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46 Fla. St. U. L. Rev. 169 (2018-2019)
Leaving Class Action Plaintiffs with Too Many Legs to Stand on: The Inconsistent Application of Article III Standing Requirements in Data Breach Cases

handle is hein.journals/flsulr46 and id is 179 raw text is: LEAVING CLASS ACTION PLAINTIFFS WITH TOO MANY LEGS TO STAND ON: THE INCONSISTENT APPLICATION OF ARTICLE III STANDING REQUIREMENTS IN DATA BREACH CASES CHRISTINA BEHAN I. INTRODUCTION ............................................................ 169 II. THE COMMON LAW DEVELOPMENT OF ARTICLE III STANDING........ .......... 171 A. The Troublesome Injury in Fact Element .......... ................. 173 III. THE CIRCUIT SPLIT ....................................................... 174 A. Standing Based on Increased Risk of Identity Theft........ ............ 175 B. Increased Risk of Identity Theft is Insufficient to Meet the Standing Requirements .................................................. 177 C. The Negative Impact of the Circuit Split ............................. 180 IV. THE SUPREME COURT'S PRECEDENT ON INJURY IN FACT REQUIREMENTS...... 182 A. Analysis of the Cases and the Stance the Supreme Courts Would Likely Take on the Circuit Split......................................... 184 1. Analysis of the Sixth, Seventh, Ninth, and D.C. Circuits ..................... 184 2. Analysis of the Third, Fourth, and Eighth Circuits ...... ........... 188 V. PROPOSED INJURY IN FACT STANDARD TO RECTIFY THE CIRCUIT SPILT.......... 189 A. Policy Considerations for the Statutory Proposed Standard .............. 192 B. Impact the Proposed Balancing Test Will Have on the Federal Courts...... 194 VI. CONCLUSION.............................................................. 195 I. INTRODUCTION While technological innovations over the past 30 years have made life more efficient and comfortable, those advances come at a price. Private information is now exceedingly easier to obtain without the individual's knowledge or consent. In today's digital age of online banking, quick-pay by using a phone, and automatic deposits of paychecks, large amounts of personal information are stored on online databases. Although these technological advances make life easier, they put individuals' information at risk to be misused by criminals. Online hackers make it their job to breach servers carry- ing personal information, presumably to misuse that information for their own personal gain.' The companies or agencies entrusted with storing this private information have a responsibility to keep that information secure,2 but this can be challenging when highly moti- vated hackers work around the clock to breach those servers. * Florida State University College of Law, J.D. Candidate, 2019. Special thanks to Professor David Landau for guidance throughout the note-writing process. I also thank my mom and grandma, Mary Behan and Felicia Chiapparelli, for all their love and support. 1. See Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693 (7th Cir. 2015). 2. Michael Hooker & Jason Pill, You've Been Hacked, and Now You're Being Sued: The Developing World of Cybersecurity Litigation, 90 FLA. B.J. 30, 34 (2016).

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