Lauren Gelman writes:
I’m breaking blog silence to report on an amazing decision out of the DC Circuit holding that the federal Privacy Act’s requirement that Plaintiffs show actual damages does not require pecuniary harm but can be met by a showing of emotional distress. Am. Fed’n of Gov’t Employees v. Hawley, D.D.C., No. 07-00855, 3/31/08.
[T]he plaintiffs’ alleged injury is not speculative nor dependent on any future event, such as a third party’s misuse of the data, the court said. The court finds that plaintiffs have standing to bring their Privacy Act claim.
This follows the Supreme Court’s holding in Doe v. Chao, 540 U.S. 614 (2004) that a plaintiff must prove actual damages to succeed on an alleged Privacy Act violation, however in that case, the court never defined “actual damages.”
I think this is a fascinating decision. The assertion that privacy damages are primarily financial is a very narrow one. We have already entered an age in which information is widely understood to have great value. Much of that value derives from a mind-numbing array of intrusions on seclusion, and allows for action on a poor shadow of what we used to call reputation.
As the value and use of that data grows, the costs and risks of abuse or negligence in the gathering, storage or application of that data also grows. There’s every reason to expect that the law will find a way to sort out those torts.