This Comment explores the circuit split with regard to standing in data theft cases and proposes a solution for the Supreme Court to adopt. The federal circuits are divided between a more permissive “substantial risk” standard and a more prohibitive “certainly impending” standard. To resolve this split, the Supreme Court should adopt the more permissive substantial risk standard that only requires plaintiffs to show that there exists a substantial risk of future harm stemming from an actual data breach. When establishing constitutional standing, the Supreme Court should only require that plaintiffs establish the occurrence of an actual data breach that resulted in the theft of sensitive information.
COMMENT: INJURY-IN-FACT: SOLVING THE FEDERAL CIRCUIT COURT SPLIT REGARDING CONSTITUTIONAL STANDING IN DATA THEFT LITIGATION, 52 Golden Gate U. L. Rev.