Suchergebnisse

Today's world runs on data. The creation and improvement of technological products and services depend on the exchange of data between people and companies. As people's lives become more digitized, companies can collect, store, and analyze more data, and in turn, create better technology. But, because consumer data can be very sensitive (think Social Security numbers, GPS location, fingerprint recognition, etc.) this cyclical exchange comes with serious privacy risks; especially in light of more frequent and sophisticated cyberattacks. This creates a face-off between technological growth and privacy rights. While it makes sense that people should be willing to subside some of their privacy in exchange for technological enhancements to things like communication, health, and entertainment, companies should also be doing their best to prevent and respond to cyberattacks. This Note highlights the urgency created by the combination of the digitization of consumer lives, sophisticated hackers, and inadequate data privacy laws. It explains that, because Congress is yet to legislate and the Supreme Court's findings in Clapper v. Amnesty International USA and Spokeo, Inc. v. Robin created federal circuit splits, data privacy laws are either non-existent or muddled. As a result, it is increasingly difficult for companies or consumers to know their rights, responsibilities, and liabilities in this sphere. Moreover, this Note calls for Congress to establish federal compliance measures with respect to corporate use of consumer data and handling of cyberattacks. However, this Note argues that Congress will continue to remain silent and, therefore, the Supreme Court, by revisiting the constitutional standing issues presented in Clapper and Spokeo, can be the one—for now—to provide much needed guidance with respect to data privacy.

Abstract: In Clapper v. Amnesty International, the Supreme Court ruled that lawyers and journalists do not have standing to challenge government warrantless wiretapping of international correspondence under the 2008 amendments to FISA. The Court refused to recognize the increased costs of protecting confidential communications as injuries-in-fact unless surveillance is "certainly impending." But more tellingly, the plaintiffs did not even allege the real injury at stake—the loss of a reasonable expectation of privacy for groups the government targets. The standing doctrine forces parties and courts to reason insincerely and blocks potentially meritorious lawsuits. Although there have been proposals to reform the standing doctrine, courts say that the Constitution requires it. The constitutional justifications advanced do not withstand scrutiny. Scholars and courts justify constitutional standing doctrine in terms of separation of powers and the ability to waive one's rights. Both justifications are rooted in the countermajoritarian difficulty, which posits that in a democracy, courts cannot legitimately interfere with majority rule except to protect minority rights. Both justifications fail because each confuses the preferences of the majority with democracy. To the contrary, democracy also requires the rule of law, which is predicated on principled adjudication independent of majority preferences. Thus, the bare invocation of majority rule is not sufficient to justify the constitutional standing doctrine.

This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the five-prong standing tests of the U.S. model, but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a quasi-public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to some extent it enables the Court to second guess the decisions of the different branches of government.

In its recent Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The decision interpreted the Supreme Court's decision in Summers v. Earth Island Institute, and concluded that general notice and appeal provisions in a statute that do not establish an explicit public right to information from the government are insufficient to establish informational standing. The Wilderness Society decision indirectly raised the broader question of when Congress may modify common law injury requirements or even Article III constitutional standing requirements. Although the Wilderness Society decision relied on the implications of Summers, the Ninth Circuit would have been better advised to examine Justice Kennedy's concurring opinions in Lujan v. Defenders of Wildlife and Summers. His opinions suggest that Congress has significant authority to expand citizen suit standing as long as it carefully defines the statutory injuries it seeks to remedy. Wilderness Society is important because it is the first court of appeals decision that attempts to reconcile Summers and FEC v. Akins, the crucial informational standing case. Although the result in Wilderness Society may be correct, the Ninth Circuit failed to grasp the full complexities of the Supreme Court's standing jurisprudence. This Article argues how to best interpret Lujan, Summers, and Akins in determining how much authority Congress has to establish informational standing and other standing rights that have divided lower federal courts.