The US Supreme Court heard arguments on Wednesday in FAA v. Cooper. At issue is whether "actual damages" recoverable for "willful and intentional" violations of the Privacy Act include mental and emotional damages. A federal appeals court held that Congress "unambiguously" intended to allow recovery of such non-pecuniary damages when it drafted the Privacy Act. The Government argued that the term "actual damages" is ambiguous, and that the Court should adopt a narrower interpretation in light of the Privacy Act's waiver of sovereign immunity. EPIC filed a brief in support of respondent Cooper and argued that proper enforcement of the Privacy Act requires recovery of a broad range of provable damages, including mental and emotional distress, which are the common and expected injuries resulting from privacy violations. For more information, see EPIC: FAA v. Cooper.
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Communications Law and Policy
Jerry Kang and Alan Butler