{ "id": 1083938, "name": "JERALD P. BUSSE et al., Indiv. and On Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. MOTOROLA, INC., et al., Defendants-Appellees", "name_abbreviation": "Busse v. Motorola, Inc.", "decision_date": "2004-06-22", "docket_number": "No. 1\u201402\u20143430", "first_page": "67", "last_page": "73", "citations": [ { "type": "official", "cite": "351 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "534 U.S. 19", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9107958 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0019-01" ] }, { "cite": "225 F.3d 1063", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11234737 ], "year": 2000, "pin_cites": [ { "page": "1067", "parenthetical": "\"[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\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/225/1063-01" ] }, { "cite": "663 N.W.2d 550", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9114910 ], "year": 2003, "pin_cites": [ { "parenthetical": "social security numbers are broadly recognized as confidential and private, but \"are not on their face revealing, compromisingC ] or embarrassing\"" } ], "opinion_index": 0, "case_paths": [ "/nw2d/663/0550-01" ] }, { "cite": "649 N.W.2d 859", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11453401 ], "year": 2002, "pin_cites": [ { "page": "862-63" } ], "opinion_index": 0, "case_paths": [ "/nw2d/649/0859-01" ] }, { "cite": "390 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5583600 ], "year": 1979, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0435-01" ] }, { "cite": "752 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171608 ], "year": 2001, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0398-01" ] }, { "cite": "723 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415423 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "578" }, { "page": "578-79" }, { "page": "575" }, { "page": "578-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0573-01" ] }, { "cite": "534 N.E.2d 987", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "126 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5556950 ], "year": 1989, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0411-01" ] }, { "cite": "768 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472350 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "1027-31" }, { "page": "1030" }, { "page": "1030-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/1020-01" ] }, { "cite": "660 N.E.2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172415 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0181-01" ] }, { "cite": "259 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "45 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895152 ], "year": 1970, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0434-01" ] }, { "cite": "510 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "117 Ill. 2d 67", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545503 ], "year": 1987, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0067-01" ] }, { "cite": "697 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910284 ], "year": 1998, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0488-01" ] }, { "cite": "779 N.E.2d 302", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637104 ], "year": 2002, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0214-01" ] }, { "cite": "47 C.F.R. \u00a7 64.2005", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 2003, "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "47 U.S.C. \u00a7 222", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "year": 2000, "pin_cites": [ { "page": "(a)" }, { "page": "(d)(2)" }, { "page": "(c)(3)" } ], "opinion_index": 0 }, { "cite": "772 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "21 U.S.C. \u00a7 301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 811, "char_count": 14673, "ocr_confidence": 0.709, "pagerank": { "raw": 1.1304124931441286e-07, "percentile": 0.5756939883367718 }, "sha256": "de457d519740323bf4575c73aea89c69633e4f5de0d4f26a24a9a46ce736eff3", "simhash": "1:09e67fe43d651091", "word_count": 2323 }, "last_updated": "2023-07-14T15:22:07.473803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOLFSON, RJ., and GARCIA, J., concur." ], "parties": [ "JERALD P. BUSSE et al., Indiv. and On Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. MOTOROLA, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nWe address two questions in this appeal. The first is whether the defendants breached their contracts with a cell phone customer when information received from the customer was passed on to a third party without permission and then used to study cell phone safety. The second question is whether the personal information about the customer is \u201cprivate\u201d as that word is used in defining the tort of intrusion upon one\u2019s seclusion. The trial court concluded in awarding summary judgment to the defendants that they neither breached the plaintiffs\u2019 service contracts with their carriers nor committed the tort of \u201cintrusion upon seclusion.