In what could prove a landmark win for Internet privacy advocates, an Internet information broker is closer to being hit for damages over a cyberstalking murder case from October 1999.
Returning the case to a federal district court, where the merits will finally be argued and decided, New Hampshire's Supreme Court ruled Tuesday that Docusearch.com could be held responsible in the death of Amy Lynn Boyer. Her killer, Liam Youens, found her by way of paying various fees to Docusearch for information that ultimately led to his finding and shooting the former classmate who had been a longtime obsession for him.
"We're very happy with this decision," said deputy counsel Chris Hoofnagle of the Electronic Privacy Information Center, which had filed an amicus brief for Boyer's estate in the case. "We think it's certainly the most important privacy case of the year. To my knowledge, it's the first court to assign liability for negligent sale of personal information, or to acknowledge there's a cause for action about negligent sale. It'll also go far to eliminate pretext calling in New Hampshire, which is an obnoxious practice."
Getting someone's work address by way of a false "pretextual" telephone call, and selling the information, could make an information broker liable for damages if the employee in question is harmed after the information is passed on, the New Hampshire high court held in its Tuesday opinion.
Anyone whose conduct "create(s) a condition which involves an unreasonable risk of harm to another" is wholly responsible to prevent that risk from becoming reality, the opinion continued. "If a private investigator or information broker's...disclosure of information to a client creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed, the investigator owes a duty to exercise reasonable care not to subject the third person to an unreasonable risk of harm.
"Pretexting is the practice of collecting information about a person using false pretenses," the EPIC brief said. "Typically, investigators pretext by calling family members or coworkers of the victim under the pretense of some official purpose. This can include calls made under the pretense that the victim is about to receive a sweepstakes award or insurance payment. The family members or coworkers called are deceived by the pretexter, and provide personal information on the victim."
The 1999 Gramm-Leach-Bliley Act prohibited pretext calls to financial institutions, brokerages, or insurance companies, but it still allowed investigators to call friends, relatives, or others under false pretenses in order to get someone's personal information.
"There is a danger" in pretext calls beyond their falsities, Hoofnagle said. But he also said that individuals "may pretext frequently for purposes that are not nefarious," too.
EPIC's amicus also charged the pretext calling that involved Boyer's personal information violated New Hampshire's Consumer Protection Act, which prohibits "any unfair or deceptive act or practice," including selling private information by way of a request made under a false identity or under false pretenses.
Docusearch.com did not return a query for comment as this story went to cyberpress.
Not everyone agrees that this is a "privacy" case. Privazilla.org has argued since 2000 that the case is almost strictly about stalking and murder, and not privacy issues.
"Crime and privacy have become confused in public debate," the group said in the immediate wake of the murder. "This has distracted policy-makers from addressing real problems directly, and it has caused Americans to distrust the delights promised by the Information Age...The result may be that neither crime nor privacy are properly addressed. Until the issues are sorted out, Americans will needlessly be victimized by crime and disproportionately anguished about their privacy."
Privazilla.org believes the Boyer family looked more to blame others for enabling Youens to do what he all but vowed to do, and that the lawsuit was a result of trial lawyers "weighing in" without thinking about whether slapping Web hosts, information brokers, or private investigators with concurrent liability would really prevent future such cyberstalk murders.
Youens shot and killed Boyer October 15, 1999, then shot and killed himself. Police reportedly found a cache of firearms and ammunition in his bedroom. Youens had even posted a Website dedicated to Boyer, on which he had all but vowed to find and kill his unrequited love. He began hunting Boyer seriously three months before the killing.
That's when he first contacted Docusearch through its Website and asked for Boyer's birth date for a $20 fee, according to court documents. After getting birth dates for several Amy Boyers, Youens asked for better answers through her home address and ordered her Social Security number, for a $45 fee. Docusearch got the number through a credit agency and sent it to Youens, who ordered a search for Boyer's work information in August 1999 for a $109 fee, the documents continue.
A month before Boyer was killed, Docusearch got Youens both her home and her work addresses. Docusearch engaged private investigator Michelle Gambino to get the work address. As the lower courts determined, Gambino got it by way of a "pretext call" to Boyer herself. Gambino herself never had any contact with Youens, nor did she know why he wanted Boyer's work location.
But she got it from Boyer herself, lying about who she was and why she needed the information, which Boyer provided - unwittingly signing her own death sentence.
Youens spent a total of $204 (Docusearch at one point refunded him one $109 payment after they couldn't get one requested piece of information) in getting the knowledge he wanted before killing Boyer.
"Why am I killing her? I don't love her anymore, I wish I did but I don't," Youens wrote on his Boyer Website - a mirrored copy of which is still accessible still accessible through the Website Boyer's parents had posted in her memory, a mirror version of which EPIC still maintains. "I wish I could have killed her in Highschool. I need to kill her so I can transport myself back into high school. I need to stop her from having a life."
