From Walking the Tight Rope to a Walk on the Bridge: The Lessons from the United States Supreme Court Decision in Spokeo Inc v Robins

AuthorInura Fernando
PositionBHSc/LLB (UOA), LLM (Second Class Hons, First Division) in Human Rights Law, University of Auckland
I F*
is paper will d iscuss less ons for New Zealand data p rivacy law f rom the United
States Supreme C ourt decision in S pokeo Inc v Robins.  is paper will explore the p olicy
context surro unding data aggregators. It wi ll present the case for a regulator y approach
and question th e eectivenes s of the status quo i n addressing har ms posed by data
aggregators . is paper champions a regu latory model based on su i generis legislatio n to
address the pros pective privacy har ms stemming from data agg regators such as Spokeo.
Privacy, and t he associat ed control of per sonal dat a and
how it is used, is v ital t o a sense of person al autonomy. The
feeling of bei ng watched a nd controlled i s antithe tical to
people havi ng the freedom to ma ke their own choices a nd live
their lives h ow they wish.
New Zeala nd Council for Civil L iberties1
I. Introduction
Technology is not neut ral; it t akes on the va lues of its creat ors. Huma n rights
issues in t he modern-day are not conf‌i ned to cases of tort ure or voter suppression.
Modern huma n rights v iolators, w hether as ind ividual s or as organ isations, h ave
1 New Zeala nd Council for Ci vil Liber ties “Submi ssion to the Just ice and Elect oral Comm ittee on
the Priv acy Bill”.
* BHSc/LLB (UOA), LLM (S econd Class Hons, F irst Division ) in Human Rig hts Law, Universit y of
Auckla nd. Enrolled Bar rister and Solici tor of the High Cour t of New Zealand. I woul d like to
acknowledg e the unerring love a nd support of my parents , Mala and Lal Fern ando. I want to
especia lly thank Ass ociate Professor Geh an Gunasekera for hi s kind support and gu idance. I
want to ack nowledge the advi ce and kind suppor t of Associate P rofessor Stephen Penk , I want
to than k Dr Bill Hodge for h is support and ad vice, and I want t o acknowledge th e eorts of the
sta of t he Privacy Com missioner for res ponding to my q ueries and infor mation reques ts.
126 [Vol 26, 2020]
become adept to th e changes of the infor mation age, which mea ns data aggre gation
can be a tool i n their modus operandi. F rom white supremacist s planni ng savage,
racist at tacks, to gover nment burea ucrats inte nt on violatin g the civi l rights of
citizens or i mmigrants , bad actors now have the ma nipulation of data an d datasets
to aid them . Even if such enti ties are not t hemselves data a ggreg ators, bad act ors
can uti lise thei r services for nef arious pur poses. Therefore, the regulat ion of data
aggreg ators is a putative hu man rights iss ue.
This ar ticle has the followin g key aims. It hopes to encour age the New Zealand
legal com munity, policy ma kers and the New Zea land public to join c alls to regul ate
data agg regators i n light of t he harms t hey pose in re spect of data pr ivacy law. It
calls i nto quest ion the eectivene ss of the stat us quo, represent ed by Privac y Act
2020, Credit R eporting Pri vacy Code 2004, Huma n Rights Review T ribunal (HRR T)
cases and t he juris prudence of the New Ze aland Cou rts. Th is art icle will d raw
on lessons from t he United St ates Supreme Cou rt case, Sp okeo Inc v Robins, a nd
attempt to r elate it to New Ze aland l aw. It attempts to pr ovide an under stand ing
of the context ual iss ues that need t o be f‌irst u nderstood before f urt her analy sis
can be di scussed. These i ssues relate t o overall q uestions abou t what is so un ique
about data a ggregat ors that wa rrant sep arate, t argeted r egulation . It will a lso
acknowledge some of t he limit ations of the a nalys is. It wil l present some key
arguments t hat cal l for a regulator y approach tow ards dat a aggreg ators. Fi nally,
it will at tempt to pre sent some foundation s of a proposed model to re gulate dat a
aggreg ators, separate f rom the status quo.
