What a Bunch of Wusses

It would be difficult to find many folks who are more paranoid protectors of privacy information than I am.  But I have to say the tone of this is really pathetic.  (via Overlawyered)   Seriously, how many people think these folks feel truly harmed and how many think they are acting in order to try to score a tort payoff?

Consumers are hoping to cash in on last week's state Supreme Court ruling that it's illegal for retailers to ask customers for their ZIP Codes during credit card transactions, except in limited cases.

More than a dozen new lawsuits have been filed against major chains that do business in California, including Wal-Mart Stores Inc., Bed Bath & Beyond Inc., Crate & Barrel andVictoria's Secret. More filings are expected in the coming weeks.

The flurry of litigation stems from a decision last week againstWilliams-Sonoma Inc. in which the state high court ruled unanimously that ZIP Codes were "personal identification information" that merchants can't demand from customers under a California consumer privacy law.

This rush to court is pathetic on a number of levels

  • Zip code is personal, really?  Do you believe that?
  • Just say no.  Seriously.  I do it all the time -- I get asked for a phone number or a zip code and I always answer "no, sorry."  You know how many retailers have decided they did not want to make a sale to me at that point?  Zero.
  • It's ex post facto law.  Nowhere was it made clear to retailers that the law barred collecting zip codes.  Not until a group of judges effectively made this individual practice illegal did it become so, and then it was enforced retroactively on stores.  If the legislature wants collecting zip codes to be illegal, it should have written in the law that collecting zip codes is illegal.  Or, as a minimum, liability should begin on the day after the court decision.  Suing someone for taking a zip code last year when it only became clear this week it was illegal is classic ex post facto law.
  • Ira Stoll has a funny comment - guess what the first piece of information Jerry Brown's web site asks for?


  1. Greg:

    We ask our customers for zip codes all the time for phone-in credit card transactions. The reason we do this is because we get a lower rate from the credit card companies if we have a confirmed billing zip code to match the card number. It's not your private information I'm after, it's lowering my merchant services costs.

  2. Mark:

    The overwrought concern for privacy is a joke that is used by the socialist against commercial activity throughout the world. They use the "privacy" angle as a stick against legitimate businesses collecting legitimate transaction information, as Greg has explained above.

    I have worked with some of the biggest direct marketing companies in the world doing data analysis. The data I have worked with literally has the names, addresses, phone, and transaction information on tens of millions of people. Some of that information was incredibly personal, including bra size! But, there was absolutely no interest in wasting time in "looking up" this information.

    The fact is, people idiotically surrender their "privacy" in ways that are much more overt than collecting similar information. Don't believe me? Well, the next time you are in a restaurant and you let the waitress run off with your credit card, let me know how really concerned you are with your personal information.

  3. Mark:

    I think the problem is not asking for zip codes for marketing purposes. I routinely say no to phone number and zip code requests in those cases.

    It is where Wal*Mart, and gas stations especially will ask you for your zip code on unsigned Credit card transactions as a form of information that can be verified by the credit card company.

    If you type in the wrong zip code at the gas station, the card will not work.

    This is designed to protect from theft, because it is assumed that the thief may not know your zip code.

    Of course if your wallet gets stolen, rather then just the card, your zip code is on the drivers license. (If you kept your drivers license up to date)

  4. Mark:

    I amend my statement above. Much of the verification is to save the credit card companies from losses since consumers are only liable for $50 or so.

    But in the end if CC issuers can cut their losses they will not only profit more, but will pass some of those savings to us through competitive forces.

  5. rox_publius:

    happy to give my zip code. not so much my phone number.

  6. Xmas:

    For marketing purposes, if they find a lot of customers coming from a far away zip code, it's a sign they should open a store there. I don't know if that's a bad thing.

  7. jt:

    Wait--if it becomes illegal to ask for your zip code, what happens to all those clever schemes to charge local sales taxes for online transactions?

  8. Orion:

    Funny, I run mail order company. I need your zip code and address for a couple of reasons: 1. to ship to you! 2. To lower my merchant services rate. You don't have to give me your information if you don't want to, that's cool. I just can't ship to you. I give merchants my zip but never my phone number unless it is a mail order/online transaction.

    That said, I do have a few customers who send me a money order and have their order shipped to "General Delivery" at a post office near them. With general delivery a local post will hold the mail until you show up. That works for me, but it sure is inconvenient for the customer. I don't know anything about those people but their name.

  9. Vitaeus:

    The "ex post facto" provision in the Constitution is in regards to Criminal Law, not necessarily Civil or Administrative.

  10. NL:

    Following on Vitaeus, ex post facto also appears in Art. I, so it probably only refers to Congress (the same reasoning prohibited Pres. Lincoln from having the power to suspend habeas corpus). It also only says "ex post facto law" which presumably excludes court decisions.

    Courts also get around it by basically saying the law already covered this. So even though from the merchant perspective it's ex post, in a legal context it isn't.

