Thursday, August 23, 2007

Substantial potential economic losses don't cut

A plaintiff seeking compensation for having personal information compromised has to face the hurdle of needing to prove damages. Under a conventional cause of action for negligence, harm is an essential element. If there is no harm, there's no negligence. No negligence, no cash. Just a risk of harm or an increased risk of harm is not enough.

This was recently affirmed by a US federal appeals court, which denied a class action brought following the release of personal information of customers of Old National Bancorp. See Wired's coverage:

Threat Level - Wired Blogs

Tens of thousands of Old National Bancorp customers whose personal and financial information was hijacked by a computer hacker cannot recover damages from the Indiana banking institution who lost the data in 2005, a federal appeals court ruled Thursday.

In dismissing a proposed class action against Old National Bancorp, the 7th U.S. Circuit Court of Appeals said damages were unavailable to victims of data theft if those victims did not suffer economically.

The three-judge panel of the circuit, mirroring decisions of federal courts in Ohio, Minnesota, Arizona and Michigan, ruled (.pdf): "Without more than allegations of increased risk of future identity theft, the plaintiffs have not suffered a harm that the law is prepared to remedy."

The plaintiffs did not allege direct financial loss and did not claim they had been the victim of identity theft. They alleged they suffered "substantial potential economic damages" and demanded compensation for emotional harm out of fear they would suffer economic damages by those who stole their information.

The bank's customers also demanded a "monitoring procedure to insure prompt notice to plaintiffs of any attempt to use their confidential personal information stolen from the defendants."

The appeals court also ruled that the law in Indiana, where the bank is located, did not protect the customers either.

"Had the Indiana Legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the court wrote.

The court added that the plaintiffs "have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law."

The court noted that the investigation into the security breach was under seal. But the judges added that "the scope and manner of access suggests that the intrusion was sophisticated, intentional and malicious."

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