United States: The Eighth Circuit Applies Spokeo To Reject Standing For Technical Violation Of Privacy Statute

Last week, the Eighth Circuit became the first Circuit Court to address the reach of Spokeo v. Robbins in a privacy case, holding that a plaintiff's allegation that a cable company's retention of his personal information in violation of the Cable Communications Policy Act (CCPA) was, on its own, insufficient to establish Article III standing. Plaintiff's allegation of a technical violation of the statute, without alleging how that violation injured him, failed to allege a concrete injury recognized by Congress or at common law.

Cable Communications Policy Act

The CCPA governs the collection, dissemination and destruction of the personal information of the customers of cable service subscribers. See 47 U.S.C. § 551. The CCPA provides that: "[a] cable operator 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 such information[.]" 47 U.S.C. § 551(e). It also provides a private right of action for parties "aggrieved by any act of a cable operator in violation of its provisions." See id. at § 551(f)(1). Prevailing plaintiffs may recover statutory damages in the amount of $100 per day of violation or $1,000, whichever is greater, as well as punitive damages and attorneys' fees.

Background

Alex Braitberg was a subscriber of cable services from Charter Communications, Inc. ("Charter") from July 2007 through June 2010. When he signed up for service, Charter required Braitberg to provide his personally identifiable information, including his address, telephone number, and social security number, to activate his service. In March 2013, Braitberg confirmed that Charter had retained all of the personally identifiable information that he had submitted in 2007 despite his not being a subscriber for almost three years.

Braitberg brought a class action lawsuit alleging that Charter had violated the CCPA by retaining the personally identifiable information of its customers after they had cancelled their subscriptions and after retention of that information was no longer necessary for Charter to provide services, collect payments, or satisfy any tax, accounting, or legal obligations.  In bringing his complaint, Braitberg alleged that he and the other proposed class members had suffered two injuries. First, he alleged Charter's retention of subscribers' personal information directly invaded their federally protected privacy rights. Second, he alleged the class had not received the full value of the services that they had purchased from Charter. Specifically, Braitberg alleged that he had placed a monetary value on controlling and protecting his personal information and that when he subscribed for cable service, he paid for Charter to destroy their information when Charter no longer needed it. Under this theory, Charter's failure to destroy his personal information as required by the CCPA and Charter's privacy policy, therefore deprived him of the service for which he had paid.

The district court dismissed the complaint upon Charter's motion challenging plaintiff's Article III standing.

Eighth Circuit Decision

The Eighth Circuit affirmed the district court's dismissal in in Braitberg v. Charter Communications, Inc., No. 14-1737 (8th Cir. Sept. 8, 2016), finding that Braitberg's allegation of a technical violation of the CCPA without more failed to allege a concrete and particularized injury sufficient to confer standing. The court began its analysis by observing that the Supreme Court's holding earlier this year in Spokeo v. Robbins, 136 S.Ct. 1540, 1549 (2016) that "Article III standing requires a concrete injury even in the context of a statutory violation" controlled and overruled prior Eighth Circuit precedent.

Turning to the factual allegations of the case before it, the Eighth Circuit found that Braitberg had fallen short of the Spokeo standard and failed to allege a concrete injury arising from Charter Communications' alleged retention of his personal information. See Charter, No. 14-1737, at 8. Instead, Braitberg had only alleged "a bare procedural violation, divorced from any concrete harm." See id. (quoting Spokeo at 136 S.Ct. at 1549). The Court noted that Braitberg had failed to allege that the personal information that Charter had retained allegedly in violation of the CCPA had been disclosed to or accessed by a third party or that Charter had even used the information itself during the disputed period. See id.  Braitberg had not identified "a material risk of harm from the retention," and that the "speculative or hypothetical risk" he identified was "insufficient." See id. The court observed that while there was an established common law tradition recognizing injury based on the invasion of privacy rights, there was no such tradition for the retention of personal information that was lawfully obtained. See id. The Court similarly rejected Braitberg's economic injury argument, holding that "[w]ithout a plausible allegation that Charter's mere retention of the information caused any concrete and particularized harm to the value of that information, Braitberg has not adequately alleged that there was any effect on the value of the service that he purchased from Charter." Id., at 9.

Takeaways

Although Charter represents only one Circuit Court's application of Spokeo, it gives defendants in privacy lawsuits ammunition to challenge standing where the complaint is premised on a violation of a statutory right. Unless they can show that a statutory violation concerns a right that has been traditionally recognized at common law or can demonstrate that Congress has explicated the harm caused to individuals from violation of the right, plaintiffs in the Eight Circuit will find Charter to be a roadblock at the pleading stage.​

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
18 Oct 2017, Conference, California, United States

This three-day program will focus on the tax issues presented by the entire spectrum of modern major corporate transactions, from relatively simple single-buyer acquisitions of a division or subsidiary to multi-party joint ventures, cross-border mergers, and complex acquisitions of public companies with domestic and foreign operations, including spin-offs and other dispositions of unwanted operations.

19 Oct 2017, Conference, California, United States

Privacy professionals are facing a number of challenges in determining how best to achieve GDPR compliance and maintain compliance for the long term. The Alliance of Global Privacy Solution Providers (the "Alliance") has been formed with a mandate to educate privacy professionals on making informed decisions on their approach to planning, implementing and managing GDPR and long-term privacy compliance.

30 Oct 2017, Seminar, California, United States

This program will address some of the hottest legal and policy topics that online platforms have brought to the fore: free speech, hate speech, fake news, privacy and surveillance, artificial intelligence, augmented reality, changing notions of “ownership” of information and software-enabled consumer products, and the perennial issue of copyright.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.