E.D.La.: 4A and Art. III standing are distinct questions

Just because there’s no Fourth Amendment “standing” in bank records, that doesn’t mean that there’s no Article III standing to challenge interference with privacy in bank records. Hawkins v. Sanders, 2023 U.S. Dist. LEXIS 45000 (E.D. La. Mar. 16, 2023):

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed to ensure federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.

The Supreme Court has established that the “irreducible constitutional minimum” of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”

To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” A “concrete” injury must be “de facto”; that is, it must actually exist. “Concrete” is not, however, necessarily synonymous with “tangible.” The Supreme Court has held that an intangible harm may constitute a concrete injury. The Court has held:

Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, 555 U.S., at 496, 129 S. Ct. 1142 (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation … is insufficient to create Article III standing”); see also Lujan, supra, at 572, 112 S. Ct. 2130.

Defendants point to United States v. Miller for the proposition Plaintiffs lack an injury in fact because there is no constitutional right to privacy in bank records. In Miller, the Court affirmed the denial of a motion to suppress a banks’ production of the defendant’s checks, deposit slips, and financial statements in response to a faulty subpoena because the defendant had no legitimate expectation of privacy in his bank records under the Fourth Amendment. “The depositor takes the risk in revealing his affairs to another,” the Court stated, “that the information will be conveyed by that person to the Government.” However, Miller concerned a motion to suppress and the reasonable expectation of privacy standard under the Fourth Amendment, and the Supreme Court has made clear that the analysis for standing under the Fourth Amendment—whether the defendant had a personal expectation of privacy in the place searched or thing seized which is reasonable—is different from that of Article III standing. Standing under the Fourth Amendment is much narrower than Article III standing because “Fourth Amendment rights are personal in nature.” Ultimately, finding an expectation of privacy under the Fourth Amendment makes a separate Article III inquiry unnecessary because the personal nature of Fourth Amendment rights “already answer[s] many of the[] traditional standing inquiries.” The obverse is also true. Finding no expectation of privacy under the Fourth Amendment does not automatically answer the broader question of Article III standing. Under certain circumstances, plaintiffs can have standing to sue for injuries not personal to them—for example, third-party standing. Therefore, a lack of expectation of privacy in bank records under the Fourth Amendment—the narrower question—does not mean there is no Article III standing.

Instead, the Supreme Court’s analysis in Spokeo, Inc. v. Robbins remains instructive on whether an injury-in-fact has occurred for an intangible harm resulting from a statutory violation. “In determining whether an intangible harm constitutes an injury in fact, both history and the judgment of Congress play important roles.”

In this case, Plaintiffs allege that Defendants violated the Privacy Act, 5 U.S.C. 552a, in disclosing their bank records to the DA, causing Plaintiffs to suffer an invasion of privacy. They allege that the disclosure of this information to the DA caused it to be filed on a public forum—i.e., the court record—exposing Plaintiffs to the risk of identity theft. Following the analysis in Spokeo, invasion of privacy has long been recognized as a tort. Moreover, Congress has acted to create privacy interests in personal records transmitted to agencies covered by the Privacy Act and an accompanying cause of action for its violation. Considering this history and the judgment of Congress, this Court finds that the alleged invasion of privacy into bank records, exposing the Plaintiffs to the risk of identity theft, is a concrete harm that meets the injury-in-fact requirements.