gutting the privacy act

NYTimes | The Privacy Act of 1974 allows a person to sue a federal agency for intentionally disclosing personal, confidential information without permission. But the government is trying to limit the force of that law and make it harder to hold agencies accountable for such violations.

In Federal Aviation Administration v. Cooper, a case argued this week in the Supreme Court, the government contends that the statute allows a plaintiff to recover “actual damages” only for monetary losses, but not for emotional distress.

Stanmore Cooper brought the suit because in an exchange of data to identify medically unfit pilots, the Social Security Administration gave the Federal Aviation Administration confidential information that revealed that he was H.I.V.-positive and was receiving disability benefits. He was devastated when he learned of this revelation. He experienced anxiety, sleeplessness and other serious problems. He pleaded guilty to a misdemeanor for not disclosing his H.I.V. status to the F.A.A., but he sued the government for severe mental and emotional distress.

The Supreme Court held in 2004 that it is necessary to show actual damages in a lawsuit under the Privacy Act but did not say whether nonmonetary harm like emotional distress comes under that heading. In Mr. Cooper’s case, the United States Court of Appeals for the Ninth Circuit ruled that it does. It found support in Congress’s intent to provide relief for “any damages”; in the Supreme Court’s view that in privacy cases “the primary damage is the mental distress from having been exposed to public view”; and in the law in seven other federal circuits.

The government, however, contends that the statute does not explicitly allow damages for emotional distress claims. To counter this argument, Justice Ruth Bader Ginsburg pointed out that “the person who is subject to this, to this embarrassment, this humiliation, doesn’t have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest.” If Congress did not intend to allow damages for emotional distress, she said, “Then maybe Congress shouldn’t have passed this statute.”

The government’s restricted interpretation would gut the point of the Privacy Act, and in too many cases would allow agencies to act improperly with impunity.