Following the recent decision of the Supreme Court in FAA v. Cooper, EPIC has set out proposed changes to the Privacy Act that would compensate individuals for provable nonpecuniary harms caused by willful violations of the Privacy Act. In Cooper, the Supreme Court held that the Privacy Act "does not unequivocally authorize" compensatory damages for mental or emotional distress. Justice Sotomayor, joined by Justices Ginsburg and Breyer, wrote in dissent that "the primary, and often only, damages sustained as a result of an invasion of privacy are . . . mental or emotional distress." EPIC recommended that the Privacy Act explicitly define "actual damages" to include provable mental and emotional distress. EPIC's letter follows an earlier request from Senator Daniel Akaka (D-HI) for comment on S.1732, the Privacy Act Modernization for the Information Age Act of 2011. For more information, see, EPIC: FAA v. Cooper and EPIC: The Privacy Act of 1974.
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by Ryan Calo, A. Michael Froomkin,