New Hampshire Court Rules on Tort Liability of Information Brokers

February 18, 2003. The Supreme Court of New Hampshire issued its opinion in Remsburg v. Docusearch regarding whether private investigators and information brokers are liable in tort for privacy invasions of third parties about whom they are collecting and disseminating information.

This case arises out of the stalking and murder of Amy Boyer by Liam Youens, who located her with information sold to him by Docusearch, a web based information broker. This information included her social security number and work address -- which is where Youens killed her. Amy Boyer's parents are Tim and Helen Remsburg. Helen Remsburg, as administratrix of the estate of Amy Boyer, filed a complaint in U.S. District Court (DNH) against Docusearch Inc. The District Court certified five questions of state law to the New Hampshire court. In the present opinion, the New Hampshire Court answers those questions.

The New Hampshire court held, as a matter of New Hampshire law, that a private investigator or information broker who sells information to a client pertaining to a third party has a cognizable legal duty to that third party with respect to the sale of the information.

It stated that "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. And we so hold. 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 if a private investigator or information broker obtains a person's social security number from a credit reporting agency as a part of a credit header without the person's knowledge or permission and sells the social security number to a client, then the individual whose social security number was sold has 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.

The court concluded that "while a SSN must be disclosed in certain circumstances, a person may reasonably expect that the number will remain private".

However, the court held that when a private investigator or information broker obtains a person's work address by means of a pretextual telephone call and sells the work address to a client, the individual whose work address was deceitfully obtained does not 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.

The court reasoned that "where a person's work address is readily observable by members of the public, the address cannot be private and no intrusion upon seclusion action can be maintained".

Also, the court held that 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, the individual whose social security number or work address was sold does not have a cause of action for commercial appropriation against the private investigator or information broker for damages caused by the sale of the information.

The court also held that if a private investigator or information broker obtains a person's work address by means of a pretextual telephone call, and then sells the information, then the private investigator or information broker is liable under N.H. Rev. Stat. Ann. § 358-A to the person it deceived for damages caused by the sale of the information.