Can You Sue Over Loss of Personal Information? 479
GreenCrackBaby asks: "My wife was at a mall about a year ago when she ran across one of those groups who were trying to sign people up for a Visa credit card. Since she didn't yet have a credit card, she decided she'd fill out the form. She had everything filled out and was ready to sign it when she noticed the draconian fine print that essentially promised that they would sell her personal data to anyone they could, so instead of signing the form she said 'no thanks' and tossed it in the garbage. That was a mistake she has been made to regret. Almost immediately SPAM to her university email address went from 0 to 20 a day, and has been slowly increasing since. Soon we started to receive a large number of telemarketing calls to our home (where before we had received almost none). Junk mail addressed to her went through the roof. It wasn't until the Visa card arrived addressed to her that we knew what had happened." It appears that someone fished this woman's application out of the garbage and submitted this anyways, without a signature. How is something like this even close to being legal?
"What has become clear is that someone selling those Visas fished her application out from the garbage and submitted it. We've managed to track down a copy of the form she had filled out, and in the signature area is a big 'N/A'. So now her personal information is being sold to every telemarketer, spammer, and junk mail shop in North America. What can she do? We'd like to sue the company who fished the application from the garbage and make a lesson out of them, but what is there to sue over? Is the loss of personal information even considered a tort?"
you could always (Score:5, Informative)
Now watch that get amrked redundant
It Could Have been worse. (Score:5, Informative)
That person was most likely the person who was trying to get her to sign up in the first place. They recieve a commission for each application, sometimes up to 50$ a piece. And since the application was submitted through them without an authorized signature, it's called Fraud. That's criminal. People have filed civil suits for less though. Give it a try.
The most important lesson here is that she probably had her social security number on that form, and should have taken it home with her instead of leaving her personal information in a public place. Someone with whose agenda wasn't limited to making a few extra bucks could have used the info to steal her identity.
See a lawyer. (Score:5, Informative)
However, this does bring to mind some things people should do to protect themselves from information fraud:
- Shred or finely tear any documents with personal information. If it's a mailing, shred the envelope and any advertising with it as well.
- Never purchase from a telemarketer, a TV commercial, or online stores. Telemarketing firms like to share information, and hire some pretty colorful people.
- Put as little information on your check as possible (name only is best, or name and address).
- Only use your credit card for paying bills.
- Get a P.O. box.
- Don't rent cars or purchase cell phones.
This is just a shortlist of information I've been told; basically, one has to be vigilant but also realize that much of this is beyond your control.Re:Your wife made it public (Score:2, Informative)
My policy is to always remove and carry, ATM receipts, credit card slips and anything else with personal information. The stuff gets shredded and burned when I get home.
At the very least... (Score:5, Informative)
I would have to assume that if there is a disclaimer that Visa can sell the information, there would have to be a disclaimer saying they are not liable for the information's use once it is sold. However, if the actual volume is coming in like it is, an easier route would be harrassment class action suits against benefitting parties. Their information was gained illegally, and they are liable for that. So both Visa and the Spam companies could get burned bad, if this is pressed. The person who took the application could be held responsible as well, since they accepted and processed an application without proper verification of identity.
The fact that the person got a credit card is inconsequential, or that no one else took the information is just lucky. It would have been pretty easy to just copy it to a new application and change the address.
Re:Use the card (Score:5, Informative)
you have to ACTIVATE it. Usually by calling a phone number and talking to a person (Platinum cards) I dont know about the lesser cards... some might simply use a automated system.
activating the card is your acceptance of the terms.
and dont think for a minute that a credit company can't easily outspend you and your entire family in court just for the fun of it.
Remember these companies use the most innacurate and insecure database in the world to make decisions on you... your credit report.
Don't do something stupid like use the card if you dont want to pay it back.
Yes, I'm a lawyer . . . (Score:5, Informative)
Some of the aspects of this story sound legally questionable. For example, a credit card company's acceptance of an unsigned credit card application, in general. But also, since there was no signature, your wife (although extremely careless and naive for throwing her personal information in a public trash can) never consented to the "fine print" which was the ostensible hook for the company to distribute her info to spammers, telemarketers, other vermin. True, if someone fished her info out of the trash and used it for spamming, she might not have much of a remedy - although some states have put anti-spamming laws into effect, they typically only give a remedy against the spammer, and they make themselves hard to find and identify - who do you sue? But it sounds, from your account, like you can prove the unsigned application was actually submitted to VISA, and may be able to prove that VISA sold her info to the pond scum with knowledge that she had not consented. If that were so, you might have some kind of remedy against VISA or the bank that issued the VISA. If you are in a jurisdiction like California which has a privacy right incorporated in its state constitution, your position might be even stronger.
