Bradley attorney Niya McCray was quoted in the Cook County Record on how two recent decisions in federal appeals courts regarding who has the right to sue over data breaches reflect a “social shift” in how data is viewed. The core issue revolves around Article III of the U.S. Constitution, which requires a “concrete actual injury” or an “impending actual injury.” Courts have differed on whether standing should be granted in cases centered around a threat of future harm.
“Throughout the years, we have seen splits in authority,” McCray said. “Some cases needed plaintiffs to give them hard evidence of ‘real’ harm: charges on your credit card, out-of-pocket fees, things of that nature. In those cases, the threat of future harm, though real enough for the affected consumers, was not enough to warrant standing. Other courts, though, have been more lenient, which may be attributable to their respect for and knowledge of data sensitivity.”
McCray explained that recent rulings in the Seventh and Ninth Circuits are significant because they mirror big changes in the ways that we view our data.
“There was a time when you absolutely had to show that you’d already experienced some kind of economic loss before you could even file a complaint,” McCray said. “Now, though, plaintiffs and consumers are able to recuperate prospective losses based on the theory that any time their data is compromised, they are at a constant, pervasive risk of further harm, even if that harm has not happened yet.”
The complete article, “Recent decisions to grant standing in data breach cases reflects ‘social shift’ in how data is viewed,” appeared in the Cook County Record on May 18, 2018.