FC: Jim Harper on why Amy Boyer case has nothing to do with "privacy"

From: Declan McCullagh (declanat_private)
Date: Tue Feb 18 2003 - 15:07:13 PST

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    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.
    
    
    
    
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