COLUMNS AND NEWS
Legal Issues: Information Brokers
By Stephanie C. Ardito
Independent business owners have long fought the stigma of being referred
to as "information brokers." For many of us, the term "broker" conjures up
a sickening feeling. In part, I blame the media, which makes no distinction
between "legitimate" intermediaries (including private investigators) and those
companies that employ questionable tactics to buy and sell information.
Two years after its founding in 1989, the Association of Independent Information
Professionals (AIIP) developed a Code of Ethical Business Practice. To become
a member of AIIP, an individual must agree, in writing, to accept this code.
In part, it states that members must "uphold the profession's reputation for
honesty, competence, and confidentiality" and "accept only those projects which
are legal and are not detrimental to our profession." Failure to live up to
AIIP's responsibilities is cause for expulsion.
To be honest, I haven't thought much about the term "broker" in recent years.
Irarely hear the word in reference to AIIP members, which makes me believe
that the organization has done a good job in eliminating the stigma that's
attached to it. However, the Supreme Court of New Hampshire's recent ruling
on a cyberstalking and identity-theft case has caused me to reflect on this
issue once again.
Helen Remburg v. Docusearch
In late 1999, Amy Boyer was leaving work when she was shot to death by former
classmate Liam Youens, who then killed himself. In their investigation, police
learned that Youens maintained a Web site that detailed his obsession with
Boyer. On the site, Youens mentioned that Docusearch, a Florida "information
broker," was his source for locating her.
According to the court's papers, after paying small fees to Docusearch, Youens
requested Boyer's birth date, Social Security number, and employment information.
The work address was acquired through a Docusearch subcontractor, Michele Gambino,
who allegedly lied about who she was and the purpose of her phone call.
With this revelation, Boyer's mother (Helen Remburg) and stepfather sued
Docusearch. Before the case could go to a jury trial, the Supreme Court of
New Hampshire was asked to rule on five questions of state law. Although Docusearch
claimed it didn't know the information it provided to Youens would result in
Boyer's death, the court had a different opinion about the company's liability.
On Feb. 18, the court sided with Boyer's parents on three of the five questions.
First, it acknowledged that "public concern about stalking has compelled all
50 states to pass some form of legislation criminalizing stalking." Because
of "the threats posed by stalking and identity theft," Docusearch and Gambino
had "a duty to exercise reasonable care in disclosing" Boyer's personal information
to Youens. "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."
Second, an invasion of Boyer's privacy took place when Docusearch obtained
her Social Security number without permission. According to the court, "[W]hile
an SSN must be disclosed in certain circumstances, a person may reasonably
expect that the number will remain private."
Third, investigators who procure information by pretexting, and then sell
it, can be sued under New Hampshire's consumer-protection act. "Pretext phone
calling has been described as the use of deception and trickery to obtain a
person's private information for resale to others....An investigator who obtains
a person's work address by means of pretextual phone calling, and then sells
the information, may be liable for damages ... to the person deceived."
The complete text of the court's ruling is available at http://www.courts.state.nh.us/supreme/opinions/2003/remsb017.htm.
For additional information on the Boyer case, see the Electronic Privacy Information
Center's site (EPIC; http://www.epic.org/privacy/boyer)
and EPIC's amicus brief (http://www.epic.org/privacy/boyer/brief.html).
It's not unusual to get research requests that make us uncomfortable.At least
two or three times a year, a client asks me to find a birth, divorce, or death
notice, or an article about a Delaware-registered corporation in the local
newspaper. Although these announcements and articles are public records, I
debate whether I should ask why the information is needed. If a deadbeat dad
is being tracked or a company is being sued, is it my responsibility to question
Competitive intelligence is another prickly subject. On occasion, clients
ask me to obtain an educational brochure from a competing pharmaceutical company.
Always, my dilemma is whether or not to use pretext calling to get it. Do I
call from my home phone as a patient who has the disease in question, obtain
the brochure, and pass it on to my client? Do I call from my company phone,
request the brochure, and hope that no one from the competitor asks why I need
the material? If I take this second approach, how do I respond when the competitor
asks about my company and what is going to be done with the brochure? Regardless
of the technique used, if the competitor sends me the brochure, have I legally
received the material? Can I pass it on without being sued? When am I in violation
of AIIP's Code of Ethical Business Practice?
I have mixed feelings about the New Hampshire ruling. On the one hand, I
can cite this case to clients when I'm confronted with a research project that
raises an ethical dilemma for me. The ruling may compel many of us to step
back and question our liability for screening users and investigating their
conduct. On the other hand (and this may not be so far-fetched), I foresee
the enactment of a national lawextended to "legitimate" literature searchesin
which information professionals are held accountable for their users'behavior.
In the reference interview, it's common practice to ask clients why they
need the information. But we question them in order to provide targeted search
results, not to challenge their motivations or make judgments about their research.
We must monitor the upcoming jury trial in the Boyer case. I'm conflicted because
I'd personally like to see Boyer's parents win. But if they do, the ramifications
for our industry will be frightening.
Stephanie C. Ardito is the principal of Ardito Information & Research,
Inc. and co-author of the Legal Issues column. Her e-mail address is email@example.com.