Professor Danielle Keats Citron (University of Virginia School of Law) and I have just posted a draft of our new article, Privacy Harms, on SSRN (free download). Here’s the abstract:
Privacy harms have become one of the largest impediments in privacy law enforcement. In most tort and contract cases, plaintiffs must establish that they have been harmed. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo v. Robins, the U.S. Supreme Court has held that courts can override Congress’s judgments about what harm should be cognizable and dismiss cases brought for privacy statute violations.
The caselaw is an inconsistent, incoherent jumble, with no guiding principles. Countless privacy violations are not remedied or addressed on the grounds that there has been no cognizable harm. Courts conclude that many privacy violations, such as thwarted expectations, improper uses of data, and the wrongful transfer of data to other organizations, lack cognizable harm.Continue Reading
The case arises out of an HHS civil monetary penalty (CMP) against the University of Texas M.D. Anderson Cancer Center for $4,348,000 for a series of incidents involving unencrypted portable electronic devices being lost or stolen. In 2012, a faculty member had ePHI of 29,021 people on an unencrypted laptop that was stolen. Subsequently, in 2013, a trainee and visiting researcher lost unencrypted USB drives with ePHI of thousands of patients on them. HHS imposed a fine of $1.348 million for violating the HIPAA Encryption Rule for the 2012 incident and $1.5 million for each of the 2013 incidents, adding up to a total of $4.348 million.
