In Acheson Hotels v. Laufer, a Dangerous Opportunity for SCOTUS to Make it Harder to Establish Informational Standing

This morning, the Supreme Court will hear argument in an interesting—and, unfortunately, salacious—case about Article III standing. Acheson Hotels v. Laufer is about whether a person with disabilities has the right to sue a hotel when the hotel fails to provide accessibility information on their website as required by the Americans with Disabilities Act, or ADA. 

The Constitution gives federal courts jurisdiction to hear “case[s] or controvers[ies].” From these three words, the Supreme Court has spun a complex doctrine that requires plaintiffs to allege that they have suffered (1) an actual or imminent injury (2) that can be fairly traced to the actions of the defendant and (3) can be redressed by a favorable ruling of the court. For the injury prong, plaintiffs must show that their injury is both particularized—that is, they are the ones who suffered the injury—and concrete—which, following Transunion v. Ramirez, essentially means that the injury is sufficiently analogous to one traditionally recognized in American courts. 

Article III standing was originally proposed as a means of testing whether the federal courts were infringing on the policymaking authority of the legislative and executive branches. But in cases like Acheson Hotels, the purpose of Article III standing has been flipped on its head: instead of preventing courts from infringing on the powers of the other branches, it is used by courts to limit the legislature’s power to create enforceable rights. 

Laufer claims that she suffered two injuries from Acheson Hotels’ failure to provide her with accessibility information: an informational harm from the denial of information itself and a stigmatic or dignitary harm from experiencing discrimination based on her status as a person with disabilities. Both of these harms have long been recognized in Americans courts, mostly in the context of the First and Fourteenth Amendments. 

Defendant Acheson Hotels argues that Laufer did not suffer any injury because she is a “tester.” Testers are people who test compliance with civil rights laws by purposefully subjecting themselves to potential discrimination. In a case called Havens Realty Corp. v. Coleman, the Supreme Court announced that testers have standing to bring civil rights claims. Like Laufer, the plaintiff in Havens Realty sought information that they had no plans to use. But Acheson Hotels says their case is different because the Court’s thinking on informational standing has evolved—and because Laufer was discriminated against online.

Unlike the plaintiff in Havens Realty, a representative at Acheson Hotels did not personally refuse to provide information to Laufer. Instead, Laufer navigated to Acheson Hotels’ website, looked for the accessibility information, and found none. Acheson Hotels maintains that Laufer merely observed a lack of information, and thus merely observed a harm that could potentially impact someone else who actually wanted to make a reservation at the hotel. But Laufer was not a mere observer—she was a user of the Acheson Hotels website, and as a user, personally experienced both the denial of information to which she had a right and the dignitary harm that comes from being discriminated against. 

Acheson Hotels and their amici attempt to make a big deal about this “observer” argument and essentially call into question the idea that a person can experience any harm online if the conduct that causes harm can be experienced by many people. This is a particularly unhinged view of Article III standing that the Court may well ignore in this case, but it does give a preview of the types of arguments industry will try to make in future online harms cases. 

What is more concerning is what the Court might do with informational standing in this case. Informational standing has been a mess since Spokeo v. Robins. Decades before Spokeo, the Court had established in two cases, Public Citizen v. DOJ and FEC v. Akins, that plaintiffs who had a statutory right to information and were denied that information had standing to sue. In Spokeo, the Supreme Court fashioned a new, convoluted test for the concrete injury prong of standing in statutory rights cases. In most instances, plaintiffs had to allege that they suffered an injury analogous to one traditionally heard in American courts, or to show that the legislature had identified a new “concrete” harm. But the Court also said that, in some situations, violating a person’s statutory right unquestionably causes concrete harm. Here, Justice Alito, who wrote the majority opinion in Spokeo, cited to Public Citizen and Akins as examples, saying the plaintiffs’ inability to obtain information they had a right to receive was an injury even without alleging any additional harm.

Following Spokeo, plaintiffs should have been able to satisfy Article III’s requirements by alleging that they suffered an informational injury by being denied information to which they had a statutory right. But lower courts struggling to apply Spokeo instead began to question whether every alleged injury was, in fact, concrete—including instances where plaintiffs alleged they had suffered an informational injury. Courts began to narrow the field of statutes that automatically conferred standing to a few select government sunshine laws like the Freedom of Information Act and to otherwise require allegations of consequential harm. The D.C. Circuit even shot down EPIC’s attempt to obtain privacy impact assessments that we alleged we had a right to under the E-Government Act because we had not alleged an adequate consequential harm from the denial of information. 

