Connolly: Yes to Privacy Act Liability for Mental and Emotional Distress

A couple of years ago I wrote here about the Supreme Court case denying that a person could collect damages from the government under the Privacy Act based on mental and emotional distress. It’s a narrow point, but an important one, because the harm privacy invasions produce is often only mental and emotional distress. If such injuries aren’t recognized, the Privacy Act doesn’t offer much of a remedy.

Many privacy advocates have sought to bloat privacy regulation by lowering the “harm” bar. They argue that the creation of a privacy risk is a harm or that worrisome information practices are harmful. But I think harm rises above doing things someone might find “worrisome.” Harm can occur, as I think it may have in this case, when one’s (hidden) HIV status and thus sexual orientation is revealed. It’s shown by proving emotional distress to a judge or jury.

Rep. Gerry Connolly (D-VA) has introduced the fix for the Supreme Court’s overly narrow interpretation of the Privacy Act. His Safeguarding Individual Privacy Against Government Invasion Act of 2014 would allow for non-pecuniary damages—that is, mental and emotional distress—in Privacy Act cases.

It’s a simple fix to a contained problem in federal privacy legislation. It’s passage would not only close a gap in the statute. It would help channel the privacy discussion in the right way, toward real harms, which include provable mental and emotional distress.