Ninth Circuit Rejects Privacy Suit by Plaintiff Who Suffered No Cognizable Injury
“The word ‘privacy’ is not a magical talisman in whose presence Article III’s inflexible standing requirements suddenly melt away.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation
WASHINGTON, DC—Today the U.S. Court of Appeals for the Ninth Circuit affirmed a trial court’s dismissal of a suit in which the plaintiff lacked standing to pursue her state wiretapping claims. The decision was welcome news for Washington Legal Foundation (WLF), which joined the U.S. Chamber of Commerce, NetChoice LLC, and the Interactive Advertising Bureau on a coalition amicus brief urging affirmance. The amicus brief was drafted by Megan Brown, Jeremy Broggi, and Joel Nolette of Wiley Rein LLP.
The appeal arose from a lawsuit alleging that Microsoft’s Clarity software tracks “mouse movements, clicks, keystrokes, URLs of web pages visited, and/or other electronic communications in real-time.” The complaint also alleged that while on the website, the plaintiff browsed for different products for sale by using her mouse to hover and click on certain products, typing words into the search bar, and selecting a product to add to her shopping car by clicking “add to cart”—though she never purchased anything. The trial court determined that browsing without buying is “not the type of private information that the law has historically protected.” Today the Ninth Circuit affirmed that judgment.
In their brief urging affirmance, amici argued that dismissal was consistent with the Supreme Court’s recent teaching in TransUnion LLC v. Ramirez on Article III’s need for “a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” The plaintiff here cannot satisfy that standard because her alleged harms are unlike those traditionally protected at common law (and Pennsylvania’s Wiretap Act cannot make them so). A unanimous panel of the Ninth Circuit agreed. In its view, the defendant’s conduct “seems most similar to a store clerk’s observing shoppers in order to identify aisles that are particularly popular or to spot problems that disrupt potential sales.”