Brief of Center for Democracy & Technology, Electronic Frontier Foundation, New American's Open Technology Institute, and World Privacy Forum in Spokeo, Inc. v. Robins

Abstract

The issue before the Court is whether Congress may confer Article III standing upon a plaintiff simply by authorizing a private right of action based on a violation of a federal statute—in this case, the Fair Credit Reporting Act (FCRA). The Court must decide whether the judiciary will enforce the laws that Congress chooses to pass, or if the harms that those laws are intended to prevent will not be addressed unless there is additional “real world” injury. Amici support Mr. Robins’ position that a violation of a statute alone with no additional injury is sufficient to establish Article III standing, which will ensure that the FCRA’s consumer protections remain robust and enforceable. For more than 40 years, the FCRA has protected individuals from a range of specific, concrete harms caused by a powerful but opaque consumer reporting system. Congress included a private right of action in this law to ensure that individuals could vindicate their own rights and keep the credit industry and other FCRA-regulated entities—including furnishers of data—accountable. The FCRA’s carefully balanced consumer protections remain important today. We are now in a digital era in which data brokers routinely acquire, access, compile, analyze, and sell vast data stores of consumers’ personal information, transactions, and behaviors. This activity occurs with little regulation or market incentive to ensure that information is accurate, timely, and used in a manner compliant with existing law. Neither industry self-regulation nor administrative enforcement mechanisms make the FCRA’s private right of action unnecessary. Many data brokers do not consider themselves within the scope of the FCRA, even if they furnish information used by others to determine eligibility for employment, insurance, credit, housing, and other FCRA-covered purposes. Furthermore, administrative agencies have limited resources, are focused on pursuing matters to serve the general public interest, and often settle actions through consent decrees. The FCRA’s private cause of action is necessary to ensure that individuals can vindicate their own interests and litigate actions to final judgment. For these reasons, the Court should ensure that consumers may continue to pursue violations of the FCRA through private actions. If, however, the Court rules in Spokeo’s favor, it should cabin its holding narrowly to the facts of this case. This result will ensure Congress has the ability to respond to modern privacy threats and avoid the possibility of eviscerating a broad range of other statutory rights.