MAKING THE INTANGIBLE CONCRETE: LITIGATING INTANGIBLE PRIVACY HARMS IN A POST-SPOKEO WORLD

By Elizabeth C. Pritzker¹

I. INTRODUCTION

Twenty-five years ago, the Supreme Court in Lujan v. Defenders of Wildlife² declared that for a federal court to have subject matter jurisdiction in a case, the plaintiff must have Article III standing in the form of an "injury in fact" to bring the claim. Subsequently, "injury in fact" became a "bedrock" Article III prerequisite for a party invoking the jurisdictional power of the federal courts.³

Since Lujan, defendants have regularly sought to invoke the Article III "injury in fact" requirement as a shield against plaintiffs lacking tangible physical harm or monetized damages—especially against plaintiffs seeking statutory damages on behalf of a class. Such cases typically involve federal statutes designed to protect individuals from unauthorized data gathering, improper or negligent disclosure of their private information, unwanted solicitations and calls, or personal intrusions of their privacy. These statutes endow private litigants with causes of action that empower them to enforce the laws as "private attorneys general" and include statutory damages.⁴ This broad sweep of statutory power has put the question of Article III standing in the balance, raising concerns about whether Congress may grant standing to individuals who have not suffered tangible injury, in the form of a physical or economic harm, from the malfeasance at issue.