A recent opinion came out of the U.S. District Court for the District of Columbia that denies defendant's motion to dismiss a case against the Transportation Safety Administration arising out of the loss of hard drive containing the personal information of 100,000 TSA employees (including names, SSNs, DOBs, bank account numbers, etc.).The plaintiff's alleged a violation of section 522a(3)(10) of the Privacy Act, which provides:

Each agency that maintains a system of records shall . . . establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained .

In various contexts, the defendants argued that the plaintiff's had not alleged actual damages, that damages should be construed as only encompassing "out-of-pocket" pecuniary loss, and that plaintiffs' concerns about harm were speculative and dependent on future events (e.g. criminal misuse of the plaintiff's personal information by third parties). The court analyzed the following injury allegations by plaintiffs:

"embarrassment, inconvenience, mental distress, concern for identity theft, concern for damage to credit report, concern for damage to financial suitability requirements in employment, and future substantial financial harm, [and] mental distress due to the possibility of security breach at airports."

In rejecting the defendant's motion to dismiss on the issue of injury/harm/damages, the Court focused on the "embarrassment... mental distress.... and concern" allegations. It held that those emotional distress allegations were not speculative nor dependent on future events. The court also noted that the plaintiffs conceded that they were not alleging "current, actual, financial loss" or seeking out-of-pocket expenses. The court cited a case interpreting the Privacy Act that held that actual damages were not limited to "pecuniary losses" and that actions under the Privacy Act could survive the motion to dismiss phase based on pain and suffering and non-pecuniary losses. In this case the allegation of emotional distress was sufficient to surviving a motion for summary judgment. There are several issues to address in this case: (1) First off, since the plaintiffs did not appear to allege "out-of-pocket" expenses related to the security breach, it does not appear that the logic of this case would apply to situations where a plaintiff incurs costs (e.g. credit monitoring) to head off potential future harm that could arise out of identity theft (e.g. bad credit, cleaning up credit reports, credit monitoring, etc.). Rather, this case focused on whether "emotional distress" or "concern" was itself actual damages or an adverse impact under the Privacy Act. So I am not sure it helps support the theory that out-of-pocket expenses post breach, pre-Identity Theft are actionable. (2) This case arose in the context of the Privacy Act, and in particular an alleged violation of a section intended to prevent "substantial harm, embarrassment, inconvenience." Since the intended harm includes "intangibles" such as embarrassment and inconvenience it seems that emotional distress can easily fall into that type of "injury." (3) Another contextual matter: the reason the plaintiffs have to establish actual damages is to satisfy a U.S. Supreme Court case that ruled that "actual damages" were necessary for a plaintiff to recover the $1,000 statutory penalty available under the Privacy Act. More research needs to be done to determine whether "damages" in a negligence context is the same as "actual damages" in the Privacy Act coverage. (4) It seems to me the logic employed here was a little loose. Most of the "emotional distress" and "concern" clearly ties to what might happen to the plaintiffs' personal information (e.g. concern for identity theft, concerning for damage to credit report, concern for damage to employment suitability, etc.). I suppose its possible that somebody could suffer emotional distress simply knowing their information was breached. However, its how that information might be used in the future after the breach that is actually of concern. It seems to me without some alleged facts (e.g. evidence of visits to a psychiatrist, starting anti-anxiety medication, evidence of depression) that this is fairly weak tea. I suppose courts are more lenient at the motion to dismiss phase (all you need to do is state a claim) and are likely to be more demanding on the evidentiary front if/when a motion for summary judgment is filed. (5) In my view, since the ruling was fairly conclusory and did not dive deep into the details concerning how to define "damages," I am not sure how persuasive this reasoning will be in other contexts.