Wednesday, February 21, 2018

Bassett v. ABM Parking Services (9th Cir. - Feb. 21, 2018)

You can certainly understand why the Ninth Circuit comes out this way today.  The Supreme Court in Spokeo a couple years ago really did seem to make the "injury in fact" standing requirements tougher to satisfy.  Given that predicate, you can see why the panel concludes that there's no standing even when a defendant clearly violates a federal statute that says you can't put the credit card expiration date on a receipt.  That's illegal, and there are statutory penalties.  But apparently the Constitution prohibits federal courts from enforcing it.

Okay, I guess.  I'm fairly confident that's what the six justices in the majority in Spokeo would indeed hold.  As the Ninth Circuit's opinion puts it, if there's no thief who grabs the receipt out of your hand and uses it to steal your identity, there's no "actual injury" and hence no standing.

Though I have one thought in this regard to share.

There seem to me to be lots of somewhat analogous circumstances in which we do find standing.  Even when the only recipient of the item in question is the plaintiff herself, and in which there's no demonstrably "concrete" harm.  To take but one example, imagine that a boyfriend secretly takes a Polaroid of his sleeping (naked) girlfriend, and the before the picture develops, slips it in her purse.  She sees it the next day and is horrified.  She didn't consent to the photo, and there she is, naked, for all to see.

I have no doubt whatsoever that a court would find standing in such a context.  Someone's privacy was invaded.  A statute was violated.  There's a photograph out there that depicts something that the law protects.  If the girlfriend sued, I am certain that the Ninth Circuit would find standing.  Even if (1) the only person to ever view the picture (like the receipt) was the plaintiff, (2) there were no other copies, and (3) to use the words of the Ninth Circuit, the picture "fell into [plaintiff's] hands in a parking garage and no [] thief was there to snatch it."  The fact that plaintiff freaked out about the privacy violation -- and that the Legislature says that's good enough to impose some minimal level of statutory damages -- would certainly create standing.

So why not here?

I know that our sentiment is that it's worse to have a naked picture than a credit card receipt with your expiration date on it.  But that's a quantitative difference, not a qualitative one.  And if the Legislature -- the voters -- dictate that the latter invasion is as harmful to community (or individual) sensibilities as the first, in what position is the judiciary to conclusively determine otherwise?

Plus, I gotta tell you, I have zero doubt that at least some people would be more freaked out about a credit card receipt than a naked picture, and might indeed be psyched about the latter.  The point is that these things seem inherently subjective.  Some people freak out about privacy.  Some people don't.  Some people freak out about potential identity theft.  Some people are more mellow.  I can think of plenty of statutes that articulate "concrete" injury when, in fact, there's no "demonstrable" harm of the type the Ninth Circuit seems to require here.  Is the line the Ninth Circuit draws here really a consistent -- or tenable -- one?  I have some doubts that it is.

Anyway, I think it's worth thinking about the nature of subjective injuries, particularly when (as here) the issues concern (inherently subjective) privacy and legislative judgments.  If we really had a rule that treated seriously the Ninth Circuit's principle about trees (or receipts) falling in the forest where no one hears (or steals) them, I think we might well have to strike down a plethora of federal and state statutes that we're super happy with and that we commonly think reflect legitimate interests.