Last Monday, the Supreme Court heard argument in Spokeo, Inc. v. Robins, one of this Term’s closest-watched cases, especially in the data-privacy field.  While attempting to “read the tea leaves” from oral argument can be treacherous, the justices’ questions offered a fascinating window into their thinking.

Spokeo, for those who have not been following, is a putative class action under the Fair Credit Reporting Act (FCRA).  The named plaintiff, Thomas Robins, alleges that Spokeo published inaccurate personal information about him.  The inaccuracies, however, were arguably flattering, and certainly not “defamatory” in the traditional sense: for example, he was described as better-educated and wealthier than he actually is.  Robins sued anyway.

He maintains that he has Article III standing for two reasons.

• First, Robins argues that he has standing simply because Congress said so.  The FCRA provides a cause of action where a reporting agency fails to “follow reasonable procedures to assure maximum possible accuracy” of consumer data.  It also provides statutory damages of up to $1000 for any consumer who proves a willful violation of those procedures.  According to Robins, Congress’s enactment of the FCRA and its decision to provide a cause of action and statutory damages—without more—confers Article III standing.

• Second, Robins argues that he has standing because he suffered a traditional, concrete “injury in fact.”  For example, Robins alleges that the publication of false information about him caused him emotional distress and jeopardized his general employment prospects (although he did not allege that he lost any specific job offer).

Below, the Ninth Circuit found Article III standing under Robins’s first theory, holding in essence that the violation of a federal statute automatically confers Article III standing on those Congress intended to enforce it.  The Supreme Court granted certiorari to address that first theory: thus, the official “question presented” in Spokeo is “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”

The justices’ comments reflected skepticism that Congress can create standing at will—even on the part of the “liberal” justices who have sometimes endorsed a broader view of Article III:

• Justice Kennedy challenged the broad theory of standing advanced by Robins and the Ninth Circuit as “quite circular,” questioning whether a person “has a personal stake” sufficient to satisfy Article III just “because Congress said he has a personal stake.”

• Justice Scalia, too, suggested that there “has to be something more than just the violation of … what Congress says is a legal right.”

• Chief Justice Roberts noted that the Court’s cases “have always [required] actual injury in fact,” which is “different than [mere] injury in law.”

• Even Justice Kagan and Justice Breyer did not appear to dispute that a consumer who had not had inaccurate information published about himself “cannot … say that he’s suffered a concrete injury” and therefore “does not have standing”—even if a reporting agency failed to follow Congressionally mandated practices in handling his information.

However, some of the justices—in particular, the “liberal” justices who dissented three terms ago in Clapper v. Amnesty International (2013)—suggested that Robins may have suffered a traditional “injury in fact,” and not just a “bare violation” of the FCRA:

• Justice Kagan commented that the “disseminat[ion]” of “inaccurate information” about someone “seems like a concrete interest to me.”  She offered that “if somebody did it to me, I’d feel harmed.  And I think that if you went out on the street and you did a survey, most people would feel harmed.”

• Justice Sotomayor stated: “I know plenty of single people who look [online] at whether [a potential] date is married or not.  So if you’re not married and there’s a report out there saying you are, that’s a potential injury.”  More generally, she suggested, such falsehoods may violate “your stature as a person, your privacy, [and] your sense of self.”

• Justice Breyer asked why the “psychic harm” of having “false information” published about oneself isn’t a concrete “harm.”  Later on, he stated that “this plaintiff seems to argue specific [factual] discrepancies” in his personal data “that, in all likelihood, hurt him.”

On the other hand, the more “conservative” justices, who were in the Clapper majority, seemed skeptical that Robins had pleaded a concrete “injury in fact,” as opposed to a mere “injury in law”:

• Justice Alito suggested that any alleged harm to Robins was “quintessential[ly] speculative,” especially absent any indication “that anybody other than Mr. Robins [himself] ever did a search” on Spokeo’s website for information about him.

• Chief Justice Roberts expressed doubt that the mere publication of “false information” could constitute an “injury in fact,” without a showing that the plaintiff was “injured in some way by that publication.”  He also emphasized that Spokeo’s website included a “disclaimer” that warned that its data might contain inaccuracies, which may add to the speculative nature of Robins’ claimed harm.

• Justice Scalia noted that, traditionally, a claim that “somebody said something false about you” did not rise to the level of concrete injury without “show[ing] positive damages.”

• Justice Kennedy, too, noted that “making false comments about someone” has not previously been considered an “actual” harm unless it rose to the level of defamation.  “In this cyber age,” where “all this information is out [there]” on the Internet, he wondered, doesn’t there “ha[ve] to be some real injury” – and not just falsity – to satisfy Article III?  On the other hand, he quickly countered, perhaps “regulated” entities like Spokeo have “less latitude” to “defend[] on the ground of no concrete injury than other entities.”

If the Court ultimately holds that a “bare statutory violation” (or “injury in law”) fails to satisfy Article III, that would be a major win for defendants—whether or not Robins is found to have standing.  As Robins’s lawyer appeared to concede during argument, a rule requiring a plaintiff-specific showing of “injury in fact” would make it more difficult to certify sweeping class actions based on federal statutory violations.  In a case like Spokeo, for example, it would appear that the only people who could recover are those (1) about whom false personal information was actually published, and (2) who actually felt distressed or actually suffered reduced employability as a result of that publication.  That inquiry is much more individualized—and, thus, less suited to classwide treatment—than the inquiry whether Spokeo failed to follow proper practices in handling consumer data.

However, there is always a possibility that the Court will “decide not to decide.”  If at least five justices end up convinced that Robins’s allegations of psychic harm or diminished employability state a traditional “injury in fact,” they may conclude that the question the Court granted certiorari to answer—whether “bare statutory violations” can confer standing without an “injury in fact”—is academic.  Indeed, that may be exactly what happened four terms ago in First American Financial Corp. v. Edwards (2012).  There, the Court granted certiorari to decide whether a bare violation of the Real Estate Settlement Procedures Act (RESPA) conferred Article III standing on a purchaser absent any tangible harm stemming from the violation.  After argument, however, the Court dismissed the Edwards petition as “improvidently granted.”  It provided no explanation, but many observers believe that the justices became convinced that some tangible harm had, in fact, been alleged.

Will Edwards repeat itself?  Or will the Court finally clarify whether, and how, Congress can alter the “irreducible constitutional minimum” of Article III standing?  We will know soon enough.