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Wednesday, January 10, 2007

Lambert v. Hartmann

The United States District Court for the Southern District of Ohio recently dismissed identity theft victim Cynthia Lambert's case against Greg Hartman and the Hamilton County Board of County Commissioners. In this case, Lambert was issued a speeding ticket which was published on the Hamilton County Clerk of Court's website. The ticket contained Lambert's personal information including her signature, home address, birth date, driver's license number and social security number.

Using this information, identity thieves purchased $8,000 worth of electronic equipment at a Sam's Club store and opened a credit card account at the Home Depot, who subsequently racked up $12,000 in charges.

Predictably, she brought a class action suit against the county for posting her personal information and the information of those similarly situated. On a 12(b) Motion to Dismiss, the court dismissed with prejudice her constitutional claims under section 1983 and dismissed without prejudice her other claims based on state law, essentially telling Lambert to bring the state law claims in state court.

Turning to Lambert's constitutional claim, the court held that she failed to state a claim under 42 U.S.C. Sec. 1983 because she has no constitutional right to privacy in her social security number. In the Sixth Circuit, the right to privacy is triggered only when the interest at stake concerns those personal rights that can be deemed "fundamental" or "implicit" in the concept of ordered liberty. Not all disclosures of private information will trigger constitutional protection, and in the Sixth Circuit, a two-step process is used to analyze informational right to privacy claims.

(1) The interest at stake must implicate either a fundamental right or one implicit in the concept of ordered liberty; and

(2) The government's interest in disseminating the information must be balanced against the individual's interest in keeping the information private.

In coming to its decision, the court cited two cases where release of personal information triggered constitutional protection. One case dealt with the release of a police officer's, and his family's, address, phone number and driver's license to defense counsel during a criminal trial in which the officer testified against the defendants. The other case dealt with the release of graphic details of a rape by an unknown assailant.

Unlike those two cases, Lambert "has only identified a risk of financial harm." The court further stated:

While the Court is not unmindful of the problems which may result from the release of personal information, it nonetheless is beyond dispute that plaintiff's injury from the release of information in this case bears no equivalence to the potential and actual harm suffered [in the two cases sited by the Court.]

So in the Sixth Circuit, release of information that could lead to bodily harm or further harms victims of violent crimes rises to the level of constitutional protection. Release of personal information that could lead only to financial harm is not constitutionally protected.