•  
  •  
 

Publication Date

1-31-2024

Abstract

There is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been used for some harmful purpose, such as identity theft or fraud. Essentially, the question is whether the injury alleged is speculative. This Note advances the theory of bailment as a solution to whether the injury-in-fact has occurred. Under this approach, customers who give their PII to an entity will be treated as bailors and the entities will be treated as bailees. This approach would effectively redefine the injury to be treated as a breach of bailment. This solution is best achieved through Congressional action pursuant to its interstate commerce powers. Through legislative action, a comprehensive scheme may be put into place that not only creates bailments, but also provides for statutory damages. Statutory damages will account for lack of evidence of economic harm and the willfulness of the bailee’s conduct.

Download

Share

COinS