September 9, 2016

No Harm, No Foul – Why Abstract Privacy Claims against Cable Providers Will Fail

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As summer began we predicted the Supreme Court’s May 2016 decision in Spokeo v. Robins would put an end to certain privacy-based statutory claims brought under federal telecommunications law, including against the cable industry (even though Spokeo had nothing to do with telecommunications law or cable). Yesterday’s Eighth Circuit decision in Braitberg v. Charter Communications confirms we had it right. 

Spokeo limited access to federal court when a claimed statutory violation is “divorced from any concrete harm.” In other words, “gotcha” claims without a real injury should not proceed.

Braitberg was a cable service customer until 2010. Three years later he confirmed the cable provider’s records still contained his address, telephone and Social Security Number—information he had provided to activate service.

Braitberg sued, alleging violation of the Cable Communications Policy Act (“CCPA”), which governs the “protection of subscriber privacy” by “cable operators” and allows a court to award liquidated damages starting at $1,000 per violation to any “aggrieved” person. His grievance? Charter had not destroyed the personal identification information. Braitberg did not allege the information had been misused to hurt him.

The lower court dismissed his complaint without prejudice. An appeal followed, and the case was submitted to the appellate panel more than a year before Spokeo was decided. Precedent within the Circuit supported Braitberg’s view that violation of a statutory right alone was an “injury in fact” and sufficient to establish a right to sue in federal court.

But Spokeo requires a different view, as the Eighth Circuit explained in affirming dismissal of his suit:

Braitberg alleges only that Charter violated a duty to destroy personally identifiable information by retaining certain information longer than the company should have kept it. He does not allege that Charter has disclosed the information to a 3rd party, that any outside party has accessed the data, or that Charter has used the information in any way during the disputed period. He identifies no material risk of harm from the retention; a speculative or hypothetical risk is insufficient.

The Court said that with the benefit of Spokeo’s guidance, it concluded Braitberg had not alleged an injury in fact as required by Article III.