634
Ginsburg, J., dissenting
II
The purpose and legislative history of the Privacy Act, as well as similarly designed statutes, are in harmony with the reading of § 552a(g)(4) most federal judges have found sound. Congress sought to afford recovery for "any damages" resulting from the "willful or intentional" violation of "any individual's rights under th[e] Act." § 2(b)(6), 88 Stat. 1896 (emphasis added). Privacy Act violations commonly cause fear, anxiety, or other emotional distress—in the Act's par-lance, "adverse effects." Harm of this character must, of course, be proved genuine.3 In cases like Doe's, emotional distress is generally the only harm the claimant suffers, e. g., the identity theft apprehended never materializes.4
trative practice."); INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987) ("An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference,' than a consistently held agency view." (quoting Watt v. Alaska, 451 U. S. 259, 273 (1981))).
3 Circuit Judge Michael, who dissented from the Fourth Circuit's judgment as to petitioner Buck Doe but agreed with his colleagues on this point, noted: "[A]dverse effects must be proven rather than merely presumed . . . ." 306 F. 3d 170, 187 (2002) (opinion concurring in part and dissenting in part). Doe had declared in his affidavit that "no amount of money could compensate [him] for worry and fear of not knowing when someone would use [his] name and Social Security number to establish credit, a new identity, change [his] address, use [his] checking account or even get credit cards." App. 15. Doe's several coplaintiffs, against whom summary judgment was entered and unanimously affirmed on appeal, made no such declaration.
4 The Court asserts that Doe's reading of § 552a(g)(4)(A) "is at odds with the traditional understanding that tort recovery requires . . . proof of some harm for which damages can reasonably be assessed." Ante, at 621. Although that understanding applies to common negligence actions, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 165 (5th ed. 1984) (cited ante, at 621), it is not the black letter rule for privacy actions. See 3 Restatement (Second) of Torts § 652H, p. 401 (1976) ("One who has established a cause of action for invasion of his privacy is entitled to recover damages for . . . his mental distress proved to have been suffered if it is of a kind that normally results from such an
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007