs have suffered an "injury" sufficient to create standing under the Court's doctrine. That question may prove to be even trickier.

The plaintiffs in Gaos complain that Google has unlawfully turned over information about their search histories. Before the Supreme Court's decision in Spokeo v. Robins, some circuits, including the Ninth Circuit, had concluded that any violation of an individual statutory right was enough for standing. As the cases said, "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." In Spokeo, the Court concluded that that formulation was incomplete, and that the right must also be "concrete" though it could nonetheless be "intangible."

During the Frank oral argument, some justices became concerned that the plaintiffs in Gaos might not have standing, because they may have alleged little more than the illegal disclosure of their private search histories. While the justices batted around the possibility of a remand, the request for supplemental briefing suggests that the Court will decide the standing issue on its own.

Read more at The Volokh Conspiracy