It's Already Time To Apply 'Son Of Sam' Doctrines To Equifax, If We Can

A round-up of the legal action against Equifax, and what is NOT yet being done.

A multitude of state attorneys general, led by Connecticut AG George Jepsen are asking Equifax to stop selling its online credit monitoring services to customers likely confused and afraid over Equifax’s own data breech. From Bloomberg:

“We object to Equifax seemingly using its own data breach as an opportunity to sell services to breach victims,” the attorneys general said. “Equifax cannot reap benefits from confused consumers who are likely only visiting Equifax’s homepage because they are concerned about whether the breach affects them and their families.”

The legal doctrine we’d all like to apply to Equifax is known as a “Son of Sam” law. Criminals should not be able to profit from the publicity generated by their crimes. The first Son of Sam law was enacted to prevent David Berkowitz from getting a book deal about his serial killings. Here, it is odious for Equifax to profit from the widespread publicity of its data breach, by bamboozling scared victims into buying Equifax’s services.

However, even straight-up Son of Sam laws are of dubious constitutionality. In 1991, the Supreme Court ruled unanimously that New York’s original Son of Sam law, the one passed after Berkowitz was caught, was an unconstitutional restriction on the First Amendment. New York has a revised Son of Sam law that seems to have passed Court scrutiny, but it is a close thing.

Moreover, Son of Sam laws clearly contemplate murders, not financial crimes. And Equifax has not been convicted of any wrongdoing. The theory behind preventing Equifax from selling these services is similar, but the law that would prevent Equifax from doing it… does not exist. That’s why Jepsen and the other attorneys general are asking Equifax to do the right thing, as opposed to prohibiting them outright.

Equifax could tell Jepsen and the other states to go to hell. But the company’s risk profile is already pretty high.

  • The Justice Department is a reportedly opening up insider trading investigations into the company.
  • Massachusetts Attorney General Maura Healey is preparing to sue the company over the breach.
  • Senator Elizabeth Warren has introduced legislation to give consumers more control over their information. Her bill is called the “Freedom from Equifax Exploitation” (FREE) Act, because when Senator Warren is on your ass, she wants you to know it.

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Ignoring Jepsen here would seem to just increase the likelihood that all the states will throw their weight behind Healey’s lawsuit, or Warren’s legislation.

So while things are not great for Equifax, I haven’t really heard any business leaders suggest “the thing” that will end them: stop requiring or accepting their credit reports. Understand, I only care how Equifax reports my credit because my mortgage broker does. I care because it will come up when I buy a car. I care because a gum-chewing teenager at Sears will look at it before she punches me out a store card that I need to buy new gutter-cleaning tools.

If these businesses and institutions stopped asking Equifax what it thinks of me, well, then I don’t need “Freedom from Equifax Exploitation,” so much as I can just choose to not care how they “rate” me.

Instead, even in the face of this massive data breach and the profiteering because of it, mainstream thinkers are still pretty sure we need to empower private companies to collect massive amounts of personal data about us, and assign us a permanent record like someone elected them high school principal. Consumer confidence in Equifax might be at an all time low, but Equifax does not require the trust of consumers, it only needs the trust of lenders to keep on doing its thing.

Which is how I come back to Son of Sam. You can’t potentially murder people’s credit scores, then turn around and profit from the fact that people need to figure out their credit scores. That’d be like if a serial killer said, “Want to know where your loved ones are buried? Buy my book and find out!”

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State Attorneys General Ask Equifax to Stop Selling Credit Monitoring Services [Bloomberg News]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.