It is import ant note from the outset of t he discussion the ran ge of terminology
used. Alt hough th is paper has c hosen to use the ph rase dat a aggreg ators, other s
use phras es and words such as data broker s, automated decision ma king, Big Data ,
algorit hms, ar tif‌icia l intel ligence, pred ictive ana lysis a nd prof‌ilin g, to na me a
handfu l.
The facts of Spoke o Inc v Robins a re useful t o consider. The case conc erns Mr
Thomas Robin s, with whom ot hers have joined i n a class act ion agai nst Spokeo
Incorporat ed at a federal level .2 Spokeo operate s a “people sear ch engine”,3 which
aggreg ates data from publ icly available sourc es including public d irectories, on line
sources, promot ional network s and socia l media. 4 This website a llows people se eking
informat ion about anot her person to f‌ind w hat they ar e looking for. It is ai med at
employers and other s conducting searches i nto the background of ind ividuals.5 Mr
Robins compla ins about inaccur ate inform ation about hi m on the Spokeo website,
2 Spokeo Inc v Robins 136 S C t 1540 (2016) [Spokeo] at 1543 .
3 At 1543.
4 Brief for Petitioner Spo keo Inc v Robins 2015 W L 4148655 (2015) at 7.
5 Spokeo, above n 2, at 1543.
From Walking the Tight rope to a Walk on the Bridge: T he Lessons from The Unite d States
Supreme Cour t Decision in Spok eo Inc v Robins 127
and (with ot hers) has star ted class action proc eedings to vi ndicate his rig hts under
the Fair C redit Repor ting Act 19 70.6 This Act requires c redit repor ting agenc ies to
“follow reason able procedures to a ssure maxi mum possible accur acy”7 of consumer
reports a nd it imposes “civil l iability for w ilful non-compl iance”.8 Mr Robins cla ims
that Spokeo gener ated an in accurate pr of‌ile about hi m; namely t hat he held a
graduate de gree, th at he was mar ried, in h is 50s, employed in a pr ofessional f‌ield,
with ver y strong economic he alth and we alth ind icators.9 This inaccurat e prof‌ile was
being dis played while Mr Robin s was unemployed, which is a lleged to have har med
his employment oppor tuni ties.10Just ice Thomas sum marised the conclusion of t he
majorit y opinion of the Supreme Cour t as thus:11
Robins ha s no stand ing to sue Sp okeo, in his ow n name,
for violations of t he duties th at Spokeo owes to the pu blic
collecti vely absent some showi ng that he ha s suered
concrete and particular harm.
A reader may ask , what is the relevance of t he Spokeo case to New Zealan d? The
answer is t hat there is no direc t relevance because t he systems of law are d ierent.
This is bec ause the Spokeo case conc erns an Amer ican Const itutiona l doctri ne called
stand ing. However, New Zea land does not have a w ritten constit ution and instead
has a system of pa rliamentar y sovereignty where Parlia ment is supreme. America’s
all-encompa ssing cons titut ion aects ever yth ing from t heir const itutiona l law to
data privac y law. Despite these fu ndamental di erences, both legal s ystems have to
tackle polyc entric policy issues, th e fundamen tal problem of scarcit y of resources,
and the iss ue of balancing t he competing inter ests of various st akeholders. Equal ly,
both lega l systems cr eate ways to l imit and pre scribe access t o justice t hrough cou rts
and tribu nals. Article I II stan ding is si mply a way of respec ting the c onstitu tional
doctri ne of separation of p owers. Simi larly, the Pr ivacy Act 2020 a lso serves a
gatekeepin g function th rough the ha rm requirement . The other aspect of t he Spokeo
case is the le gal reasoning us ed by the majority. There is a sim ilarity wit h some of
the New Zeal and jurisprudence i n the way legal reason ing is used to obfuscat e the
vindication of privacy rights.
A reader may ask , why should the l aw care about d ata agg regators at a ll?
Data agg regators , under the st atus quo, th reaten the r ight to i nformation al self-
6 The Fair Credit Repo rting Act 19 70 (US).
7 At 15 USC § 1681e(b)
8 At 15 USC § 1681n(a).
9 Spokeo, above n 2, at 1554 .
10 At 1554.
11 At 1553.

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