Commentary

White House Supports Consumers' Right To Sue Data Brokers

Joining a roster of privacy advocates, the Obama administration is urging the Supreme Court to rule that consumers have the right to sue data aggregators for posting incorrect information online.

This week, U.S. Solicitor General Donald Verrilli filed a friend-of-the-court brief arguing that Virginia resident Thomas Robins should be able to proceed with a lawsuit accusing the Web company Spokeo of allegedly violating the Fair Credit Reporting Act. That law prohibits credit reporting agencies from selling data about job applicants without first taking steps to ensure the information is accurate.

Robins alleged in a 2010 lawsuit that Spokeo posted inaccurate biographical information about him -- including that he was in his 50s, married with children, and employed in a professional or technical field. Robins, who was seeking a job when he filed suit, said he worried that the errors in the report would affect his job search.

Spokeo wants the lawsuit dismissed on the grounds that Robins hasn't shown how any inaccuracies harmed him. But Robins counters that Congress specifically authorized people to sue for damages when it passed the Fair Credit Reporting Act.

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A trial judge sided with Spokeo and threw out the lawsuit, but the 9th Circuit Court of Appeals reinstated the case. The Supreme Court said earlier this year that it would hear the matter.

The White House says the Supreme Court should defer to lawmakers' decision allowing private lawsuits for publication of incorrect data. "Congress could reasonably conclude that the inclusion of false information in a report ... should be treated as a legally cognizable injury to the individual consumer involved, even though the precise nature and extent of any later consequential harms may be difficult to verify in individual cases," the government argues in its 49-page brief.

The Obama administration isn't the only one weighing in on the battle. Advocacy groups, companies and trade organizations also have expressed interest in the outcome, largely because the decision could have a big impact on other lawsuits by consumers.

Google and Facebook and other Web companies filed a friend-of-the-court brief asking the Supreme Court to throw out Robins' complaint. The companies say they're getting slammed with lawsuits that accuse them of technically violating a privacy law -- like the Video Privacy Protection Act (which prohibits companies from disclosing information about people's video-viewing) or the Telephone Consumer Protection Act (which deals with unsolicited text messages). Google, Facebook and others argue that consumers shouldn't be able to pursue those types of cases unless they've been injured.

But advocacy organizations -- including the Electronic Frontier Foundation, Center for Democracy & Technology, New America's Open Technology Institute and the World Privacy Forum -- take the opposite view. They argue that Congress can authorize lawsuits for violations of privacy laws.

Without the threat of litigation, they argue, "data brokers such as Spokeo have little incentive to follow the law."

The Supreme Court will hear arguments in the case on Nov. 2.

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