Characterizing the Harms of Compromised Genetic Information for Article III Standing in Data Breach Litigation

By Terry Wong

As direct-to-consumer genetic testing has proliferated, individuals face a heightened risk of having their genetic information exposed in data breaches. In response to these breaches, individuals that turn to the federal courts as an avenue for recovery must overcome the legal barriers that have often frustrated victims in traditional data breach contexts. In particular, these plaintiffs have struggled due to the circuit split among the U.S. courts of appeals over whether certain harms are sufficient to confer Article III standing in data breach cases. While federal courts continue to debate over the sufficiency of traditional data breach harms, compromises of genetic information raise exceptional considerations and harms that should favor the conferral of Article III standing.

This Note analyzes that the implications of data breaches involving compromised genetic information that justify an expansive approach to the conferral of Article III standing. Part II of this Note surveys the growing prevalence of data breaches and discusses the common legal obstacles that victims face in seeking recovery against breached entities. Part III outlines the relevant Article III standing requirements and reviews the circuit split among the U.S. courts of appeals by focusing on the primary hurdle for data breach victims — establishing injury in fact. Part IV raises and analyzes the exceptional features and implications of data breaches involving genetic information. In doing so, this Part characterizes the potential harms resulting from genetic information compromise and discusses how they should impact the Article III standing analysis to satisfy the injury-in-fact requirement.

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