SOCIAL SECURITY NUMBERS DON'T ADD UP TO 'PRIVATE' DATA NEEDING PROTECTION

September 1, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Prying into the "interesting history" of the tort of intrusion-on-seclusion in Illinois -- in a case where personal information about cell phone customers (including their Social Security numbers) was sent to a third party for use in a safety study, without permission from the customers -- the Illinois Appellate Court concluded this personal data was not " 'private' as that word is used in defining the tort of intrusion upon one's seclusion."

A trade association hired Epidemiology Resources Inc. to conduct two studies on whether there is a link between rates of cell phone use and mortality. Southwestern Bell Mobile Systems and Comcast Cellular Communications provided "customer databases" to ERI for its research.

According to the court in Busse v. Motorola Inc., 2004 WL 1393612 (1st Dist., June 22), "The customer data supplied to ERI by Bell and Comcast included customers' names, street addresses, cities, states, ZIP codes, dates of birth, Social Security numbers, wireless phone numbers, account numbers, start-of-service dates and the electronic serial numbers of the customers' phones."

Several customers filed a class action against various companies, alleging that this conduct, among other things, tortiously intruded on their seclusion under Illinois common law.

Granting a motion for summary judgment, the Cook County Circuit Court ruled against the plaintiffs. Here are some highlights of Justice Robert Cahill's opinion affirming the Circuit Court (with various omissions not noted in the quoted text):

"Illinois courts have long recognized a right of privacy. There are four ways to state a cause of action for invasion of privacy: (1) intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; (3) public disclosure of private facts; and (4) publicity placing another in a false light.

"The 'intrusion' tort has an interesting history in Illinois. To the extent the tort has been recognized, Illinois courts have followed the Restatement (Second) of Torts: 'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.' Restatement (Second) of Torts 652B, at 378 (1977).

"The elements of the cause of action typically are stated as: (1) the defendant committed an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering.

"An analysis of the four elements here leads us to the conclusion that without the Restatement's third element, a private matter or private facts, there can be no cause of action.

"The third element of the tort appears to be the predicate for the other three. Private facts must be alleged. Without private facts, the other three elements of the tort need not be reached. Because the analysis begins with the predicate, private facts, it also ends there if no private facts are involved.

"Here, none of the 'personal' information furnished by the customers, standing alone -- names, telephone numbers, addresses or Social Security numbers -- have been held to be private facts.
"Private facts were at issue and clearly alleged in Johnson [v. Kmart Corp., 311 Ill.App.3d 573, 578-79]. There, defendant Kmart hired private investigators to pose as employees at Kmart's warehouse to monitor suspected acts of theft, vandalism and drug use by employees. The investigators gathered and reported personal information about employees, including family problems, romantic interests, sex lives, health problems, future work plans and criticism of Kmart. The employees filed a complaint for intrusion upon seclusion.

"The trial court granted Kmart's motion for summary judgment, but the Appellate Court reversed, finding a genuine issue of material fact as to whether a reasonable person would have found Kmart's actions in using private facts to be offensive or objectionable.
"Matters of public record -- name, address, date of birth and fact of marriage -- have been held not to be private facts. Geisberger v. Willuhn, 72 Ill.App.3d 435, 439 (1979). Neither plaintiffs nor defendants cite an Illinois case or statute recognizing a Social Security number as private information in the sense 'private' is used in the reported cases. We have not found an Illinois case where the information at issue in this case has been held to be within the scope of private facts as that term is used in the Restatement. Nor does the information in this case rise to the level of intimate personal facts held to be actionable in Johnson.

"Plaintiffs rely on decisions from jurisdictions where the private nature of the Social Security number has been recognized. See, for example, Bodah v. Lakeville Motor Express Inc., 649 N.W.2d 859, 862-63 (Minn. App. 2002), reversed on other grounds, 663 N.W.2d 550 (Minn. 2003) (Social Security numbers are broadly recognized as confidential and private, but 'are not on their face revealing, compromising or embarrassing').

"Defendants point to federal cases where Social Security numbers were deemed not to be private or confidential. See Phillips v. Grendahl, 312 F.3d 357, 373 (8th Cir. 2002) (discovery of a person's Social Security number does not fit the profile of intrusion upon seclusion); Andrews v. TRW Inc., 225 F.3d 1063, 1067 (9th Cir. 2000), reversed on other grounds, 534 U.S. 19 ('[w]e take judicial notice that in many ways persons are required to make their Social Security numbers available so that they are no longer private or confidential but open to scrutiny and copying').

"Here, plaintiffs failed to establish the information obtained by ERI was private. In the absence of an Illinois law defining Social Security numbers as private information, we cannot say that defendants' use of this number fulfills the privacy element necessary to plead intrusion upon seclusion. Nor are the individual pieces of information -- names, address, particulars of cell phone use -- facially revealing, compromising or embarrassing.

"The judgment of the Circuit Court is affirmed."

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