The Honorable Robert H. Alsdorf IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING CITY OF KIRKLAND, et al., Plaintiffs, vs. WILLIAM SHEEHAN et al., Defendants. Case No. 01-2-09513-7 SEA REPLY IN SUPPORT OF DEFENDANT SHEEHAN'S MOTION FOR RECONSIDERATION The Injunction Should Be Vacated Because the City has Failed to Establish that the SSNs Were In Fact Private When Publicized by Defendants. This Court ordered plaintiffs to respond to defendant Sheehan's Motion for Reconsideration, noting that defendant has raised serious issues that must be addressed. Curiously, plaintiff City of Kirkland responds by parroting the same erroneous characterization of the defendant's primary argument that has marred its previous pleadings. The City once again attempts to shift the burden of proof from one that it bears - establishing that the so-called "Private Information" is in fact private - to the shoulders of the defendants by claiming that defendants must adduce evidence of "waiver" and "consent," and have failed to do so. Plaintiffs argue that "Defendants have never cited a single case supporting the proposition that plaintiffs must prove they have never made their SSNs public in order to assert rights of privacy." City's Opposition to Reconsideration, p. 4, ll. 11. This argument reveals a failure to appreciate the mechanism of proof. The elements of the tort of privacy (as previously cited by Sheehan) include (i) that defendants publicized private facts about the plaintiffs, (ii) that the facts publicized would be highly offensive to a reasonable person, and (iii) that the facts are not of legitimate concern to the public. Reid v. Pierce County, 136 Wn.2d 195, 205, 961 P.2d 333 (1998) (emphasis added). The first element of the tort requires the plaintiff to adduce evidence that would convince a reasonable juror that private facts were publicized or the entire claim fails. Only if the plaintiff establishes that the facts were indeed private must the defendant exonerate himself through proof of an affirmative defense such as waiver or consent. If however, the information is already public through no fault or action of the defendants, the claim must fail and the defendant need not establish an affirmative (or any other) defense. LaMon v. City of Westport, 44 Wn. App. 664, 669, 723 P.2d 470 (1986) (also previously cited by defendant Sheehan); see also citations at footnote 1 to Defendant's Response to City's Motion. By miscasting the burden of proof, the City conveniently avoids a far more difficult task: squarely addressing defendant Sheehan's fundamental argument that the plaintiffs have not shown that the SSNs constituted "private facts" at the time defendants publicized them. The City only states, in a conclusory fashion, that "plaintiffs proved that they did not consent to a disclosure of the SSNs." City's Opposition to Reconsideration, p. 1, l. 19. The Court is urged to review this "proof." Of the approximately 202 City employees for whom the City requests that this Court issue an injunction, the City provides declarations of only two, Deborah Drain and Phil Goguen. Ms. Drain states "I am very careful about not disclosing my SSN except when absolutely necessary." Drain Declaration, p. 2, ll. 10 -11. Mr. Goguen attests that "We are very careful in not disclosing our SSN; for example, I do not disclose it on the Internet, and my disclosure is limited to necessary employment or credit applications." Goguen Declaration, p. 2, ll. 1 - 3. The other piece of evidence is the broad statement by Harold William Hanson, Executive Director of the Washington Council of Police and Sheriffs, asserting that "police officers and other law enforcement officials zealously guard their home phone numbers, home addresses and other personal information." Hanson Declaration, p. 2, ll. 12 - 13. Was this evidence in fact sufficient for this Court to hold that plaintiffs had a clear and equitable legal right to the injunction based on the probable validity of their claim of invasion of privacy? The answer is no, for at least five reasons: First, Drain's and Goguen's statements are flatly contradicted by the fact that the defendants legally obtained their social security numbers. Whether or not Ms. Drain or Mr. Goguen (or any other person) intended that this information be made available to the public, the unrebutted fact is that it is available to the public. The potential harm this availability portends is a matter of fair debate, but the tort of invasion of privacy must be premised upon the plaintiff's proof that the matter was in fact private at the time it was publicized by the defendant. See, Restatement of Torts Second, §652D, comment b. Mr. Goguen's and Ms. Drain's naïve belief that their financial institutions, employers, landlords, etc., would not disseminate their SSNs does not establish the actual private nature of those identifying numbers that are almost as commonly used in our society as names. Second, the declarations of Mr. Goguen, Ms. Drain and Mr. Hanson do not relieve the City of its obligation to establish the actual privacy of each of the hundreds of pieces of truthful information that it seeks to suppress. Mr. Hanson's opinion is clearly inadmissible because it is based upon the hearsay statements of only a "majority