Previous Politech message: http://www.politechbot.com/p-04472.html --- From: "Jim Harper - Privacilla.org" <jim.harperat_private> To: <declanat_private> Cc: <souvarineat_private> Subject: RE: New Hampshire Supreme Court rules in Amy Boyer privacy case Date: Tue, 18 Feb 2003 17:18:45 -0500 In-Reply-To: <5.1.1.6.0.20030218143330.02434210at_private> Declan: The Amy Boyer case has long been called a "privacy" case, but it's really about stalking and murder. Amy Boyer's killer obsessed about her for years. He knew where she lived and would park outside her house for hours on end. He acquired her SSN and work address only in the last days before he shot her and then committed suicide. In the aftermath, Boyer's family sought to pin blame for the murder a lot of places, including the ISP that hosted a Web site where Liam Youens had discussed his plans for murder. They finally settled on private investigators and search services. It's not easy to stop a deranged lunatic, which Liam Youens clearly was. I question whether imposing liability on Web hosting companies, private investigators, or anyone else would prevent future tragedies like this. But the New Hampshire Trial Lawyers weighed in. You can bet they favored liability for all. Only the tiniest nuggets of privacy remain in the case, and unfortunately the court appears to be wedging revelation of the Social Security Number into the "intrusion onto seclusion" branch of the privacy torts. Not a good fit. Privacilla issued a report on the Amy Boyer case in December, 2000: http://www.privacilla.org/releases/AmyBoyer.html Here is a discussion of the privacy torts from July of last year. The privacy torts provide baseline privacy protections nationwide: http://www.privacilla.org/releases/Torts_Report.html I've briefly articulated the issues decided by the court below. Though this case ain't really about privacy, Chris is right that state law is the best source for privacy protection. Jim Harper Editor Privacilla.org 1. Under the common law of New Hampshire and in light of the undisputed facts presented by this case, does a private investigator or information broker who sells information to a client pertaining to a third party have a cognizable legal duty to that third party with respect to the sale of the information? Answer: Yes As the court says, "[I]f a private investigator or information broker’s . . . disclosure of information to a client creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed, the investigator owes a duty to exercise reasonable care not to subject the third person to an unreasonable risk of harm." The criminal misconduct here is stalking and identity fraud, not invasion of privacy. 2. If a private investigator or information broker obtains a person’s social security number from a credit reporting agency as a part of a credit header without the person’s knowledge or permission and sells the social security number to a client, does the individual whose social security number was sold have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information? Answer: Yes Now the trial court must decide whether the disclosure was offensive enough. It sounds like a better case for the "disclosure of private facts" branch of the privacy torts. If it's not a good fit, the common law system has correction mechanisms that federal legislation does not. 3. When a private investigator or information broker obtains a person’s work address by means of a pretextual telephone call and sells the work address to a client, does the individual whose work address was deceitfully obtained have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information? Answer: No The court found that a work address is not private, so there can be no invasion of privacy if a work address is revealed. It probably should have sent the issue to the trial court to find that Amy Boyer's work address in particular was not private, because it's possible to keep a work address private (even if that's exceedingly rare). 4. If a private investigator or information broker obtains a social security number from a credit reporting agency as a part of a credit header, or a work address by means of a pretextual telephone call, and then sells the information, does the individual whose social security number or work address was sold have a cause of action for commercial appropriation against the private investigator or information broker for damages caused by the sale of the information? Answer: No The appropriation tort is on the furthest outskirts of the privacy torts. To have a cause of action, the defendant must have tried to capitalize on some attribute of the individual. It's not an appropriation of one's likeness or character just to transmit information about him or her, according to New Hampshire. 5. If a private investigator or information broker obtains a person’s work address by means of a pretextual telephone call, and then sells the information, is the private investigator or information broker liable under N.H. Rev. Stat. Ann. § 358-A to the person it deceived for damages caused by the sale of the information? Answer: Yes Pretext calling violates New Hampshire's general anti-fraud law. The fraud was perpetrated to get access to personal information, but this doesn't convert the fraud into a privacy violation. If you lie to someone to get information — personal or not — that's fraud, not invasion of privacy. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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