Data Protection Harm

Data Protection Law - Consumer Protection Law

Data protection harm has become key in courts determining standing in data breach cases.  Data protection harm was analyzed in a case involving breaches and hacking of personal identifiable information (PII).  The 7th Circuit's attention was drawn where it reversed a district court ruling holding that where future harm suffices for standing (Remijas v. Neiman Marcus Group, LLC).  The court reasoned that hackers could potentially have a future affect by their very intention to hack personal information.

The court noted that the retail store offered every customer that was affected by the breach one year of free credit monitoring and ID theft protection. While the plaintiffs asserted a list of claims, they also alleged claims based on imminent injuries arguing on the increased risk of future credit fraudulent charges and their vulnerability to identity theft.  These accompanied their present injuries of the lost value of time trying to remedy their fraudulent charges and to protect themselves against identity theft.  They also alleged loss of control over their personal private information.  They argued that to an undetermined extent they have lost their privacy.

Reversing the district court was drawn on their reasoning that the effort to resolve credit issues and fraudulent charges and or to seek protection from the vulnerability of other possible identity theft clearly sets the basis for standing. The court balanced the consequence of weighing the future harm and the present uncertainty in favor of siding with the plaintiffs.

The court reasoned that it would be unfair to wait for the harm to occur from hacker’s activities, as it recognized that hackers inevitably will use the hacked information to execute future charges and use the identities of the plaintiffs.  The court did underscore that to merely lose personal information is insufficient to establish standing from data breaches.  The decision on the merits awaits.

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