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

• Author: Inura Fernando
• Position: BHSc/LLB (UOA), LLM (Second Class Hons, First Division) in Human Rights Law, University of Auckland
• Pages: 125-160

FROM WALKING THE TIGHTROPE TO A

WALK ON THE BRIDGE: THE LESSONS

FROM THE UNITED STATES SUPREME

COURT DECISION IN SPOKEO INC vROBINS

I F*

Abstract

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.

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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.