Imagine that a hacker is working for a university official secretly spying on faculty members-say, to find out who has been leaking information to the press about internal disciplinary matters.2 The injuries to a given victim of the hacking might follow a classic learning curve: The first few intrusions into her e-mail account reveal a storehouse of personal secrets, but further break-ins yield less and less new information. One might say there is diminishing marginal harm.3
There is no such leveling off, however, in the compensation that would be awarded to that victim. The electronic privacy law that bars such hacking provides for statutory damages of a given amount per violation, 4 and each unauthorized intrusion is considered a separate count.5 Thus every break-in increases the award by the same amount. The statutory damages add up linearly, even when the actual harms do not.
Bert I. Huang,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/628