Article III Standing Absent, Given Lack Of Privacy Policy Violation

Richard Raysman is a Partner in our New York office

Although acceding to the terms of its privacy policy is now seemingly part and parcel of using almost every website, such ubiquity does not seem to have increased anyone's desire to read them. Generally lengthy and couched in legalese, most users loathe to investigate the terms and conditions contained therein. True, some industrious users do take in the entirety of the policies. In addition, some even more motivated users have in recent years taken an additional step and begun to sue based on supposed violations of the policies. For example, one such user recently brought a claim against the advocacy organization AARP based on purported violations of its use of the personally identifiable information of its users. See Austin-Spearman v. AARP and AARP Services Inc., --- F. Supp. 3d ----, 2015 WL 4036206 (D.D.C. June 30, 2015), amended, 2015 WL 4555098 (D.D.C. July 28, 2015). The conclusions reached by the court discussed below indicate that although the plaintiff claims to be a scrupulous reader of privacy policies, she may not in fact really understand both the terms of AARP's privacy policy, much less the theories behind any injury deriving from a claimed violation of the policy.

Facts

As characterized by the court, plaintiff Ethel Austin-Spearman (Austin-Spearman) is an internet savvy woman, despite not being in a demographic (over age 50) generally considered well-versed in online life. To wit, Austin-Spearman joined Facebook in 2007, and is a frequent user of its site, as well as many others. Whenever she registers for a new online service, she fastidiously reads the website's Terms of Service and Privacy Policy.

In 2010, Austin-Spearman navigated to the website of AARP, an organization which provides litigation and lobbying efforts on behalf of its members, as well as myriad discounts to "shopping, dining, and travel as well as financial and insurance-related products and services." In order to qualify for membership in AARP, the applicant must be 50 years or older. Austin-Spearman purchased a three-year AARP membership for $43, and in order to derive benefits from this membership, then created an online AARP account. To establish this account, she entered the required registration information and viewed and agreed to AARP's Privacy Policy.

Section 4 of the Privacy Policy, which is the provision at the center of the dispute, is labeled Information We Collect From You and reads:

We...