As CPW previously reported, President Biden nominated D.C. Circuit Judge Ketanji Brown Jackson to the Supreme Court to fill a vacancy opened when Justice Stephen Breyer announced his retirement. Judge Jackson graduated with honors from Harvard University and Harvard Law School, where she served as editor of the Harvard Law Review. Following her graduation, she clerked for Justice Stephen Breyer and served as a public defender. She was confirmed to serve as a judge on the U.S. District Court for the District of Columbia in 2013. She occupied this role until last year when she was confirmed to the U.S. Court of Appeals for the D.C. Circuit last year. Judge Jackson has ruled upon over 500 cases during her tenure on the bench. Further information regarding her prior rulings on issues that may arise in data privacy and cybersecurity litigations is provided below.  

I. Article III Standing

As readers of CPW already know, a party wishing to sue in federal court bears the burden of establishing Article III standing, which requires that a plaintiff demonstrate: (1) an injury in fact; (2) the injury was caused by the defendant’s conduct; and (3) the injury can likely be redressed by a favorable judicial decision. Five years after the Supreme Court’s significant holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, the Court reconsidered the question of what constitutes an “injury in fact” under Article III in Ramirez. In doing so, the Court held that “[o]nly plaintiffs concretely harmed by a defendant’s statutory violation have Article III standing to seek damages against that private defendant in federal court.” (emphasis added). The Court reaffirmed that “Article III standing requires a concrete injury even in the context of a statutory violation,” and it was not the case 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.” As the Court explained, “[a]n injury in law is not an injury in fact.” The Court’s opinion resolved a circuit split on whether increased risk of future harm could constitute an injury in fact sufficient to confer standing.

In total, Judge Jackson has sat on a D.C. Circuit panel in approximately 40 cases addressing Article III standing. In many of those cases, Judge Jackson supported the dismissal of cases for a plaintiff’s failure to demonstrate the presence of Article III standing. These cases reiterated the well-established principle that alleging an injury in fact that is concrete and particularized and actual or imminent is crucial to surviving a motion to dismiss for lack of Article III standing. Consistent with her rulings on other legal issues, Judge Jackson’s standing opinions are consistently well-reasoned and discuss an otherwise nuanced topic in an accessible manner. For example, in one of Justice Jackson’s most cited cases discussing standing, she held that the plaintiff did not have an injury in fact and specifically lacked an economic injury. In reaching her conclusion, she provided two methodical reasons for rejecting the plaintiff’s alleged economic injury and finding that plaintiff had no Article III standing. 

Additionally, in Betz v. Aidnest, Judge Jackson dismissed a Telephone Consumer Protection Act (“TCPA”) suit on jurisdictional grounds before even considering whether the plaintiff alleged a plausible claim. 2018 U.S. Dist. LEXIS 183632 (D.C.C. Oct. 26, 2018). Judge Jackson adopted the magistrate judge’s report and recommendation, dismissing the plaintiff’s suit for lack of personal jurisdiction. In another case where the plaintiff sued an organization for allegedly violating its internet-usage privacy policy, Judge Jackson dismissed the case because the plaintiff lacked Article III standing. 

Judge Jackson reasoned that the plaintiff did not allege that the organization violated its privacy policy, so no cognizable injury could have resulted; moreover, it was implausible that the plaintiff suffered economic harm.

II. Rulings Regarding Consumer Privacy and Other Related Areas

In consumer privacy class actions, Judge Jackson has additionally demonstrated a pragmatic willingness to approve class action settlements under appropriate circumstances. For example, Judge Jackson’s record includes a sizeable TCPA settlement. See Rogers v. Lumina Solar, Inc., 2020 U.S. Dist. LEXIS 108259 (D.D.C. June 19, 2020). Judge Jackson also settled a class action under the Fair Credit Reporting Act (“FCRA”) requiring the defendant to remove certain utility liens from all consumer credit reports the defendant generated, not just those belonging to class members.

In the Fourth Amendment context, Justice Jackson has shown an ability to balance both the government’s and private citizens’ interests. In United States v. Campos, 2018 LEXIS 207456 (D.D.C. Dec. 10, 2018), Justice Jackson denied the defendant’s motion to suppress information collected from her cell phone during a wiretap. Justice Jackson reasoned that the federal court had jurisdiction to authorize the wiretap and that traditional law enforcement methods were insufficient to investigate the defendant’s alleged drug conspiracy.

Regarding Freedom of Information Act (“FOIA”), Justice Jackson has further shown a pragmatic approach to determining whether the public should access government records. Justice Jackson has both denied and approved citizens’ FOIA requests. In EPIC v. Department of Justice, 13-cv-1961 (D.D.C. 2013), Justice Jackson ordered the Department of Justice to provide additional information justifying its decision to withhold certain records before ultimately ruling that the records were exempt from disclosure.

III. Conclusion

In addition to the observations and trends noted above, Judge Jackson’s rulings on privacy rights do not appear to be substantively different from those of Justice Breyer. Many consider Judge Jackson ideologically similar to Justice Breyer, and her experience clerking for him undoubtedly shaped her jurisprudence. Justice Breyer was fairly reliable in upholding digital privacy rights. For example, Justice Breyer sided in favor of digital privacy in Van Buren v. United States, and he penned a partial dissent in Barr v. Association of Political Consultants. Judge Jackson has given no reason to believe she would rule much differently. 

However, one thing is for certain: if confirmed, Judge Jackson will have substantially more opportunities to shape data privacy laws in the years to come.