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Busse v. Motorola, Inc.

Case Date: 06/22/2004
Court: 1st District Appellate
Docket No: 1-02-3430 Rel

SECOND DIVISION
June 22, 2004



No. 1-02-3430

 
JERALD P. BUSSE, STEVEN F. SCHWAB, ROB
RUTHER and MARK LAWSON, Each Individually and On
Behalf of All Others Similarly Situated,

          Plaintiffs-Appellants,

                    v.

MOTOROLA, INC., a Delaware Corporation,
AMERITECH MOBILE COMMUNICATIONS, INC., a
Delaware Corporation, CELLULAR
TELECOMMUNICATIONS INDUSTRY
ASSOCIATION, a District of Colombia Corporation, Each
Separately and On Behalf of All Other Entities Similarly
Situated; SCIENCE ADVISORY GROUP CELLULAR
TELEPHONE RESEARCH, n/k/a Wireless Technology
Research, LLC, a Delaware Corporation; and
EPIDEMIOLOGY RESOURCES, INC., a Massachusetts
Corporation,

          Defendants-Appellees.

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)		 Appeal from
the Circuit Court
of Cook County







No. 95 CH 10332







Honorable
Stephen A. Schiller,
Judge Presiding.

JUSTICE CAHILL delivered the opinion of the court:

We address two questions in this appeal. The first is whether the defendants breachedtheir contracts with a cell phone customer when information received from the customer waspassed on to a third party without permission and then used to study cell phone safety. Thesecond question is whether the personal information about the customer is "private" as that wordis used in defining the tort of intrusion upon one's seclusion. The trial court concluded inawarding summary judgment to the defendants that they neither breached the plaintiffs' servicecontracts with their carriers nor committed the tort of "intrusion upon seclusion." We affirm.

Defendant Epidemiology Resources, Inc. (ERI), a private research firm, conducted thetwo studies at issue. Plaintiffs Jerald P. Busse, Steven F. Schwab and Mark Lawson are part of aclass 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 adatabase to ERI for its studies. Plaintiff Robert Ruther represents a class of plaintiffs whoresponded 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, showingwhether the phone is a mobile or handheld portable unit. Defendant Ameritech MobileCommunications, Inc. (Ameritech), sold cell phone transmission service. Defendant CellularTelecommunications & Internet Association (Cellular) was a national trade association of thecellular telephone industry. Motorola and Ameritech were Cellular members. Defendant WirelessTechnology Research, LLC (Wireless), was a nonprofit corporation that conducted research onwireless telephone use and health. Plaintiffs and Wireless settled and Wireless has been dismissedfrom this case.

In 1994, Wireless and Cellular funded two ERI studies to investigate a possible linkbetween wireless telephone use and mortality. Southwestern Bell Mobile Systems (Bell) andComcast Cellular Communications (Comcast) contracted with ERI to provide customer databasesfor the studies. The contracts contained confidentiality requirements. Defendant Ameritech didnot provide data about its customers for the studies.

The customer data supplied to ERI by Bell and Comcast included customers' names, streetaddresses, cities, states, zip codes, dates of birth, social security numbers, wireless phonenumbers, account numbers, start-of-service dates and the electronic serial numbers of thecustomers' phones. ERI obtained missing data for some wireless customers through a contractwith TRW, a credit bureau.

In a records study, ERI placed the customer information in a database, compared it topublic death records and compared cell phone use with mortality and specific causes of death. Ina patterns-of-use survey, ERI mailed a questionnaire to customers in the database asking, forexample, "how many minutes per week do you yourself talk on your cellular telephone?" "againstwhich ear do you hold it most often?" and "[h]ow often do you move the telephone from ear toear during telephone calls?" The customers were not told the questions were to measure cellphone safety. Results of both studies were published. Customers were not identified.

Plaintiffs filed their original complaint in 1995. Defendants removed the case to federalcourt because count I alleged violations of the Federal Food, Drug and Cosmetic Act (21 U.S.C.