The “new age” of internet and dispersed private data is not so new anymore but that doesn’t mean the law has caught up. A few years ago, plaintiffs’ cases naming defendants like Google, Apple, and Facebook were at an all-time high but now, plaintiffs firms aren’t interested anymore. According to a report in The Recorder, a San Francisco based legal newspaper, privacy lawsuits against these three digital behemoths have dropped from upwards of thirty cases in the Northern District of California i 2012 to less than five in 2015. Although some have succeeded monumentally—with Facebook writing a $20 million check to settle a case over the fact that it was using users’ images without their permission on its “sponsored stories” section—this type of payout is not the majority. One of the issues is that much of the law in this arena hasn’t developed yet. Since there is no federal privacy law directly pertaining to the digital realm, many complaints depend on old laws like the Electronic Communications Privacy Act and Stored Communications Act (1986) as well as the Video Privacy Protection Act (1988). The internet and its capacities was likely not the target of these laws—instead they were meant to prohibit such behavior as tapping a neighbor’s phone or collecting someone’s videotape rental history.
Further, it seems unavoidable now to have personal data somewhere somehow. Privacy lawsuits attempting to become class actions have a difficulty in succeeding in a similar way that data breach class actions do: the plaintiffs face the challenge of proving concrete harms. In a case later this year, Spokeo v. Robins, the Supreme Court may change this area of law because it will decide whether an unemployed plaintiff can sue Spokeo for violating the Fair Credits Reporting Act because Spokeo stated that he was wealthy and held a graduate degree. The issue will turn on proving actual harm. Companies that deal with private information on a consistent basis should protect themselves by developing privacy policies that, at the very least, may limit their liability. The reality is that data is everywhere and businesses will constantly be finding creative and profitable ways to use it.
To keep up with the Spokeo v. Robins case, check out the SCOTUSblog here.