Spokeo Needs to Get it Right

spokeo emojiIt May Be Free, But the Info on Spokeo Still Needs to be Accurate

Robins v. Spokeo (Spokeo III) (8/15/2017)

Spokeo, Inc., operates a website by the same name that compiles consumer data and builds individual consumer-information profiles. At no cost, consumers can use spokeo.com to view a report containing an array of details about a person’s life, such as the person’s age, contact information, marital status, occupation, hobbies, economic health, and wealth. More detailed information is available for users who pay subscription fees. Spokeo markets its services to businesses, claiming that its reports provide a good way to learn more about prospective business associates and employees.

At some point, Thomas Robins became aware that Spokeo had published an allegedly inaccurate report about him on its website. Robins then sued Spokeo for willful violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. FCRA imposes a number of procedural requirements on consumer reporting agencies to regulate their creation and use of consumer reports.1 The statute gives consumers affected by a violation of such requirements a right to sue the responsible party, including the right to sue (and to recover statutory damages) for willful violations even if the consumer cannot show that the violation caused him to sustain any actual damages. (See id. §§ 1681n, 1681o.)

Robins’s suit alleged that Spokeo willfully violated various procedural requirements under FCRA, including that Spokeo failed to “follow reasonable procedures to assure maximum possible accuracy” of the information in his consumer report. (Id. § 1681e(b).) He alleged that, as a result, Spokeo published a report which falsely stated his age, marital status, wealth, education level, and profession, and which included a photo of a different person. Robins alleged that such errors harmed his employment prospects at a time when he was out of work and that he continues to be unemployed and suffers emotional distress as a consequence.

On remand from the Supreme Court of the United States, the 9th Circuit noted that, “Robins is certainly correct that FCRA purportedly allows him to sue for willful violations without showing that he suffered any additional harm as a result. See 15 U.S.C. § 1681n. But the mere fact that Congress said a consumer like Robins may bring such a suit does not mean that a federal court necessarily has the power to hear it.”  As such, the question at hand is whether the inaccurate information, alone, can “establish an injury sufficiently concrete for the purposes of Article III standing.”

To establish such an injury, the plaintiff must allege a statutory violation that caused him to suffer some harm that “actually exist[s]” in the world; there must be an injury that is “real” and not “abstract” or merely “procedural.” (Spokeo v. Robins (Spokeo II) 136 S.Ct. 1540 at 1548-1549 (2016).)

In evaluating Robins’s claim of harm, the Court asked: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.

As to the first question, the Court agreed with Robins that Congress established the FCRA provisions at issue to protect consumers’ concrete interests. The Court previously observed that FCRA “was crafted to protect consumers from the transmission of inaccurate information about them” in consumer reports. (Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995); see also Spokeo II, 136 S. Ct. at 1550 (Congress enacted FCRA to “curb the dissemination of false information”); S. Rep. No. 91–517, at 1 (1969) (“The purpose of the fair credit reporting bill is to prevent consumers from being unjustly damaged because of inaccurate or arbitrary information in a credit report.”).

Second, the Court must determine whether Robins has alleged FCRA violations that actually harm, or at least that actually create a “material risk of harm” to, this concrete interest. (See Spokeo II, 136 S. Ct. at 1550; Strubel, 842 F.3d at 190. Robins must allege more than a bare procedural violation of the statute that is “divorced from” the real harms that FCRA is designed to prevent. Spokeo II, 136 S. Ct. at 1549; Van Patten, 847 F.3d at 1042.)

In the end, the 9th Circuit held, “We are satisfied that Robins has alleged injuries that are sufficiently concrete for the purposes of Article III. As noted, we previously determined that the alleged injuries were also sufficiently particularized to Robins and that they were caused by Spokeo’s alleged FCRA violations and are redressable in court. (See Spokeo I, 742 F.3d at 412–14.) The Supreme Court did not question those prior conclusions, and we do not revisit them now. Robins has therefore adequately alleged the elements necessary for standing.”

The take away is that while all violations of the FCRA may not be enough for liability, in this case, Robins passed the hurdle and Spokeo will likely face a trial on the matter.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

Private Facebook information Remains “Private” – So Far

Quiet Court in Session“Private” Facebook Posts are “Private” 

FACEBOOK, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; LANCE TOUCHSTONE, Real Party in Interest – (9/26/17)

Here, in Facebook v. Touchstone, a subpoena seeking to obtain “private” Facebook information is at stake. In this regard, real party in interest Lance Touchstone is awaiting trial in respondent San Diego County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R. (the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim has been active on his personal Facebook, Inc., (Facebook) account. He posted updates of his physical recovery from the hospital, requesting private messages over the Facebook messaging system. On the public portion of his Facebook page that is visible to all Facebook users, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people.

Believing nonpublic content of the victim’s Facebook account might provide exculpatory evidence helpful in preparing for trial, Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim’s Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) (18 U.S.C.2 § 2701 et seq.) prohibited disclosure of the victim’s account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. Touchstone opposed the motion on the grounds he had a plausible justification for requesting the contents of the victim’s account, he should be allowed to obtain the contents because law enforcement could do so by a search warrant, his constitutional right to a fair trial trumped the SCA, and he could not obtain the contents from other sources because the victim was uncooperative and the prosecutor had not obtained a search warrant. At oral argument, defense counsel represented that the prosecution refused to issue a search warrant for the material and that she has been unable to locate the victim to serve him with a subpoena. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim’s account for in camera inspection by a certain date.

In the end, the Court held, “The SCA expressly prohibits electronic communication service providers from “knowingly divulg[ing] to any person or entity the contents of a communication.” (§ 2702(a)(1).) This statutory prohibition is subject to limited exceptions, none of which apply. (§ 2702(b)(1)-(8).) As we have discussed, Touchstone’s constitutional challenges to the SCA lack merit. Accordingly, the supremacy clause (U.S. Const., art. VI) prohibits enforcement of the trial court’s order because “California’s discovery laws cannot be enforced in a way that compels [a provider] to make disclosures violating the [SCA].” (Negro v. Superior Court, supra, 230 Cal.App.4th at pp. 888-889.).”

Until the California Supreme Court finally decides the matter in Facebook1, which is pending before the High Court, Facebook “private” information will remain private.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com