\u201d We affirm.\nDefendant Epidemiology Resources, Inc. (ERI), a private research firm, conducted the two studies at issue. Plaintiffs Jerald P. Busse, Steven E Schwab and Mark Lawson are part of a class of cell phone users whose service providers retrieved data from their customer records, including names, addresses and social security numbers, and transferred the information as a database to ERI for its studies. Plaintiff Robert Ruther represents a class of plaintiffs who responded to an ERI mail survey on cell phone use. Defendant Motorola, Inc. (Motorola), manufactured cellular telephones and assigned an electronic serial number to each phone, showing whether the phone is a mobile or handheld portable unit. Defendant Ameriteeh Mobile Communications, Inc. (Ameriteeh), sold cell phone transmission service. Defendant Cellular Telecommunications & Internet Association (Cellular) was a national trade association of the cellular telephone industry. Motorola and Ameriteeh were Cellular members. Defendant Wireless Technology Research, LLC (Wireless), was a nonprofit corporation that conducted research on wireless telephone use and health. Plaintiffs and Wireless settled and Wireless has been dismissed from this case.\nIn 1994, Wireless and Cellular funded two ERI studies to investigate a possible link between wireless telephone use and mortality. Southwestern Bell Mobile Systems (Bell) and Comcast Cellular Communications (Comcast) contracted with ERI to provide customer databases for the studies. The contracts contained confidentiality requirements. Defendant Ameritech did not provide data about its customers for the studies.\nThe customer data supplied to ERI by Bell and Comcast included customers\u2019 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\u2019 phones. ERI obtained missing data for some wireless customers through a contract with TRW, a credit bureau.\nIn a records study, ERI placed the customer information in a database, compared it to public death records and compared cell phone use with mortality and specific causes of death. In a patterns-of-use survey, ERI mailed a questionnaire to customers in the database asking, for example, \u201chow many minutes per week do you yourself talk on your cellular telephone?\u201d \u201cagainst which ear do you hold it most often?\u201d and \u201c[h]ow often do you move the telephone from ear to ear during telephone calls?\u201d The customers were not told the questions were to measure cell phone safety. Results of both studies were published. Customers were not identified.\nPlaintiffs filed their original complaint in 1995. Defendants removed the case to federal court because count I alleged violations of the Federal Food, Drug and Cosmetic Act (21 U.S.C. \u00a7 301 et seq. (2000)). The remaining counts alleged violations of state laws. Plaintiffs withdrew count I and the matter was remanded to state court in 1996. In 1997, the trial court dismissed plaintiffs\u2019 claims for the torts of outrage, negligence per se, conversion and civil battery under section 2 \u2014 615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2 \u2014 615 (West 2002)) (failure to state a claim on which relief could be granted). The trial court did not dismiss plaintiffs\u2019 invasion of privacy claim. Plaintiffs filed an amended complaint in 1999, alleging invasion of privacy by intrusion upon seclusion and realleging the claims dismissed in 1997 (outrage, negligence per se, conversion and civil battery). Plaintiffs added new allegations of breach of contract, tortious interference with a contract and civil conspiracy. On plaintiffs\u2019 motion, the trial court entered an order certifying a nationwide plaintiff class in 2000. See 735 ILCS 5/2 \u2014 801 (West 2000).\nIn 2002, defendants filed a joint amended motion for summary judgment. The evidence before the trial court included plaintiffs\u2019 depositions. No plaintiff alleged a physical or emotional injury. One reported he experienced anger which subsided by 95% within two hours.\nThe trial court granted defendants\u2019 motion for summary judgment and plaintiffs appealed. Plaintiffs raise two issues on appeal: that defendants\u2019 actions breached plaintiffs\u2019 service contracts with their cellular service providers and intruded upon their seclusion. Plaintiffs allege they were not informed of and did not approve the use of their personal information for cell phone safety studies.