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  • ivey@noseypi.com
    Feb 28, 2003
    • 0 Attachment
      Something I read in the American Bar Association Journal

      �2003 ABA Journal


      Friday, February 28, 2003









      DEADLY INFORMATION
      Court Says Information Brokers Can Be Held Liable for Foreseeable Harm

      BY MOLLY McDONOUGH

      Amy Lynn Boyer hardly knew Liam Youens. They met in an eighth-grade youth group but didn�t become friends. In 10th grade they shared a class, and he became obsessed with her. After high school, Youens paid more than $200 to an Internet company for information about her, including her Social Security number and work address. In October 1999, Youens waited for 20-year-old Boyer after work. He fatally shot her, and then Youens, 21, committed suicide.

      Boyer�s mother, Helen Remsburg of Nashua, New Hampshire, sued the Florida-based company that sold Boyer�s personal information to her killer. Remsburg won a major victory this month when the state supreme court ruled that information brokers and private investigators who provide information to stalkers and identity thieves can be held liable for their actions.

      "This decision really says there has to be some responsibility in handling personal information," says Chris Hoofnagle, senior counsel at the Washington, D.C.-based Electronic Privacy Information Center, which wrote an amicus brief in the case.

      Remsburg claims Docusearch Inc. violated Boyer�s privacy. She is seeking a jury trial. But Docusearch, which works primarily for commercial clients, including law firms, argues it provided only public information. The company asked U.S. District Judge Paul Barbadoro to dismiss the suit on a proximate cause claim, because Youens already had Boyer�s home address when he contacted Docusearch for more information.

      Barbadoro passed the case to the New Hampshire Supreme Court to clarify state law on five points. On Feb. 18, the court issued an opinion siding with Remsburg on three of the five points. Boyer v. Docusearch Inc., No. 2002-255.

      The court found first that private investigators and information brokers are obligated to those about whom they provide information if there is foreseeable harm, as in cases of stalking and identity theft.

      The court also found there is a reasonable expectation of privacy regarding Social Security numbers, but that work addresses are public.

      The court said it is a fact question, though, whether revealing a Social Security number is "offensive to a person of ordinary sensibilities" so as to support the tort of intrusion upon seclusion.

      The court recognized a cause of action for invasion of privacy by appropriation of a person�s name or likeness, but did not find appropriation in this case. Docusearch obtained Boyer�s Social Security number from a credit-reporting agency without her permission, but only sold it to Youens for the value of the information. Appropriation requires proof of taking advantage of someone�s reputation or prestige, the court said. It occurs most often when a defendant uses a person�s name or likeness to advertise a product or when the defendant impersonates a person for gain.

      Finally, the court found that pretextual calls used to obtain and sell information violate the state�s consumer protection laws. Docusearch had hired an investigator, Michelle Gambino, who called and lied to Boyer to get her work address. Docusearch had argued pretext was a legitimate investigative tool.

      Gambino's New York City attorney Steve Ross says his client is happy the court dismissed two of the counts that could have negatively impacted Gambino: commercial appropriation and intrusion upon seclusion. As for the issue of pretext, Ross says that as a matter of law Miss Gambino could not have foreseen the danger that faced Boyer. "We don't believe under the remaining counts that she is liable in any way," Ross says.

      Bedford lawyer Andrew Schulman, who represents Docusearch and other defendants, declined comment.

      Youens created a Web site to keep meticulous logs of his plans to murder Boyer and possibly her family. He also posted his efforts to locate additional information about Boyer.

      "I found an internet site to do that, and to my surprize everything else under the Sun. Most importantly: her current employment. It�s accually obsene what you can find out about a person on the internet [sic]," Youens writes on his Web site, which Boyer�s family has maintained at www.amyboyer.org as part of a memorial and a call to action to fight similar violence.

      Youens praises Docusearch on the site for pulling through "amazingly. ... It�s like a dream."

      The New Hampshire court found that stalking and identity theft are foreseeable risks that warrant a duty by investigators "to exercise reasonable care in disclosing" information to a client, especially when "the investigator does not know the client or the client�s purpose in seeking the information."

      Private investigators, who filed their own amicus brief in the case, are not as upset by the ruling as some expected. Most of a private investigator�s business wouldn�t fall into actionable categories.

      "The decision didn�t say anything that our professional association doesn�t already hold true and dear," says John M. Healy, president of the New Hampshire League of Investigators. Healy, however, is concerned with how the decision will be seen and used by the public to promulgate more restrictive laws. He points out that if private investigators lose the ability to work effectively, then the legal, insurance and business communities also will suffer.

      "There has to be a balancing act in terms of access to information," says Healy, who adds that 90 percent of his business comes from law firms. "We need privacy, but we have to make sure we don�t throw out the baby with the bathwater."

      Healy also distinguished between regulated investigative work and reselling information. He says legitimate investigators ordinarily wouldn�t disclose a person�s whereabouts to a client. "It�s legal to do it, but [to me] that�s overstepping the bounds of propriety." Healy says the industry standard is to give the found person the choice to contact the client.









      NOSEY

      P. I.
      NOSEY P. I.
      6800 HWY 161 #135
      WALLS, MS.

      OWNERS:
      NIKKI IVEY nikki@...
      JOHN IVEY john@...

      LICENSE # 562-000
      member: American Bar Association
      N.A.I.S
      W.W.P.I
      I.O.A.

      MEMPHIS & N. MISSISSIPPI: (662) 781.3446
      NATIONWIDE: 1.888.NOSEYPI

      WEBSITE: http://www.noseypi.com


      NOSEY

      P. I.
      NOSEY P. I.
      6800 HWY 161 #135
      WALLS, MS.

      OWNERS:
      NIKKI IVEY nikki@...
      JOHN IVEY john@...

      LICENSE # 562-000
      member: American Bar Association
      N.A.I.S
      W.W.P.I
      I.O.A.

      MEMPHIS & N. MISSISSIPPI: (662) 781.3446
      NATIONWIDE: 1.888.NOSEYPI

      WEBSITE: http://www.noseypi.com




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