An Outhouse Without Internet: Privacy’s Last Refuge
We are quite confused these days as to what privacy is and how much we want it. If you are walking down the street and, unsolicited, your phone texts you that the widget that you have been shopping for is on sale, 50% off, at the store 20 feet away, you might find the technology “creepy” but you might blithely overlook that twinge of disquiet about our ubiquitous digital overlord. You might just pounce on that bargain, right? I would suggest to you that most Americans would without too much concern, if any, and maybe most people everywhere.
But let’s say you take your “right to be left alone” more seriously. Let’s say that you go out of your way to avoid such “invasions of privacy.” And let’s say you sue the sender of that signal to your phone for invasion of privacy. And let’s say the sender of that signal actually has a posted “privacy policy” and sending that signal to you actually violated the sender’s own policy.
Can you sue? For what? What is your harm? How have you been damaged? It turns out that it might not be so easy. In a putative class action, Carlsen v. Gamestop, the defendant skated free on a motion to dismiss recently because, U.S. District Court Judge Donovan W. Frank found that the plaintiff had no standing. In Carlsen, the issue was not an “unwelcome ping” on the plaintiff’s phone. It was the defendants’ website having passed on personal information about the plaintiff to Facebook even though the website privacy policy said it “does not share personal information with anyone.” So, what if it did? What are the damages? The Court held that the plaintiff had not sufficiently pled “injury in fact” and therefore had no standing to bring his action against the defendants. How much confidence can we have in a posted privacy policy if you must show your injury before you can compel the on-line resource to comply with it?