Seventh Circuit Rejects Claims Against College Board by Private Individuals for Sale of Personal Information
November 20, 2015
On Wednesday, the Seventh Circuit held in Silha v. ACT, Inc. (7th Cir. 2015) that students who had taken the ACT and SAT did not have standing to sue for the alleged sale of their personal information. The Seventh Circuit pointed to the fact that even though the use of the test-takers' information had economically enriched the College Board, the test-takers were not economically injured by the use. Several claims had been made by the plaintiffs including one for an invasion of privacy, akin to a commercial misappropriation claim. This decision raises some interesting issues. First, if the plaintiffs had been celebrities taking the SAT's whose personal information was independently commercially valuable would the outcome be different? It seems like if a teenage Hillary Duff, Selena Gomez, Taylor Swift or Justin Bieber had sued, they would have had standing. They still might not have a winning case, but they would have been able to claim an economic injury for the unlicensed sale of personal data. Second, there are some similar questions that have arisen in the series of Facebook lawsuits by users suing over sponsored advertisements that Facebook made using their identies. The trial courts have split over whether the fact that Facebook used the identity means that there was an economic injury to the user -- who should have been paid for the use -- or instead if because the user does not have an independently commercially valuable persona there can be no claim. The case also raises larger questions about whether and when consumers will have standing to sue to protect the use and sale of their data.