Spokeo Case a Good Reminder to Balance Interests, Open Blinds

For some time now, thinkers, corporate executives and other influentials have made it a point to compare data to oil. The thought process, presumably, in this analogy is that the revolution data is driving is akin to the one Texas tea kicked off in the latter half of the 19th-century. There is no denying data’s transformative powers, but comparing it to oil is selling it short. A more appropriate comparison would be to the sun. The sun is, after all, the most important source of energy for life on Earth that everyone can access.

It’s a safe bet that many software developers agree. Data powers every product and service that developers are tinkering with and creating. Data is fueling new ideas and making us healthier and more prosperous. Against this backdrop, a recent U.S. Supreme Court ruling becomes all the more interesting.

You will be excused if your court watchers failed to let you know that in May, the Supreme Court handed down a ruling in Spokeo, Inc. v. Robins that could have had a profound effect on how developers operate in today’s digital economy. The case essentially boiled down to whether a Virginia man could sue Spokeo, a data broker. In the case, Thomas Robins alleged his job search was hampered because Spokeo was displaying incorrect information to portray him on the company’s website. The Supreme Court ultimately ruled in Spokeo’s favor 6-2, saying Robins did not suffer “concrete” harms.

So why is all this important for developers? In short, a ruling in favor of Robins would have turned the software ecosystem that we all appreciate and depend on upside down, creating considerable problems for developers and consumers alike. Had the high court agreed with Robins’ argument that his job prospects were hindered because a website was using inaccurate information, speculative trial lawyers would flood the court system with spurious litigation all in the hopes of turning a quick profit. (For regular readers of the Alliance blog, we’ve seen this act before with patent trolls.) This new landscape would all but ensure only the richest and most established companies could defend themselves (and stay in business). Small- and medium-sized enterprises who hope to create the next big thing would be forced to consider whether defending themselves against frivolous lawsuits is a cost worth staying in business for. In many respects, the new marketplace that would have been created had Spokeo lost the case would have led to less competition and higher costs for consumers.

Developers are good data stewards, and value consumer transparency and trust because their growth depends on it. Virtually every business and the developers who work for them are candid with users on what data they collect, how it is used, and who has access to it. Indeed, developers are practicing data’s golden rule: they are collecting and using their customers’ data in the same manner they would want their own data collected and used. But even after implementing these best practices, concrete harms might present themselves. In those instances savvy consumers hold developers and companies accountable by taking their business elsewhere, or in the most extreme cases, seek legitimate relief in the court system.

Data and the software it powers are undoubtedly making the world a better place. It is the foundation — the sunlight — of our new digital world, helping new, transformative ideas and products grow. While policymakers in Washington and in statehouses across the country are right to pay close attention to important issues like data use and consumer privacy, they should not be antsy to enact short-sighted laws and regulations. They should instead give great care to the interests of both developers and consumers, ensuring a thoughtful and balanced approach to policymaking. The United States has long been the world’s creative and economic hub, in large part because of “permission-less” innovation that our leaders have enabled. Policymakers would be wise to let this ecosystem develop, taking the necessary steps to nurture and encourage growth along the way. Burdensome laws and regulations that tackle potential threats or inconsequential privacy concerns, and not actual, concrete harms will slow innovation, ultimately hurting consumers rather than helping them.



Geoff Lane
U.S. Director of Policy and Government Relations