Standing and Privacy Harms: A Critique of TransUnion v. Ramirez
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ARTICLE SUMMARY
The Supreme Court has ruled that consumers lack standing under the Fair Credit Reporting Act (FCRA) until their credit reports were sent to third-party businesses. The Court’s test for standing is unsatisfactory.
POLICY RELEVANCE
Congress intended to give consumers a right to sue for any violation of the FCRA.
KEY TAKEAWAYS
- In TransUnion LLC v. Ramirez, the Supreme Court considered the issue of consumer standing and privacy harm under provisions of the FCRA creating a private right of action against those who fail to comply with FCRA requirements.
- In TransUnion, a class of 8,185 plaintiffs sued TransUnion for falsely labelling them as potential terrorists in their credit reports, arguing that TransUnion violated the FCRA by failing to ensure the reports’ accuracy and failing to disclose to the plaintiffs all the information in the reports.
- The Supreme Court ruled that only class members whose credit reports had been sent to third-party businesses (1,853) had a sufficiently concrete injury-in-fact to have standing to sue, despite Congress's explicit grant of a private right of action under the FCRA for any violation of the FCRA.
- The Supreme Court's ruling calls for plaintiffs to show a concrete injury, but cannot come up with a concrete test; it is a "know it when you see it" rule.
- The standing rule is inconsistent with recognition of standing in copyright cases.
- The test looks to traditional rights under the common law.
- The common law recognizes privacy rights such as the tort of intrusion upon seclusion.
- The common law is not static; it is cobbled together and lacks clarity.
- The standing rule is inconsistent with recognition of standing in copyright cases.
- The tort of intrusion upon seclusion does not require the dissemination of information to a third party; the Supreme Court should not require dissemination as a requirement for suit under the FCRA.
- Privacy violations are harmful in ways that the courts have failed to recognize.
- Data quality harms can cause people to lose out on loans or jobs.
- Consumers struggle to learn of errors in their reports, as did the plaintiffs in TransUnion.
- Privacy harms can cause emotional distress.
- Data quality harms can cause people to lose out on loans or jobs.
- Congress included a private right of action in the FCRA in exchange for limiting state defamation and privacy law claims against credit reporting organizations; the Supreme Court's decision in TransUnion nullified Congress's power to protect consumers.
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About Daniel J. Solove
Daniel J. Solove is the Eugene L. and Barbara A. Bernard Professor of Intellectual Property and Technology Law at the George Washington University Law School. He is an internationally-known expert in privacy law.
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About Danielle Citron
Danielle Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the University of Virginia School of Law. She writes and teaches about privacy, free expression and civil rights. She is an Affiliate Scholar at the Stanford Center on Internet and Society, Affiliate Fellow at the Yale Information Society Project, Senior Fellow at Future of Privacy, Affiliate Faculty at the Berkman Klein Center at Harvard Law School, and a Tech Fellow at the NYU Policing Project.
