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



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From: "Jim Harper - Privacilla.org" <jim.harper@privacilla.org>
To: <declan@well.com>
Cc: <souvarine@earthlink.net>
Subject: RE: New Hampshire Supreme Court rules in Amy Boyer privacy case
Date: Tue, 18 Feb 2003 17:18:45 -0500
In-Reply-To: <5.1.1.6.0.20030218143330.02434210@mail.well.com>

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 brokerís . .
. 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 personís social
security number from a credit reporting agency as a part of a credit header
without the personís 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 personís 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 personís 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. ß 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 ó personal or not ó that's fraud, not invasion of privacy.




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