of officers with whom [Mr. Hanson] is familiar." Mr. Hanson's declaration is not based on personal knowledge of the facts. He does not allege that he has actually investigated the habits of the other 200 City employees, and indeed does not speak for the non-law enforcement personnel. This testimony does not and cannot meet the requirements of ER 703. Mr. Hanson has no personal knowledge of what persons, organizations, companies, or agencies to which the plaintiffs may have given their SSNs, and he has no expert knowledge as to whether those entities have further disseminated those SSNs such that they are no longer actually private. Mr. Hanson's conclusory opinion that the SSNs are actually private is utterly without evidentiary foundation. His assertion that police officers "zealously guard their . . . personal information" is controverted by the reality that defendants in fact easily and legally obtained the contested information. In short, the declarations of these three individuals cannot justify the broad injunction of all City employee SSNs imposed by the Court, particularly in the face of evidence that at least some of those SSNs are available in court records and therefore their republication cannot, as a matter of law, be an invasion of privacy. LeMon, 44 Wn. App at 669, Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 491(1975). Declaration of William Sheehan in Support of Sheehan's Response to Motion for Injunction, p. 3, ll. 4 - 7. At best, the injunction must be overbroad under Madsen. Madsen v. Women's Health Center, 512 U.S. 753, 764 (1994). The City also declines to address to this fatal problem. Third, PAWS v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1995), heavily relied upon by plaintiff in lieu of actual evidence, is not a source of substantive proof that the social security numbers of the persons involved in this case are private. The statement in PAWS that SSNs constitute private information is dicta made without analysis or citation to evidence. Furthermore, as noted by this Court in its Memorandum Ruling, PAWS is a public disclosure act case that addresses only the type of information that may be released pursuant to the public disclosure act. Memorandum Ruling, p. 5, ll. 1 -10. The fact that information may protected from disclosure by the government does not prove that the same information is not already public. Fourth, plaintiffs fail to respond to defendant's evidence that SSNs are matters of legitimate concern to the public. It is unrebutted (indeed unrebuttable) that SSNs are used for a wide variety of legitimate purposes, including background checks on witnesses, confirming the identity of similarly named persons, checking credit, collecting on judgments and serving process. Belec Declaration, p. 4, ll. 15 - 20. Indeed, it is the very utility and legitimacy of this information that causes the plaintiffs to be so adamant that it must be removed. Without these applications the SSNs would be merely a string of meaningless numbers. Fifth, plaintiffs cannot show irreparable harm. Their own expert, Beth Givens, establishes that SSNs are available from online information brokers. Givens Declaration, p. 4, ll. 2 - 4. How, therefore, can the City establish irreparable harm where the information it asks this Court to suppress is available elsewhere? As noted in Bartnicki, the justification of a "burden on expression must be 'far stronger than mere speculation about serious harms.'" Bartnicki v. Vopper, 532 U.S. ___, Slip. Op. 16-17 (2001) (citing U.S. v. Treasury Employees, 513 U.S. 454, 475 (1995)). Here, not only is the injunction based upon speculation of harm rather than proof, it is based upon a harm that could befall the plaintiff's employees notwithstanding the suppression of the defendants' speech. Finally, Plaintiff asserts that the fact that many of the social security numbers are available for a fee, rather than for free, makes an essential difference in the analysis of what is public and what is not. The fact of payment, however, merely establishes that the other sources of this information are making a profit, while Sheehan is legally republishing information for which (in some cases) he paid. The City (and this Court in its ruling) asserts that accessibility of the information establishes the invasion. There is no case law in support of this proposition where-as in this case-the information is widely commercially available for a nominal fee. This Court should reverse the injunction unless and until the plaintiffs offer evidence that Sheehan has publicized private facts, that the facts are not of legitimate concern to the public, and that there is empirical evidence of probable irreparable harm. The Injunction Should Be Vacated Because It Characterizes as "Private" Information That Is Routinely Collected and Disseminated by the Government Itself. The City also mischaracterizes defendant Sheehan's argument as it relates to Adams v. Office of the U.S. Trustee, 214 B.R. 212 (9th Cir. BAP 1997). Sheehan cites Adams simply to contrast this Court's conclusion that SSNs are "private" and can be suppressed, with the fact that the federal government is legally able to engage in the same behavior as the defendants. The bankruptcy courts have the right to require