Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform

By Kardon, Alex | Harvard Journal of Law & Public Policy, Spring 2011 | Go to article overview

Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform


Kardon, Alex, Harvard Journal of Law & Public Policy


INTRODUCTION
  I. THE NARROW CONSTRUCTION CANON:
     HISTORY, CRITIQUE, AND RECENT USE
 II. STATUTORY CONSTRUCTION
     AND STARE DECISIS
III. THE PRIVACY ACT CONTEXT
     A. The District Court Decision in Cooper
     B. The Ninth Circuit Decision in Cooper
     C. The Reasonableness of Both
        Cooper Decisions
     D. Pre-Cooper Decisions and
        Residual Ambiguity
        1. Actual Damages and the Text
        2. Beyond the Damages Provision Text
           a. Deterrence, Compensation, and
              Citizen Enforcement
           b. Limited Government Liability
           c. Broad Protection from
              Dignitary Harms
           d. Shared Purpose with
              Privacy Torts
           e. Vindication of the Constitutional
              Right to Privacy
           f. Additional Explicit
              Legislative History
           g. Inferences from Legislative
              History: Punitive Damages and
              Theories of Compromise
           h. Legislative History and
              the Privacy Protection
              Study Commission
        3. Analogies to Other Statutes
        4. Recap: Actual Damages Under the
           Standard Modes of Interpretation
 IV. DOE V. CHAO
     A. Combining the Chao Holding with a
        Narrow Reading of Actual Damages
     B. The Chao Methodology and Its Possible
        Implications
        1. Justice Souter on the Text
        2. Justice Ginsburg on the Text
        3. Possible Implications of Chao for
           Interpreting Actual Damages
CONCLUSION: A CALL FOR
  LEGISLATIVE REFORM

INTRODUCTION

In 1974, in the wake of Watergate, Congress passed the Privacy Act (the Act). (1) Broadly, the purpose of the Act is to regulate the treatment of personal information by the federal government. While the Act places certain requirements on the government, (2) it also enables individuals to take affirmative steps to ensure that their information is being protected. (3) Specifically, individuals may generally access personal records stored by the government, (4) request that the government correct errors in personal records, (5) request review of government refusals to correct alleged errors, (6) and bring civil lawsuits for any failures by the government to comply with the Act that result in an individual adverse effect. (7)

While the general distrust of the federal government in the aftermath of Watergate created a political climate ripe for passing the Act, (8) concerns about the federal government's increasing use of computers to collect, store, manipulate, and distribute personal information also played a role in Congress approving the Act. (9) The Act received strong bipartisan support (10) and passed with unusual speed because of time pressure created by the stormy political climate. (11) Considering the politics of urgency surrounding the Act when it was passed, it is perhaps no surprise that the Act is both supported by limited legislative history (12) and commonly targeted by critics, (13) a situation bound to produce work for the courts.

Among the provisions of the Act that have generated significant litigation, perhaps the most important for the Act's efficacy is the provision explaining the damages available to an adversely affected individual who brings suit against the federal government for mistreatment of personal information or other failures to comply with the Act. (14) This damages provision reads:

   In any suit brought under the provisions of subsection g(1)(C) or
   (D) of this section in which the court determines that the agency
   acted in a manner which was intentional or willful, the United
   States shall be liable to the individual in an amount equal to the
   sum of--(A) actual damages sustained by the individual as a result
   of the refusal or failure, but in no case shall a person entitled
   to recovery receive less than the sum of $1,000; and (B) the costs
   of the action together with reasonable attorney fees as determined
   by the court. … 

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