Information Privacy Litigation as Bellwether for Institutional Change

32 Pages Posted: 3 Sep 2016

See all articles by Julie E. Cohen

Julie E. Cohen

Georgetown University Law Center

Date Written: September 2, 2016

Abstract

Information privacy litigation is controversial and headline-grabbing. New class complaints are filed seemingly every few weeks. Legal scholars vie with one another to articulate more comprehensive theories of harm that such lawsuits might vindicate. Large information businesses and defense counsel bemoan the threats that information privacy litigation poses to corporate bottom lines and to “innovation” more generally. For all that, though, the track record of litigation achievements on the information privacy front is stunningly poor. This essay examines emerging conventions for disposing of information privacy claims, including denial of standing, enforcement of boilerplate waivers, denial of class certification, and the rise of the cy pres settlement. It argues that, in an era of complex, informationally-mediated harms, the information privacy lawsuit is a marker of both institutional stress and institutional opportunity. The inability of most information privacy claims to gain meaningful traction reflects the influence of powerful repeat players interested in minimizing their exposure to claims of informational injury. But it also raises important questions about how judicial processes can be adapted to deal with the predominantly informational and infrastructural harms that increasingly characterize our networked, information-based political economy.

Keywords: information, privacy, information privacy, data security, identity theft, class actions, cy pres, litigation, aggregate litigation, standing

JEL Classification: K41, O39

Suggested Citation

Cohen, Julie E., Information Privacy Litigation as Bellwether for Institutional Change (September 2, 2016). DePaul Law Review, Vol. 66, No. 2, Available at SSRN: https://ssrn.com/abstract=2833922

Julie E. Cohen (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9871 (Phone)
202-662-9411 (Fax)

HOME PAGE: http://www.law.georgetown.edu/faculty/jec/

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