The Volokh Conspiracy
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Article III Standing in Frank v. Gaos
Why I think there is standing: Think property, not privacy.
Some readers have followed the pending Supreme Court case of Frank v. Gaos, which involves the settlement of class actions using cy pres awards. As Will Baude explained here back in November, the Justices called for additional briefing after oral argument on whether there is Article III standing in the case. The briefs and reply briefs have now been filed, and I thought I would add my own thoughts on why think there is standing.
A confession at the outset: I am not an expert in standing doctrine. But I do know a thing or two about the cause of action in this case. It happens to involve a statute, the Stored Communications Act, that I have spent a rather absurd amount of time studying and teaching over the last two decades. Because the standing test under Spokeo hinges in part on the substantive cause of action, I thought I would explain what Congress was doing when it created this cause of action. If I'm understanding Spokeo correctly, I think that understanding provides a solid basis for Article III standing.
Here's the scoop. As I explained in this article, Congress created the SCA in 1986 to create home-like privacy protections for Internet communications. In the physical world, the law already protects your home. The Fourth Amendment requires a warrant to enter your home. And if someone comes into your house and takes your stuff away, you can sue them for the tort of conversion. But in 1986, it didn't look like those protections would apply to the computer network equivalent of your home, your personal communications such as your private e-mail. First, it wasn't at all clear in 1986 that the Fourth Amendment applied at all to e-mail. And second, e-mail service providers had total access to user e-mails, and it wasn't at all clear that there was any legal prohibition on providers taking those e-mails and sharing them with the world.
Those problems led Congress to enact the SCA with two key parts. First, Section 2702 imposes a ban on service providers voluntarily disclosing user communications unless an exception applies. Second, Section 2703 imposes a ban on the government from compelling service providers to hand over user communications without greater legal process such as a warrant. The two statutory sections are network versions of traditional legal causes of action. Section 2702 stands in the place of the traditional tort of conversion. It stops service providers from taking away your private electronic stuff just like the tort of conversion stops the superintendent of an apartment building from entering apartemnts and taking away tenants' physical stuff. Section 2703 stands in the place of traditonal Fourth Amendment law. It requires the government to get a warrant to compel a provider to fork over e-mails just like the Fourth Amendment requires a warrant for the government to enter a home.
That brings us back to Frank v. Gaos. The plaintiffs are Internet users who object to the fact that when you click on a website link, a referral header is ordinarily sent to the website you're visiting that reveals where you have been. It turns out that when you do a search, your search terms ordinarily appear in your website address. That means that when you click on a link following a search, you're ordinarily passing on the search terms that you entered to the website that you're then visiting. In this case, a class action was brought against Google on behalf of Google users claiming that Google was violating the SCA, and in particular Section 2702, by operating this way. As the plaintiffs saw it, Google was disclosing private search terms of its users in violation of the statute.
From my perspective, I have to say, this seems like an extremely weak SCA case. If I understand the claim, I don't see how it amounts to a violation of Section 2702. The communications here are the search terms in the users' browers. When users click on the links, their actions pass on the communications to the next site they are visiting. The disclosure is by the user, not the provider. Given that, I don't see how the search engine was acting as either a provider of ECS or an RCS with respect to those communications -- prerequisites for the ban in Section 2702 to apply. But that's the merits of the case, not standing, and only standing is before the Court.
On standing, the question asked by Spokeo, Inc. v. Robins is whether a plaintiff suffered an invasion of a legally-protected interest that is "concrete and particularized" so as to establish injury-in-fact. "It is instructive," Spokeo explains, "to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts."
It seems to me that the answer is yes. If you imagine that the SCA was violated, that means that the defendant committed an intangible version of the tort of conversion. For Section 2702 to have been violated, Google must have been acting like the Internet equivalent of a superindendent who entered tenants' apartments, took their property, and sent it to someone else without the tenants' permission. The alleged wrong has a close relationship to a traditional common law conversion tort.
The parties have mostly missed this because they (and some Justices at argument) seem to be thinking about this as a privacy case. They're thinking about Section 2702 as a privacy statute. And they're thinking about the cause of action as either similar to or different from a privacy tort. That raises some difficult issues, and it's not surprising that the privacy-focused approach led the Justices to want more briefing.
But I think the case is easier when you realize that Section 2702 is better understood as an intangible conversion statute, not a privacy tort statute. The SCA reflects Congress's judgment that your digital files are your stuff. Someone else can't come along and take that stuff from you. And in the digital world, taking your stuff means copying it and distributing it to someone else. It doesn't matter if the files are particularly private. It just matters that the stuff is your stuff. It's true that concepts of conversion can be an awkward fit when applied to unauthorized copying of digital information -- see this brilliant student note from 1996 for more. But the basic idea behind Congress's cause of action in Section 2702 is digital conversion of personal property.
As I understand Spokeo, that goes a long way towards establishing Article III standing. By alleging a Section 2702 violation, the plaintiffs are alleging a concrete and particular harm: Conversion of their personal property, albeit through intangible means of copying and distributing it.