\nWe review an order of summary judgment de novo. Sollami v. Eaton, 201 Ill. 2d 1, 7, 772 N.E.2d 215 (2002). Summary judgment is to be granted only where the pleadings, depositions, admissions and affidavits show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2\u2014 1005(c) (West 2000).\nHere, the facts are not in dispute. Defendants were entitled to a judgment as a matter of law on plaintiffs\u2019 breach of contract claim under the uses permitted in the federal Telecommunications Act of 1996 (the Act) (47 U.S.C. \u00a7 222 (2000)). Although some of the research at issue here was conducted before the Act became effective, the Federal Communications Commission (FCC) determined that these pre-1996 studies comported with the requirements of the Act. The record contains a \u201cSecond Report and Order and Further Notice of Proposed Rulemaking\u201d adopted and released by the FCC in 1998. The report states that protocols and reports of Wireless\u2019 epidemiological research were submitted to the FCC, which determined that \u201cthe privacy of consumer information [was] appropriately safeguarded.\u201d\nThe Act addresses the duty of telecommunications carriers \u201cto protect the confidentiality of proprietary information\u201d of their customers (47 U.S.C. \u00a7 222(a) (2000)), but allows the carriers to use or disclose customer information to protect the carriers\u2019 own rights and property (47 U.S.C. \u00a7 222(d)(2) (2000)). The Act allows carriers to provide aggregated information to other carriers or persons on reasonable terms upon reasonable request. 47 U.S.C. \u00a7 222(c)(3) (2000). An FCC regulation permits wireless service providers to \u201cuse, disclose, or permit access to [customer information] for the purpose of conducting research on the health effects\u201d of wireless phone use. 47 C.F.R. \u00a7 64.2005(c)(2) (2003).\nHere, the carriers gave proprietary customer information to ERI to study an important public health issue that could threaten the economic viability of the cell phone industry in general and individual carriers in particular. The use of the customer information further complied with the Act because the information provided by Bell and Comcast was subject to reasonable terms, including confidentiality requirements, in response to a reasonable request from ERI.\nWe next turn to plaintiffs\u2019 claims of intrusion upon seclusion. Summary judgment is proper when the party opposing the motion cannot establish an essential element of the cause of action. Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 224, 779 N.E.2d 302 (2002). Although the party opposing summary judgment need not prove nis case, he must provide some factual basis that would arguably entitle him to judgment under the law. Davis v. Times Mirror Magazines, Inc., 297 Ill. App. 3d 488, 495, 697 N.E.2d 380 (1998). Although this is a multistate class action, we apply the substantive law of Illinois. Martin v. Heinold Commodities, Inc., 117 Ill. 2d 67, 82, 510 N.E.2d 840 (1987).\nIllinois courts have long recognized a right of privacy. Leopold v. Levin, 45 Ill. 2d 434, 440, 259 N.E.2d 250 (1970). 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\u2019s name or likeness; (3) public disclosure of private facts; and (4) publicity placing another in a false light. Roehrborn v. Lambert, 277 Ill. App. 3d 181, 660 N.E.2d 180 (1995).\nThe \u201cintrusion\u201d tort has an interesting history in Illinois. See Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020, 1027-31, 768 N.E.2d 303 (2002). To the extent the tort has been recognized, Illinois courts have followed the Restatement (Second) of Torts: \u201cOne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or hin private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intmsion would be highly offensive to a reasonable person.\u201d Restatement (Second) of Torts \u00a7 652B, at 378 (1977); Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411, 417, 534 N.E.2d 987 (1989).\nThe elements of the cause of action typically are stated as: (1) the defendant committed an unauthorized intrusion or prying into the plaintiffs 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. Schmidt, 329 Ill. App. 3d at 1030, citing Johnson v. K mart Corp., 311 Ill. App. 3d 573, 578, 723 N.E.2d 1192 (2000). The elements of the tort are cumulative. Schmidt, 329 Ill. App. 3d at 1030-31. Each element of a tort must be \u201ctruthfully alleged\u201d to sustain a cause of action. Griffin v. Goldenhersh, 323 Ill. App. 3d 398, 406, 752 N.E.2d 1232 (2001). An analysis of the four elements here leads us to the conclusion that without the Restatement\u2019s third element, a private matter or. private facts, there can be no cause of action.