Information Privacy Litigation as Bellwether for Institutional Change

Abstract

Information privacy litigation is controversial and headline-grabbing. New class complaints are filed seemingly every few weeks. Legal scholars vie with one another to articulate more comprehensive theories of harm that such lawsuits might vindicate. Large information businesses and defense counsel bemoan the threats that information privacy litigation poses to corporate bottom lines and to “innovation” more generally. For all that, though, the track record of litigation achievements on the information privacy front is stunningly poor. This essay examines emerging conventions for disposing of information privacy claims, including denial of standing, enforcement of boilerplate waivers, denial of class certification, and the rise of the cy pres settlement. It argues that, in an era of complex, informationally-mediated harms, the information privacy lawsuit is a marker of both institutional stress and institutional opportunity. The inability of most information privacy claims to gain meaningful traction reflects the influence of powerful repeat players interested in minimizing their exposure to claims of informational injury. But it also raises important questions about how judicial processes can be adapted to deal with the predominantly informational and infrastructural harms that increasingly characterize our networked, information-based political economy.

Keywords: information, privacy, information privacy, data security, identity theft, class actions, cy pres, litigation, aggregate litigation, standing

JEL Classification: K41, O39