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102 B.U. L. Rev. 793 (2022)
Privacy Harms

handle is hein.journals/bulr102 and id is 815 raw text is: PRIVACY HARMS DANIELLE KEATS CITRON* & DANIEL J. SOLOVE** ABSTRACT The requirement of harm has significantly impeded the enforcement of privacy law. In most tort and contract cases, plaintiffs must establish that they have suffered harm. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, the Supreme Court ruled that courts can override congressional judgment about cognizable harm and dismiss privacy claims. Case law is an inconsistent, incoherent jumble with no guiding principles. Countless privacy violations are not remedied or addressed on the grounds that there has been no cognizable harm. Courts struggle with privacy harms because they often involve future uses of personal data that vary widely. When privacy violations result in negative consequences, the effects are often small-frustration, aggravation, anxiety, inconvenience-and dispersed among a large number of people. When these minor harms are suffered at a vast scale, they produce significant harm to individuals, groups, and society. But these harms do not fit well with existing cramped judicial understandings of harm. This Article makes two central contributions. The first is the construction of a typology for courts to understand harm so that privacy violations can be tackled and remedied in a meaningful way. Privacy harms consist of various different types that have been recognized by courts in inconsistent ways. Our Jefferson Scholars Foundation Schenck Distinguished Professor in Law, Caddell and Chapman Professor of Law, University of Virginia School of Law; Vice President, Cyber Civil Rights Initiative; 2019 MacArthur Fellow. * John Marshall Harlan Research Professor of Law, George Washington University Law School. We would like to thank research assistants Kimia Favagehi, Katherine Grabar, Jean Hyun, Austin Mooney, Julia Schur, and Rebecca Weitzel. Many scholars provided extremely helpful feedback, including Kenneth Abraham, Alessandro Acquisti, Rachel Bayefsky, Ryan Calo, Ignacio Cofone, Bob Gellman, Woodrow Hartzog, Chris Hoofnagle, Lauren Scholz, Lior Strahelivitz, Ari Waldman, Benjamin Zipursky, the participants at our workshop at the Privacy Law Scholars Conference, and students in Neil Richards's Advanced Privacy Law and Theory class at Washington University School of Law. Jackson Barnett and fellow editors at the Boston University Law Review provided superb feedback during our delightful editing process. 793

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