Back in July of last year, I wrote about a case in the Supreme Court called FAA v. Cooper. In that Privacy Act case, a victim of a government privacy invasion had alleged “actual damages” based on evidence of mental and emotional distress.


Cooper, a recreational pilot who was HIV‐​positive, had chosen to conceal his health status generally, but revealed it to the Social Security Administration for the purposes of pursuing disability payments. When the SSA revealed that he was HIV‐​positive to the Department of Transportation, which was investigating pilot’s licenses in the hands of the medically unfit, the SSA violated the Privacy Act. Cooper claimed that he suffered mental and emotional distress at learning of the disclosure of his health status and inferentially his sexual orientation, which he had kept private.


The question before the Court was whether the Privacy Act’s grant of compensation for “actual damages” included damages for mental and emotional distress. This week the Court held … distressingly … [sorry, I had to] … NO. Under the doctrine of sovereign immunity, the Privacy Act has to be explicit about providing compensation for mental and emotional distress. Justice Alito wrote for a Court divided 5–3 along traditional ideological lines (Justice Kagan not participating).


The decision itself is a nice example of two sides contesting how statutory language should be interpreted. My preference would have been for the Court to hold that the Privacy Act recognizes mental and emotional distress. After all, a privacy violation is the loss of confident control over information, which, depending on the sensitivity and circumstances, can be very concerning and even devastating.


The existence of harm is a big elephant in the privacy room. Many advocates seem to be trying to lower the bar in terms of what constitutes harm, arguing that the creation of a risk is a harm or that worrisome information practices are harmful. But I think harm rises above doing things someone might find “worrisome.” Harm may occur, as in this case, when one’s (hidden) HIV status and thus sexual orientation is revealed. Harm has occurred when one records and uploads to the Internet another’s sexual activity. But I don’t think it’s harmful if a web site or ad network gathers from your web surfing that you’ve got an interest in outdoor sports.


The upshot of Cooper is this: Congress can and should amend the Privacy Act so that the damages it must compensate when it has harmed someone include real and proven mental and emotional distress.