\nThe 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 \u201cpersonal\u201d information furnished by the customers, standing alone \u2014 names, telephone numbers, addresses or social security numbers \u2014 has been held to be private facts.\nPrivate facts were at issue and clearly alleged in Johnson, 311 Ill. App. 3d at 578-79. There, defendant K mart hired private investigators to pose as employees at K mart\u2019s warehouse to monitor suspected acts of theft, vandalism and drug use by employees. Johnson, 311 Ill. App. 3d at 575. The investigators gathered and reported personal information about employees, including family problems, romantic interests, sex lives, health problems, future work plans and criticism of K mart. The employees filed a complaint for intrusion upon seclusion. The trial court granted K mart\u2019s 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 K mart\u2019s actions in using private facts to be offensive or objectionable. Johnson, 311 Ill. App. 3d at 578-79.\nMatters of public record \u2014 name, address, date of birth and fact of marriage \u2014 have been held not to be private facts. Geisberger v. Willuhn, 72 Ill. App. 3d 435, 439, 390 N.E.2d 945 (1979). Neither plaintiffs nor defendants cite an Illinois case or statute recognizing a social security number as private information in the sense \u201cprivate\u201d 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.\nPlaintiffs 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), rev\u2019d on other grounds, 663 N.W.2d 550 (Minn. 2003) (social security numbers are broadly recognized as confidential and private, but \u201care not on their face revealing, compromisingC ] or embarrassing\u201d).\nDefendants point to federal cases where social security numbers were deemed not to be private or confidential. See Phillips v. Grendahl, 312 E3d 357, 373 (8th Cir. 2002) (discovery of a.person\u2019s social security number does not fit the profile of intrusion upon seclusion); Andrews v. TRW, Inc., 225 F.3d 1063, 1067 (9th Cir. 2000) (\u201c[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\u201d), rev\u2019d on other grounds, 534 U.S. 19, 151 L. Ed. 2d 339, 122 S. Ct. 441 (2001).\nHere, plaintiffs failed to establish the information obtained by ER1 was private. In the absence of an Illinois law defining social security numbers as private information, we cannot say that defendants\u2019 use of this number fulfills the privacy element necessary to plead intrusion upon seclusion. Nor are the individual pieces of information \u2014 names, address, particulars of cell phone use \u2014 facially revealing, compromising or embarrassing.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nWOLFSON, RJ., and GARCIA, J., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Ben Barnow, Sharon Henricks, and Sheila A. Lynch, all of Barnow & Associates, EC., and William J. Harte, of William J. Harte, Ltd., both of Chicago, and Harold B. Gold, of Harold B. Gold, EC., of Garland, Texas, for appellants.", "Garrett B. Johnson, Terrence J. Dee, and Angela B. Frye, all of Kirkland & Ellis, L.L.E, of Chicago, for appellee Motorola, Inc.", "Michael E Comiskey, of Lord, Bissell & Brook, of Chicago, for appellee Ameriteeh Mobile Communications, Inc.", "H. Patrick Morris, of Johnson & Bell, Ltd., of Chicago, and Alan Garber, of Mason & Martin, L.L.E, of Boston, Massachusetts, for appellee Epidemiology Resources, Inc." ], "corrections": "", "head_matter": "JERALD P. BUSSE et al., Indiv. and On Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. MOTOROLA, INC., et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201402\u20143430\nOpinion filed June 22, 2004.\nRehearing denied August 3, 2004.\nBen Barnow, Sharon Henricks, and Sheila A. Lynch, all of Barnow & Associates, EC., and William J. Harte, of William J. Harte, Ltd., both of Chicago, and Harold B. Gold, of Harold B. Gold, EC., of Garland, Texas, for appellants.\nGarrett B. Johnson, Terrence J. Dee, and Angela B. Frye, all of Kirkland & Ellis, L.L.E, of Chicago, for appellee Motorola, Inc.\nMichael E Comiskey, of Lord, Bissell & Brook, of Chicago, for appellee Ameriteeh Mobile Communications, Inc.\nH. Patrick Morris, of Johnson & Bell, Ltd., of Chicago, and Alan Garber, of Mason & Martin, L.L.E, of Boston, Massachusetts, for appellee Epidemiology Resources, Inc." }, "file_name": "0067-01", "first_page_order": 85, "last_page_order": 91 }