• Legal Liability for Selling Public Information
  • May 7, 2003 | Author: Theodore F. Claypoole
  • Law Firm: Womble Carlyle Sandridge & Rice - Charlotte Office
  • The information age has burst into our lives, allowing nearly every movement and purchase to be documented and analyzed. Many people fear government collecting our personal information, while others are more concerned about advertisers learning our lives and targeting our buying habits. However, recent case law demonstrates the dangers of private citizens accumulating our public information, and also proves that the law may be used to in new ways to protect our privacy.

    In an opinion issued in February, the New Hampshire Supreme Court responding to a request by a Federal District Court for interpretation of state law, found that a private investigator or information broker may be liable to a person who is harmed by revelation of that person's private information, even if the investigator or information broker had no contact with the injured person. The Court ruled that an investigator has a legal duty to protect third parties from misuse of private information, and that a criminal act may be foreseeable by the investigator's client against a third party whose information was researched and revealed.

    The case of Helen Remsburg, Administratrix of the Estate of Amy Lynn Boyer v. Docusearch, Inc. involved the stalking of New Hampshire resident Amy Lynn Boyer by another New Hampshire resident named Liam Youens. Youens contacted Docusearch, a Florida investigative service, and paid for information about Boyer. Over a period of a little more than a month, Youens purchased Boyer's Social Security Number, home address and work address from Docusearch. The work address had been obtained by a fraudulent "pretext phone call" by a Docusearch contractor.

    According to the Court in Remsburg, on October 15, 1999, "Youens drove to Boyer's workplace and fatally shot her as she left work. Youens then shot and killed himself." Youens had maintained a website containing references to stalking and killing Boyer. Amy Lynn Boyer's estate sued Docusearch on several legal theories.

    Five specific questions were certified to the New Hampshire Supreme Court in the Remsburg case. For three of the questions, the Court found potential liability for an investigator or information broker under state law. The Court's findings and reasoning are likely to be influential in future treatment of personal information.

    The Court first found that an information broker owes a legal duty with respect to the sale of personal information to the person whose information is revealed. The Court noted that it had previously held that "[p]arties owe a duty to those third parties forseeably endangered by their conduct with respect to those risks whose likelihood and magnitude make the conduct unreasonably dangerous." After analyzing the risks involved in the present action found, "The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person's personal information to a client. . . . This is especially true when, as in this case, the investigator does not know the client or the client's purpose in seeking the information."

    The Court also held that disclosure of a person's social security number (although not employment location) may be an actionable "intrusion upon seclusion" that "has gone beyond he limits of decency", and that an investigator may incur state law liability for unfair and deceptive trade practices where the investigator "obtains a person's work address by means of pretextual phone calling, and then sells the information."

    The findings in this case may force investigators to take more care in providing personal information and in using deceit to obtain the information. And where they take no such care, the person whose information is revealed may sue.