I would recommend consulting a lawyer who is licensed to practice in your jurisdiction. If you don't know a lawyer, try contacting law schools in your area or your State Bar Association to ask if there are any referral services they would recommend to look at a case of potential privacy violation. This is better than picking up the phone book at random.
Re:Your wife made it public (Score:2, Informative)
Simple forgery / no contract (Score:2, Informative)
The forgery might well require the testimony of a questioned documents examiner, but the forger is liable for damages.
The legal matter is fairly easy to understand: the woman decided not to accept or agree to the terms of the contract and no contract was made. Thereafther the actor or actors who made use of the incomplete contract started violating the law.
We don't know where this happened, but California has a state constitution that includes a right to privacy. If the jurisdiction where this happened has a similar statutory right (there are unfair trade practice statutes as well as identity theft statutes) there may me other forms of relief available.
Re:Your wife made it public (Score:2, Informative)
Whether that has any effect on the company's liability for providing your personal information to others, however, is anybody's guess. Generally, you have to agree before they can do that, and you never agreed. Any privacy lawyers reading this? My area is municipal and real estate law, so I'd love to hear an expert's take on this.
Re:It Could Have been worse. (Score:2, Informative)
I used to work in credit (Score:5, Informative)
The short of the matter is that they have probably pulled a copy of your wifes credit bureau report in order to issue the card. Since she did not sign the application, which they would have had to have forged, she did not give consent to have her credit report pulled.
Reference the FCRA [ftc.gov] (Fair Credit Reporting Act) 15 U.S.C. 1681. In particular reference 604 Permissible purposes of consumer reports [15 U.S.C. 1681b]. They have used the report in a manner not permissable.
The crux of the matter is that you may sue them for violating the FCRA. Reference 616 Civil liability for willful noncompliance [15 U.S.C. 1681n]. Since they forged her signature, they have wilfully broken this law.
You can also nail their ass with this:
PrePaid Legal! (Score:2, Informative)
There is much more to it than that, but I don't want this to be TOO much of a blatant advertisement..
In a situation like this, you could simply call your attorney and they could give you real legal advice and coud even help you out without it costing you anything other than your monthly membership...
p.s. IANAL
Re:Your wife made it public (Score:3, Informative)
It is for this reason that she SHOULD NOT CHARGE anything to the card. Doing so implies acceptance of the card and terms & conditions. (Most of the card agreements even say as much.)
Unfortunately, as many earlier posters have pointed out, there doesn't seem to be much remedy as essentially all of that information is "public information" (especially if you throw the application in the trash right next to the booth without even tearing it up!). The most you'll get is, if you have a really compassionate judge, some sort of minor penalty against the company/booth person for submitting your application without your approval.
As a side note, I believe that the folks that staff those booths are paid by the number of applications they get. So obviously if you start to fill one out and decide against it, you better take it with you and tear it up and throw it out far away from their booth!
Re:Your wife made it public (Score:1, Informative)
Ignore the Parent Comment (Score:5, Informative)
This is patently false, and following this advice could easily land you in jail for fraud. Because you didn't sign the form, you don't owe them anything for sending you the card, but if you use it, you are promising to conform to the cardholder agreement. If you claim after the fact that it's not valid because you never signed the form, you won't be held legally liable for the debt by the credit card company. The catch is that you presented the card to whoever you bought stuff from as a valid account, which it wasn't (and they can prove you did it on purpose because you know the cardholder contract isn't valid), thereby committing fraud for personal financial gain. Go directly to jail, and end up paying the merchant for the stuff directly anyway.
I say again, ignore this advice. It's criminal.
Virg
Paranoia... (Score:2, Informative)
When someone asks for my name or address, I usually decline, when I have a form/receipt/etc that has my name on it I rip it up into small pieces. Garbage cans are public property (police can obtain your DNA from cigarette butts, soda cans, etc that you throw away; yes I watch a lot of court TV)
I look at credit card receipts that the merchant has and if my CC number is listed I blackout parts of it (there is no need for them to have num CC number, they have transaction #).
If I get a call from telemarketer, I say no thanks and just hang up before they say anything else. If someone calls and starts a sales pitch I ask whom are they looking for, if they do not know exact name I just hang up.
All important papers get shredded and thrown out in the same bag as catbox litter.
There are people who prey on others out there, who will sift through your garbage and try to get info about you. Identity theft is very real.
Re:Not good enough... (Score:2, Informative)
As long as you're careful enough to split all the important information between your piles (not that hard to do), this feels safe enough for me.