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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: 



   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
  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

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