What the Europeans Need to Know About Privacy Redress in the United States

By Chris Hoofnagle

Posted on October 30, 2015


Thanks to the Privacy Bridges effort, we are having a constructive conversation at the Data Protection and Privacy Commissioners Conference about how companies can do the right thing as they operate globally. Several elephants are in the room—the Safe Harbor being most prominent. Yet, that solution cannot emerge from this conference.


Another elephant could be addressed in this forum, however: the effort of some U.S. technology companies to kill rights of redress for privacy and consumer protection law violations. On Monday, the U.S. Supreme Court will consider whether a person can sue a company that willfully violated the Fair Credit Reporting Act. At issue is whether a plaintiff has “standing,” a constitutional requirement, in cases where no economic harm is shown.


European institutions are interpreting privacy as a fundamental freedom. U.S. institutions, urged on by Facebook, eBay, Yahoo, and Google, may come to an incompatible conclusion: that plaintiffs are barred from any legal redress until they articulate a distinct and palpable injury. If this effort is successful, the plaintiff loses before discovery begins. The court cannot hear the claim. If it were to do so, it would violate the U.S. Constitution.


While we discuss bridges in Amsterdam, Facebook, eBay, Yahoo, and Google are trying to burn down the bridge to court. If these companies are successful, the Judicial Redress Act or other attempts to give Europeans standing in U.S. courts will be stillborn. And the problem will not be fixable, because the right to be free of pesky dignity or other non-economic-based claims will flow from our Constitution.


While U.S. companies are here emphasizing that the U.S. statutory framework is “equivalent” to Europe, Europeans should not lose sight of the larger issue. As I argued with colleagues, if Europeans and Americans need distinct, palpable injuries just to get into court, our statutory framework becomes illusory. Our framework could promise everything, and deliver nothing because a right without a remedy is no right at all.



The preceding is republished on TAP with permission by its author, Chris Hoofnagle, Director, Information Privacy Programs at the Berkeley Center for Law & Technology. “What the Europeans Need to Know About Privacy Redress in the United States” was originally published August 18, 2015 on the Federal Trade Commission - Privacy Law and Policy site.


Chris Hoofnagle’s new book, Federal Trade Commission - Privacy Law and Policy, is expected to be released January 2016. This post, and others from his blog, are “sidebars” pulled from his manuscript as he has been developing the book.