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Seventh Circuit Holds that Retention of Personal Information in Violation of Cable Communications Policy Act Does Not in Itself Establish Standing

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In Gubala v. Time Warner Cable Inc., 846 F. 3d 909 (7th Cir. Jan. 20, 2017), the Seventh Circuit Court of Appeals held that a cable company’s failure to destroy personally identifiable information of former subscribers, without more, is insufficient to establish Article III standing. Plaintiff was a former subscriber to Time Warner’s cable services, who provided personally identifiable information to the company. Eight years after canceling his service, he inquired and learned that the information was still in the company’s possession. He sought injunctive relief for alleged violation of the Cable Communications Policy Act, which provides for the destruction of personally identifiable information when it is no longer necessary for the purpose collected, and there are no pending requests or court orders for access to the information. The district court dismissed for lack of standing, and the Seventh Circuit affirmed.

Plaintiff did not allege that the information had been misused, sold or given away by the company, nor even allege a fear that it might be. He asserted only that the retention of the information violated a privacy right or entailed a financial loss. The court acknowledged that there was some risk of harm, and the statute gives a cause of action to any person aggrieved by a violation of the destruction provision. But the plaintiff provided neither evidence nor even allegation that he, in fact, had been so aggrieved — only that he felt aggrieved. Thus he had not alleged any risk substantial enough to meet the “concreteness” test of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 2016), and the case was properly dismissed.