Research: Privacy as Pretense: Empirically Mapping the Gap Between Legislative & Judicial Protections of Privacy

Abstract

While many statutes recognize that violations of privacy cause harm—and some even provide for private rights of action to enforce privacy rights—scholars have speculated that the judicial doctrine of Article III standing could create a procedural hurdle to remedying privacy harms. This empirical study maps the extent of that hurdle by investigating the data privacy litigation landscape of the U.S. Federal Courts in light of the strict Article III injury requirement for addressing privacy violations. The results are striking: Close to 60% of the cases heard in federal courts from 2000 to 2020 were dismissed for a failure to satisfy the strict injury threshold of Article III standing requirements. The empirical analysis thus reveals a significant gap between what legislators intend privacy protection to do (and what privacy statutes provided for on their face), and the actual landscape of privacy protection as interpreted by courts.

Citation: Muhawe & Bashir, Privacy as Pretense, 2023,  Illinois Journal of Law, Technology & Policy,   257

Read the full article online or download the .pdf.

h/t Daniel Solove