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Standing to sue trips up privacy suit
STEVEN P. GARMISA
Law Bulletin columnist
Published: April 27, 2017
Eight years after Derek Gubala canceled his contract with Time Warner Cable, he found out the company still had the personal information he provided when he signed up as a customer — including his Social Security number, date of birth and credit card data.
Alleging Time Warner violated Section 551(e) of the Cable Communications Policy Act — and that Section 551(f) authorized a lawsuit — Gubala filed a class-action complaint in federal court.
Section 551(e) says a cable company “shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information [from the customer] … or pursuant to a court order.”
And Section 551(f)(1) says “any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States [D]istrict [C]ourt.”
Gubala originally requested damages and an injunction, but he dropped the demand for money.
The district judge in Wisconsin granted Time Warner’s motion to dismiss based on lack of standing.
Affirming, the 7th U.S. Circuit Court of Appeals explained:
“A ‘concrete’ interest in prevailing in the case … is the sine qua non of ‘standing to sue.’ Gubala’s problem is that while he might well be able to prove a violation of [S]ection 551, he has not alleged any plausible (even if attenuated) risk of harm to himself from such a violation — any risk substantial enough to be deemed ‘concrete.’” Gubala v. Time Warner Cable, No. 16-2613 (Jan. 20, 2017).
Here are highlights of Judge Richard A. Posner’s opinion (with omissions not noted in the text):
We can assume at least tentatively that Time Warner had violated the statute by failing to destroy the personally identifiable information of a person who had subscribed to its service a decade earlier and had canceled his subscription after two years.
Gubala knew of the violation, and he may have feared that despite its denial his personal information might have been stolen from Time Warner or sold or given away by it, and if so the recipient or recipients of the information might be using it, or planning to use it, in a way that would harm him.
Although it’s plausible that he feared this, he never told us that this is what he was worried about. His only allegation is that the retention of the information, on its own, has somehow violated a privacy right or entailed a financial loss.
There is unquestionably a risk of harm in such a case. But the plaintiff has not alleged that Time Warner has ever given away or leaked or lost any of his personal information or intends to give it away or is at risk of having the information stolen from it.
It’s true that Section 551(f)(1) provides that “any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States [D]istrict [C]ourt,” but Gubala has presented neither allegation nor evidence of having been “aggrieved” by Time Warner’s violation of Section 551(e) — no allegation or evidence that in the decade since he subscribed to Time Warner’s residential services any of the personal information that he supplied to the company when he subscribed had leaked and caused financial or other injury to him or had even been at risk of being leaked.
All he’s left with is a claim that the violation of Section 551(e) has made him feel aggrieved. So a claim for damages would get him nowhere because the damages could not possibly be quantified and anyway are not even alleged, and as for his chosen alternative of seeking injunctive relief in lieu of damages, having not alleged that he’s in fact aggrieved by Time Warner’s statutory violation he can no more establish irreparable harm (the condition for obtaining such relief) than harm reparable by an award of damages.
The district judge was right, in these circumstances, to rule that the plaintiff does not have standing to sue.
Article III, Section 2, [C]lause 1 of the U.S. Constitution authorizes the federal judiciary only to decide cases or controversies (the two terms have been treated as synonyms) arising under federal law or within the diversity jurisdiction.
Even if there is a case — a lawsuit — it is not justiciable under federal law unless the plaintiff has a “concrete” interest in prevailing in the case, for such an interest is the sine qua non of “standing to sue.”
Gubala’s problem is that while he might well be able to prove a violation of Section 551, he has not alleged any plausible (even if attenuated) risk of harm to himself from such a violation — any risk substantial enough to be deemed “concrete.” See Spokeo v. Robins, 136 S. Ct. 1540 (2016) — also Braitberg v. Charter Communications, 836 F.3d 925 (8th Cir. 2016), a case very similar to this one, litigated on behalf of the plaintiff by the same lawyer who is representing Gubala in the present case.
The type of interest asserted in Braitberg and the present case is not enough to establish standing, as otherwise the federal courts would be flooded with cases based not on proof of harm but on an implausible and at worst trivial risk of harm.
In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme Court said that standing is not “an ingenious academic exercise in the conceivable, but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist.”
There’s nothing like that in this case.
We’re not even told whether Time Warner has ever been found to have violated Section 551, or that any other cable company has been, for that matter.
Given the requirement of standing, Gubala can no more sue than someone who, though he has never subscribed and means never to subscribe to a cable company, nevertheless is outraged by the thought that Time Warner and perhaps other cable companies are violating a federal statute with apparent impunity.
One is put in mind of John Stuart Mill’s famous distinction in “On Liberty” (1859) between what he called “self-regarding acts” and “other-regarding acts.”
The former involve doing things to yourself that don’t harm other people, though they may be self-destructive. The latter involve doing things that do harm other people. Mill thought government had no business with the former (and hence — his example — the English had no business concerning themselves with polygamy in Utah, though they hated it).
For all we can know Time Warner may be losing money by cluttering up its files with old subscription information and opening it to accusations of violating the Cable Communications Policy Act. That’s its business. What Gubala has failed to show is even a remote probability that Time Warner’s rather puzzling conduct is harmful to him.
The standing rule reduces the workload of the federal judiciary, as does the principle of finality that shortstops much litigation, but does so more innocently because the “victims” of the rule are persons or organizations who suffer no significant deprivation if denied the right to sue, as persons barred by the finality rule frequently are.
Gubala argues in his briefs that the Supreme Court’s recent admonishment in Spokeo, that “Article III standing requires a concrete injury even in the context of a statutory violation,” applies only to violations of statutory rights that can be categorized as “procedural” rather than “substantive.”
But a failure to comply with a statutory requirement to destroy information is substantive, yet need not (in this case, so far as appears, did not) cause a concrete injury. Anyway at oral argument Gubala’s counsel conceded the irrelevance of his attempted distinction between substantive and procedural statutory violations, acknowledging that it was foreclosed by Meyers v. Nicolet, 843 F.3d 724 (7th Cir. 2016), decided after he filed his briefs.
We are mindful of Gubala’s further contention that a violation of Section 551(e) is a violation of a right of privacy.
Violations of rights of privacy are actionable, but there is no indication of any violation of the plaintiff’s privacy because there is no indication that Time Warner has released, or allowed anyone to disseminate, any of the plaintiff’s personal information in the company’s possession.
Had Gubala reason to believe the company intends to release any of that information or cannot be trusted to retain it, he would have grounds for obtaining injunctive relief, but he doesn’t even argue that there is a risk of such leakage.
The absence of allegation let alone evidence of any concrete injury inflicted or likely to be inflicted on the plaintiff as a consequence of Time Warner’s continued retention of his personal information precludes the relief sought and requires that we affirm the district court’s judgment dismissing the plaintiff’s suit for want of standing.
Steven P. Garmisa is an attorney with Chicago-based Hoey & Farina.