By Gordon Hull
Privacy plaintiffs have a hard time getting their cases heard in court for a variety of reasons. One of them is that courts lack a coherent and workable understanding of what privacy harms actually are, and how one might articulate them judicially. This problem bleeds into one of standing, which is what I will address here.
In order to get your case heard on the merits, you have to present a justiciable complaint. In U.S. federal courts, this obligation stems from Article III of the Constitution, which assigns jurisdiction to “all Cases, in Law and Equity, arising under this Constitution” (Art III, sec 2). The underlying theory is grounded in the limitation of jurisdiction to actual “cases[s] in controversy,” and grounded in a theory of separation of powers: general policy is to be made by the legislature and enforced by the executive, and the courts are there to resolve controversies that arise either as policy is enforced or between individuals. As Judge Bork (!) put it in an appellate concurrence:
“All of the doctrines that cluster about Article III -- not only standing but mootness, ripeness, political question, and the like -- relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” (cited in Allen v. Wright, 468 U.S. 737, 750 (1984)).
The Supreme Court notes, this means that “the federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” (FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990)) . Ok, so far so good.
How might a court decide standing? SCOTUS elaborates:
“Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” (Allen v. Wright, 468 U.S. at 751)
That is, standing is “restricted to litigants who can show ‘injury in fact’ resulting from the action which they seek to have the court adjudicate” (Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 473 (1982)). The “injury in fact” requirement then is that plaintiffs show that they can successfully allege an injury that is “concrete, particularized, and actual or immanent; fairly traceable to the challenged action; and redressable by a favorable ruling” (Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013).
As noted above, standing doctrine has tended to get in the way of privacy claims because the harms are often viewed insufficiently concrete or immanent. It has also gotten in the way of challenges to data collection. But a core constitutional provision is just that, so what are you gonna do?
Except it turns out that this commonsense standing doctrine, presented as a central constitutional feature, was invented whole cloth by the Supreme Court in 1970. The shift happened abruptly in Data Processing v. Camp, which begins its standing inquiry by matter-of-factly proposing that “the first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise” (397 U.S. 150, 152 (1970)) As numerous commentators have observed, this question was fabricated by the Data Processing majority, has no obvious legal precedent, and seems to derive from a 1955 law review article that coined it. Cass Sunstein writes:
“[The Court] made no effort to root that requirement in the text or history of the Constitution, or indeed in any of the Court’s precedents. As far as constitutional law is concerned, the injury in fact test was made up out of whole cloth. It appears to have come from a 1955 law review article by Kenneth Culp Davis. Davis himself purported to interpret the Administrative Procedure Act (APA), not the Constitution”
Why does this matter? Because the Data Processing case makes it clear enough that the goal was to expand access to the courts, but the more recent conservative court has used it to achieve the opposite result. Sunstein:
“There is an irony here, and it is in the foreground, not in the background. The administrative state arose out of grave dissatisfaction with private law principles. In diverse ways, it was founded on a recognition that various interests beyond those protected by the common law (including those of consumers, investors, workers, environmentalists, and victims of discrimination) deserve some kind of legal protection. To be sure, the interests of the objects of regulation, armed with private law rights, continued to matter, and would be a legitimate basis for a lawsuit. But in multiple domains, Congress explicitly decided that the beneficiaries of regulatory protection also ought to have access to court to protect their statutory rights.6 And even when Congress did not make that explicit decision, the relevant provision of the APA could easily be read to authorize such access, at least in certain circumstances. The irony is that the Court is now building the public law of standing directly on the private law foundations that Congress rejected, as a matter of principle, in creating modern statutory programs and new statutory rights.”
Sunstein has been on this for a while; as he argues as far back as 1988, “recent and still quite tentative innovations in the law of standing have started to push legal doctrine in the direction of what we may call a private-law model of standing. Under this model, a nineteenth century private right is a predicate for judicial intervention; as a result, courts may not redress the systemic or probabilistic harms that Congress intended regulatory schemes to prevent”
He emphasizes the difficulty that “injury in fact” inquiry raises around issues of causation, which he argues should be separate from jurisdictional standing review: “the causation requirements, as sometimes applied, threaten to make standing issues turn on considerable discovery, factfinding, and, worst of all, judicial speculation on the precise effects of regulatory initiatives.” (1464). As Mark Tushnet put it back in 1977, “A determination that a plaintiff lacks standing serves as a surrogate for disposition on the merits” (699).
In one of his more recent contributions to the literature, William Fletcher argues that the standing doctrine reflects the Court’s behavior as a “common law court of last resort,” and is “narrowly construing statutes with whose policies it disagrees [or that it perceives outside of social norms], using a standing doctrine that it has developed for this purpose.” (287).
Broadly construed, then, current debates in standing doctrine implicate the status of the regulatory state. If you like, they’re at the intersection of juridical and biopower in Foucauldian terms (for how I draw that line as applied to privacy, see the first part of this paper) because they have to do with how traditional doctrines of justicability are applicable to regulatory actions and biopolitical harms. And they’re partly the result of a strange 1970 case that has been stood on its head.
Thus for setting out a problem. Next time, I want to do some genealogical work on “injury in fact.”
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