    In principle, of course, I agree with the basic unfairness of it. Really hard to order your behavior and make investments if you can suddenly be liable for years worth of fines for something you didn't know to prevent.

    Also, does this mean credit card companies are somehow at fault? After all, they encouraged the collection of this data by offering lower fees, and they facilitated the collection by building their credit card systems to include this data.

  11. Chris Future:

    I ask "Why" when someone in a store asks for my zip code. Usually they never give a good enough reason. i understand that collecting zip may be required for credit card transactions, but unless it really is why bother. Funny though, if you think about it, zip code is a government assigned number, and most are large enough to not really be personally identifying. i don't get it - other than it being another excuse to infiltrate our lives.

  12. IgotBupkis, President, United Anarchist Society:

    > Wait–if it becomes illegal to ask for your zip code, what happens to all those clever schemes to charge local sales taxes for online transactions?

    This is what's called "The Law of Unintended Consequences".

    And it should be pretty damned hilarious if Cali gets hoist on its own petard, here, as I'll bet they're at the forefront of any such movement.

    > The “ex post facto” provision in the Constitution is in regards to Criminal Law, not necessarily Civil or Administrative.

    That's ok, we all believe in a "living Constitution", don't we? :D

    I, for one, see no reason whatsoever why Civil or Administrative law should be allowed a pass on this. The laws I'm expected to live under and act under should not be "charged back" to any random point in time the legislature -- federal, state, local -- wants to.

  13. mahtso:

    What is not mentioned in this post or the LA Times piece is that the law in question defined a person’s address as one type of personal information. Because the zip code is part of the address, the Cal. Court found it was personal information. This may be a stretch, but it is not like the merchants had no warning.

    As to mail order: the Times piece says that it is one of the exemptions.

  14. IgotBupkis, President, United Anarchist Society:

    > This may be a stretch, but it is not like the merchants had no warning.

    "May be a stretch"?

    Yeah, and Torquemada was really a physical therapist...

    The idea that just, by itself, a zip code is "personal information" needing protection is flat out ludicrous. I probably share my zip code with not less than 10000 other individuals, maybe more.

  15. blokeinfrance:

    Maybe it's happening here too. I now get asked for my zip code (code postale) at my local builders' merchants.
    Some papers are complaining about shops refusing cheques from certain postcodes. But it's legal to do so. A lot of shops are beginning to refuse cheques, tout court (full stop).

  16. Mark:


    IF you think that all you know about your customer is a GD address then you need to get better targeting methods for your mail order business. That is the beauty of "direct marketing", you can explicitly see the results of your marketing efforts.

    Do you mail the customer to their General Delivery address?

  17. Mark:

    Interesting point about phone numbers.

    Toys R US will ask for your phone number. They don't use it for telemarketing, but if you lose your receipt and try to return an item, they can pull up the sale via the phone number you gave.

    For online ordering I give the phone number too. It is usually given to the Fedex, and if Fedex has trouble delivering the item they will give you a call. I had this happen when a mail order item had my address off by a digit.

    So it is not necessarily "evil" for companies to ask for your phone number. It would be nice if they explained better why they are doing it.

    Oh and you can ship without a zip code. But your box gets put in a back office waiting until some postal shmoo can look up the zip and put it on your box. It could take months, but it will eventually get there.

  18. Orion:

    Mark: We have a couple of very reclusive customers who, for whatever reason, want things shipped GD. Why? I don't know, but that is what they want. I do mail order but really, we are not a "direct marketer" in the traditional sense. We don't do mass mailings, have a list, etc, etc.

  19. Douglas2:

    Interesting. The plaintiff in the lawsuit said that the store linked her name from the credit card transaction with her zip-code that she provided, and that they used the two data-points to identify her address, which they then held in their database for future marketing use.
    Her lawyer claims that it is enough information to lead to credit card fraud and identity theft, and that stores are using the false pretense that the information is required for the credit transaction, so deception is involved.

    I think it is worth noting that the case was thrown out at every level of court until this one. Not that this changes the effect, just that I would find it hard to argue that any business "should have known" that asking for a zip was illegal under the 1971 law, when both Judge Ronald Prager of the Superior Court of San Diego County and a three-judge panel of the court of appeal held that it was clearly not, especially as there appear to be other previous published California cases such as Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497 that concluded as a matter of law that a zip code was NOT personally identification information within the meaning of the law in question.

    I know I cared enough about such things that I routinely gave false zip-codes, and I was surprised the first time my card was declined at a gasoline pump as a result. I phoned the credit-card issuer to verify that the real zip from my billing address was actually required to compete the transaction.

    There are three chain retailers that do not have stores in my town that I particularly like. I always give them the most populous zip-code in my town when asked, as I would like them to open a location more convenient to me.

  20. T J Sawyer:

    I always decline to give a phone number, saying, "I don't have one. The phone company took it out because I couldn't pay the bill." I've never been declined. For zip code I always give one 1700 miles away. Of course, if it is actually needed, like at a gas pump, I cough up the real one.