108 Iowa L. Rev. Online 49 (2023)
In TransUnion LLC v. Ramirez, one of the country’s largest credit reporting agencies violated the Fair Credit Reporting Act (“FCRA”) by “fail[ing] to follow reasonable procedures to assure maximum possible accuracy . . . .” As a result, thousands of credit reports incorrectly said that consumers were “potential terrorists, drug traffickers, or serious criminals.” The case wound its way to the Supreme Court on the issue of Article III standing. For plaintiffs that had their reports disseminated, the Court found standing. For victims that did not have their reports disseminated, the Supreme Court concluded that they had not suffered a “concrete injury.” Accordingly, these victims did not have standing and could not recover the statutory damages provided by the FCRA.
TransUnion has the potential to impact several types of modern data privacy rights. While the European Union (“EU”) has led the way in recognizing several new rights, this country has followed, and federal and state laws are beginning to adopt their own versions of these rights. Specifically, privacy statutes are now giving individuals the right to: (1) not have their personal data collected; (2) access their data; (3) rectify inaccurate data; and (4) have their data deleted. But after TransUnion, the Supreme Court may have eliminated the ability of Congress to use statutory damages to enforce such rights. This Essay suggests an approach that will restore this option to Congress.
Earlier work (by myself and others) has already explained why unjust enrichment can help overcome issues of harm, causation and standing in privacy law. This Essay builds on that work by addressing TransUnion and arguing that restitution and unjust enrichment can provide standing to plaintiffs that sue under emerging privacy statutes. Because unjust enrichment is based on the defendant’s gain instead of the plaintiff’s injury, plaintiffs can surmount standing’s “concrete injury” requirement. Moreover, plaintiffs have pursued various unjust enrichment claims in courts for centuries. Therefore, it is precisely the kind of historically rooted theory endorsed by TransUnion. Finally, both Congress and state legislatures should consider expressly including a disgorgement remedy in their privacy statutes to allow victims to recover the money companies wrongly receive (or wrongfully save) for violating these laws. Such carefully drafted laws will prevent courts from limiting the availability of the unjust enrichment remedy.