Ill-Suited Private Rights of Action and Privacy Claims

Overview

This paper examines troubling privacy class action litigation trends under common law, state statutes, and federal statutes, where plaintiffs’ alleged harms are often intangible —or nonexistent—and where the wrongdoer is frequently unknown or unidentifiable. It focuses on suits brought under four laws to demonstrate why statutory private rights of action are inefficient and ineffective for addressing privacy concerns:

• Telephone Consumer Protection Act (TCPA)
• Fair Credit Reporting Act (FCRA)
• Video Privacy Protection Act (VPPA)
• Illinois Biometric Information Privacy Act (BIPA)

This paper then explores how plaintiffs resort to state privacy and consumer protection statutes to further sidestep
congressional intent where private rights of action are not provided in federal statutes. Next, we highlight the overarching and statute-specific consequences that flow from privacy private rights of action, which harm both consumers and businesses. We then explain why privacy-related statutes that do not include private rights of action and instead delegate enforcement power to agencies are often far superior to private litigation.

We thank U.S. Chamber Institute for Legal Reform for sharing this new report with our audience.

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