The confusion over the status of informational standing was further deepened in TransUnion v. Ramirez. One of the claims in TransUnion was that the plaintiffs failed to receive certain disclosures required under the Fair Credit Reporting Act, or FCRA, and that they had standing to bring this claim because they suffered an informational injury. The Court rejected this argument because the plaintiffs had actually received the required information, just at an earlier time. Essentially, the Court said that a person can’t suffer an informational injury when they actually received the information they claim they were denied. If the Court had stopped its analysis there, it would have done no further damage to information standing doctrine. Instead, Justice Kavanaugh, writing for the majority, seemed to endorse lower courts’ views that there are different kinds of informational injuries: ones that stem from the failure to receive information subject to public disclosure, which are concrete in and of themselves, and every other failure to receive information to which one is legally entitled, which require allegations of additional adverse effects. Kavanaugh cited two lower court decisions in support of this statement: Casillas v. Madison Avenue Assocs., Inc., a Seventh Circuit opinion authored by then-Judge Barrett involving a statutory right to information about the statutory process for verifying a debt, and Trichell v. Midland Credit Mgmt., Inc., an Eleventh Circuit opinion authored by D.C. Circuit Judge Katsas which doesn’t involve a clear statutory right to receive information.

While the distinction that Justice Kavanaugh and federal courts around the country have made between a few core sunshine laws and every other right to information makes little sense, there are some real distinctions among informational standing theories, including the circuit court cases that Kavanaugh cites in TransUnion. By separating out these theories, it may be easier to argue that plaintiffs have standing under each.

First, there are cases where a person alleges violation of a statutory or constitutional right to receive information that is not otherwise available. When such a right to information is violated, the person is essentially prevented from obtaining the desired information. This is the classic access to information injury described in Public Citizen and Akins. Examples include rights under open government laws, where the government is the keeper of the information, but also laws that give consumers, workers, students, and other groups rights to access information from companies and other institutions. For all of these rights of access, plaintiffs should not have to allege that they intended to use the information in any way—the failure to receive the information is, itself, concrete under Public Citizen and Akins, along with the bulk of First Amendment right-of-access cases.

Second, there are cases where a person alleges violation of a statutory right to receive information that is otherwise available but the legislature has determined must be communicated to a person in a certain form and at a certain time. Examples include statutes that require companies to disclose the process to dispute a debt or a person’s statutory rights to privacy. Casillas is one example of a case involving this theory of informational standing. Courts often find that this kind of informational injury requires showing consequential harm because the information itself is discoverable through means other than the statutorily mandated process. Courts also observe that many of these rights to information involve information that is meant to help people exercise their legal rights. In other words, these are often rights to procedural information, and Courts think that failure to receive procedural information can cause no harm unless it causes a person to sleep on their rights.

The better analogy for this type of informational injury may be found in commercial speech doctrine, not Public Citizen or Akins. One line of First Amendment caselaw, including Bigelow v. Virginia, recognizes that consumers have a right to receive lawful information from companies, even if that information is available from another source. So, if a law were to prohibit companies from communicating to consumers the procedure to dispute a debt, that law would cause a speech harm because it would prevent consumers from receiving information they have a right to receive. When a law instead requires a company to communicate the same information, the company’s failure to communicate the information causes the same harm to consumers. That is to say, from the consumer’s perspective, it does not matter whether the state prohibits the company from communicating or requires them to communicate and the company fails to do so—in both instances, the consumer fails to receive the information they have a right to receive. 

There is yet a third category of informational standing cases that do not allege violation of any specific statutory right to information, but instead allege that the defendant’s omissions of information were unfair, misleading, or were otherwise illegal. This is the Trichell case that Kavanaugh cited in TransUnion, where plaintiffs alleged that a company violated the Fair Debt Collection Practices Act’s prohibitions on unfair and misleading debt collection practices by sending them letters that essentially tried to trick them into paying a debt that they no longer had a legal obligation to pay. Plaintiffs alleged that the company was obligated to disclose information about the debt, including the fact that it was no longer legally owed and that making a payment on the debt would revive the debt and make it payable to the defendant. The problem in Trichell and similar cases is whether the plaintiff actually has a right to information. This is a merits question, not a standing question. For standing purposes, it is sufficient that plaintiffs allege that they have been denied information to which they have a right. 

Laufer seems to fall into the first category of informational standing cases: she alleges that the hotel had an obligation to provide her with information about accessibility, the hotel was the source of the information, the information was not available elsewhere, and the hotel failed to provide the information, which essentially prevented her from accessing the information. But if the Court gets to the informational standing issue in Acheson Hotels, it may not see things the same way. Instead, it may end up cementing the misguided allusions in Transunion into standing doctrine. And that would be bad for transparency all around.