A recent case involving the Illinois Biometric Information Privacy Act (BIPA), Rivera v Google (N.D. Ill. No. 16 C 02714, Dec. 28, 2018), puts the ills of Spokeo Inc. v. Robinson full display. In Rivera, plaintiffs sued Google under BIPA, which prohibits companies from collecting and storing specific types of biometric data without people’s consent. The plaintiffs alleged that Google collected and used their face-geometry scans through Google Photos without their consent. Google’s face recognition feature is defaulted to being on unless users opt out. Instead of addressing the merits of the plaintiffs’ lawsuit under BIPA, the court dismissed the case for lack of standing based on Spokeo, a fairly recent U.S. Supreme Court case on standing.
Spokeo is a terrible decision by the U.S. Supreme Court. It purports to be an attempt to clarify the test for standing to sue in federal court, but it flunks on clarity and coherence. I previously wrote an extensive critique of Spokeo when the decision came out in 2016.
Beyond Spokeo‘s incoherent mess, there is another part of the opinion that is far worse — Spokeo authorizes courts to override legislatures in determining whether there’s a cognizable privacy harm under a legislature’s own statute. This part of Spokeo is a major usurpation of legislative power — it undermines a legislature’s determination about the proper remedies for violations of its own laws.
The U.S. Supreme Court has decided NASA v. Nelson, reversing the 9th Circuit 8-0. My thoughts about the case are here and here, and as I predicted, the Court rejected the 9th Circuit holding that the government employment background check questionnaires violated the constitutional right to information privacy. Fortunately, the Court kept its opinion narrow and didn’t use it as an opportunity to wipe out the constitutional right to information privacy, a right that the Court mentioned just a few times but that has taken on more of a life in the circuit courts. Continue Reading
There are few defenders of the Supreme Court Justice confirmation process. Every time it occurs, we go through a charade of hearings, where candidates are coy about their positions on most issues and talk about “neutrality” and being a mere “umpire.”
Who are they kidding? We all know that no judge is neutral or a mere umpire. We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets. We all know that ideology has some effect on judicial decisions. And we all know that judges don’t find the law but make it.