Data Breach and Standing: A Royal Mess

March 6, 2017 By Stephen Embry
Advisen

Early last month, the 4th Circuit took its turn in defining what constitutes constitutional standing where there is a theft of data but no evidence of actual harm yet. In Beck et al. v. Robert A. McDonald, Case No. 15-1395; Watson v. Robert A. McDonald, Case No. 15-1715 (4th Cir., Feb. 6, 2017) (Diaz, J), the 4th Circuit,  relying on the 2013 SCOTUS decision in Clapper v. Amnesty International, the Court explained that standing based on the mere threatened injury of future identity theft is too speculative to supply the “imminent threat” of harm for Article III standing. The 4th Circuit added its own ingredient to the stew of conflicting opinion on this issue holding that standing would exist where there was evidence or an allegation that the data thief intentionally targeted, accessed and/or misused the comprised personal information.

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