persons to disclose SSNs and those Courts then publish those SSNs on the Internet through the Pacer system. Id., Declaration of William Sheehan in Support of Sheehan's Response to Motion for Injunction, p. 3, ll. 4 - 6. State governments also broadcast SSNs (also for free) through court records, the Department of Motor Vehicles, and tax assessors' offices. Declaration of William Sheehan in Support of Sheehan's Response to Motion for Injunction, p. 3, ll. 8-15. The fact that the government provides SSNs to the public also casts serious doubt on the "offensiveness" element of the tort. SSNs commonly are involved in commercial and public transactions. Plaintiff's absurd analogy to pictures of sodomy underscores the impossibility of its position. City's Opposition, p. 6. Photographs of sexual acts are not routinely demanded in commercial transactions. Most people would be offended if a bank were to demand such photographs in order to establish credit. But virtually every person willingly reveals their SSN many times each year to complete strangers. That is the custom of our time and place, and puts to lie Plaintiff's claim that those 9-digit sequences are private material, offensive to reveal. Bartnicki Further Establishes Strict Limits on the Tort of Invasion of Privacy. Bartnicki's primary holding is in fact very helpful to the defendants. It holds that there is no liability for invasion of privacy where a defendant obtained the information lawfully and where the information is "a matter of public concern." Sheehan and Rosenstein obtained the information legally. Sheehan has presented evidence to the Court of the legitimate interest of public in the SSNs. The City has neither rebutted this evidence nor cited to any case that actually addresses evidence-such as that produced by defendant Sheehan-that SSNs have lawful and legitimate purposes and are indeed used for such purposes routinely. Bartnicki is just the latest Supreme Court ruling in a trend towards a rule that there can be no tort liability for publicity given to true statements of fact. See Special Note to Restatement of Torts, Second, §652D (noting that liability for publicity given to true statements of fact may not be consistent with the free-speech and free-press provisions of the the First Amendment); Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (holding that a radio station could not constitutionally be held liable for broadcasting the name of a rape victim, because the victim's name was contained in public records); The Florida Star v. B.J.F, 491 U.S. 524, 109 S. Ct. 2603, 2609 (1989) (vacating judgment for rape victim whose name was reported in the newspaper). By enjoining speech that is legally obtained and truthful, and holding that punishment may be available in the form of tort damages, this Court is placing putative privacy interests above free speech rights. The Supreme Court has never taken such a step. The City's contention that Bartnicki's reasoning is strictly limited to the facts of that case alone are not well taken. The Supreme Court itself has already vacated the judgment against Congressman McDermott and remanded for consideration in light of Bartnicki. 532 U.S. ____, Order 99-1709 (attached to this brief). No State Interest of the Highest Order Has Been Identified. This Court failed to identify a "state interest of the highest order" in its Order because the Plaintiffs failed to produce evidence of one. The risk of identity theft is highly speculative and the Plaintiffs have not identified even a single instance of this actually happening to its employees. An injunction based on such a remote risk of harm is unsupportable in light of Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2001), which holds that a web-site that implicitly condoned physical violence against physicians could not be suppressed. Sheehan's Motivations Are Irrelevant. There is no mens rea element to a First Amendment defense. The City's attacks on Mr. Sheehan's alleged motivations are totally irrelevant. City's Opposition at pp. 2 - 3. Whether the Court admires or loathes William Sheehan and Aaron Rosenstein is of no consequence. The City's characterizations are a desperate gambit to muddy the issues, as established by its false statement that "Mr. Sheehan conceded that disclosure of the SSNs and other Private information was not of legitimate public concern." City's Opposition at p. 2, l. 14. He conceded no such thing, as can readily be determined by the fact that the City does not produce a record of the alleged concession. CONCLUSION The trial court should reconsider its earlier ruling because it is erroneous for any one of the following reasons: 1) The Plaintiffs have failed to establish the private fact element of the tort; 2) The injunction is overbroad; There is insufficient evidence of irreparable harm because (a) the claimed harm is speculative and (b) the information is easily available to potential criminals and tort-feasors from other sources; The information was legally obtained, is truthful and is of public concern; and No "state interest of the highest order" is served by the injunction. RESPECTFULLY SUBMITTED this ____ day of June 2001, By _______________________________ Elena Luisa Garella WSBA #23577 Attorney for Defendants Sheehan