Keeping Business Out of the Bedroom: Protecting Personal Privacy Interests from the Retail World


David J. Klein


VOL. XV • Winter 1997 • NO. 2 (table of contents)

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15 John Marshall J. of Comp. & Info. Law 391


The federal government as well as private companies maintain personality profile lists containing records of personal information touching on many aspects of an individual's life. Some companies seek to acquire these lists from the federal government or from other businesses in order to increase their profits by targeting those individuals within the lists who appear most likely to buy their products or services. Therefore, personal information that consumers initially disclosed to a business in confidence becomes public knowledge shared among other businesses. As a result, consumers feel that the list creator invaded their privacy. Frustrated consumers attempt to keep such businesses from placing them on personality profile lists.

Congress partially addressed this concern when it enacted the Freedom of Information Act. One section of the Act identifies many exemptions that forbid government agencies from releasing personal information records to the general public. Federal courts have interpreted the Act as prohibiting disclosures of personal information when businesses seek the information for commercial purposes. However, when individuals challenge list creators who sell their personality profile lists to other businesses, state law controls. Among those states that have addressed invasion of privacy claims brought by individuals against companies who sold their personal privacy lists, courts in those states have adopted Restatement (Second) of Torts standards into their common laws. In particular, in 1995, an Illinois court applied the Restatement appropriation branch of privacy invasion to an action between consumers and a business that disclosed private consumer information for profit. The court concluded that the appropriation standard did not protect the consumers' privacy interests, reasoning that the information contained in a personality profile list compiled by a credit card company had no value, and that the company had not denied the consumers of any value that their names possessed.

One solution to this inconsistency between state and federal consumer privacy standards is to broaden the scope of the Restatement privacy standard applied to claims brought in state courts against businesses that release personal information to other businesses. Under the Restatement, the appropriation tort protects individuals from the use of their names or images by others for profit. State courts should recognize the importance of maintaining the privacy of personal information, regardless of the monetary value of the information to a business.

However, if state courts cannot adopt such a broadened standard, since the collecting and selling of personality profile lists amounts to a big business today, state legislatures can fill the personal privacy protection void by enacting legislation which requires all businesses to include opt-out provisions in their consumer contracts. Mandatory opt-out provisions in consumer contracts such as credit card applications would allow individuals to control the destiny of their personal information by notifying list creators as to whether they can release personal data to other businesses. Such legislation would be beneficial to both consumers and businesses, as it would decrease unwanted mail solicitations received by individuals, and, at the same time, allow businesses to streamline their mail advertisement programs.

Consumers currently lack sufficient legal protection to preclude businesses from trading their personal information. Consumers need privacy protection reform, and pursuant to the Constitution, they are entitled to increased control over their personal information. Businesses should be held to the same level of responsibility required of government agencies in keeping personal information confidential.

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