On Friday, March 3, 2023 at 9 a.m, newly appointed New Jersey Superior Court Judge Dean R. Marcolongo will hear argument on OPRAMachine’s motion to dismiss a lawsuit that claims that it is liable for allowing the unredacted social security numbers of eighty-eight people to remain on its website for fifty-three days.
One of the issues Judge Marcolongo will rule upon is whether OPRAMachine, like Facebook, discussion forums, listservs and similar platforms, is immune from liability under Section 230 of the Communications Decency Act for merely distributing content that was authored by someone else. The operative language of Section 230 is “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Marcolongo’s ruling could have a profound effect on OPRAMachine’s future.
OPRAMachine.com is a free website through which people can make Open Public Records Act (OPRA) requests to New Jersey government agencies. Both the OPRA requests and their responses are published on the internet and archived in perpetuity which allows them to be read by anyone. For more information on the site, see an article on the site’s blog titled “Debunking 5 common misconceptions about OPRAMachine.” (Disclosure: I am a frequent user of OPRAMachine.)
According to the lawsuit, which was filed on November 16, 2022 in Cape May County (Andrew Moon, et al. v. City of North Wildwood, et al, Docket No. CPM-L-443-22), an individual named Greg Walsh used OPRAMachine on January 8, 2022 to request the fire department’s “recertification civil service list” from the City of North Wildwood. Two days later, Scott Jett, North Wildwood’s City Clerk, sent Walsh a document titled “Certification of Eligible for Appointment” that contained “the names, addresses and unredacted social security number of 88 individuals,” according to the lawsuit. Given how OPRAMachine works, the list was published on the internet and was “accessible to the public for 53 days,” according to the suit.
Plaintiffs Andrew Moon, Tyler Huck, and Ryan Ladd claim that the public disclosure of their social security numbers created “a serious and high risk of identity theft.” They claim that the defendants “failed to maintain the privacy and security of the Plaintiffs’ information, in violation of duties imposed by applicable federal and state laws” causing them to suffer “inconvenience, distress, injury to their constitutional rights to the privacy, increased risk of fraud, identity theft, and ascertainable financial harm, including costs of monitoring their credit to detect incidences of identity theft.”
Moon, Huck and Ladd are asking the court to certify their suit as a class action because, they claim, the number of other people who have suffered public disclosure of personal identifiers, such as social security numbers, are “so numerous that joinder of individual claims is impracticable.”
The defendants in their lawsuit are North Wildwood, Jett, OPRAMachine, Insight Intelligence, LLC (which owns OPRAMachine) and Gavin Rozzi, the registered agent for Insight Intelligence, LLC. Moon, Huck and Ladd claim that all the defendants violated the New Jersey Consumer Fraud Act and claim that North Wildwood and Jett are liable to them under the New Jersey Civil Rights Act. They seek monetary damages and attorney fees as well as injunctions that would require North Wildwood and OPRAMachine to “strengthen their data security systems” and to “engage third-party auditors and internal personnel to conduct security testing.”
On January 19, 2023, Insight, OPRAMachine and Rozzi filed a motion to dismiss the claims made against them. Their main argument is that Section 230 protects “interactive computer service providers” from liability for content that is published on their sites by others. They claim that North Wildwood and Jett are the parties that uploaded the civil service list, not them. They claim that their “only role in this matter is the operation and ownership of the website.” They also claim that Moon, Huck and Ladd have “not identified any specific actions that [OPRAMachine has] taken in the course of running a public records service that rise to a [Consumer Fraud Act] violation.”
Rozzi asserts that he never “act[ed] personally with the plaintiffs,” that he “formed Insight Intelligence, LLC to avoid personal liability” and that the plaintiffs named him personally as a defendant “to harass and pressure” him. His brief notes that courts are not to “pierce the corporate veil” absent extraordinary reasons that he says are not present in this case.
In their opposition to the dismissal motion, which was filed on February 22, 2023, Moon, Huck and Ladd claim that Section 230 does not confer immunity because OPRAMachine “is not a mere forum for speech but is responsible for the creation and development of the information posted.” They also argue that Insight, OPRAMachine and Rozzi are liable to them due to a 2005 amendment to the Consumer Fraud Act that specifically made the disclosure of social security numbers a form of consumer fraud.
On February 27, 2023, OPRAMachine and Rozzi filed their reply to the plaintiff’s opposition.
Moon, Huck and Ladd are represented in the suit by Oliver T. Barry and Erika Lezama-Simonson, both of the Wildwood law firm of Barry, Corrado & Grassi, P.C. Insight, OPRAMachine and Rozzi are represented by Hackettstown attorney William N. Sosis. North Wildwood and Jett are represented by Gregory T. Alvarez and Luke P. Breslin, both of the Berkely Heights firm of Jackson Lewis, P.C.
Update: March 23, 2023
On March 17, 2023, Cape May County Superior Court Judge Ralph A. Paolone issued an order that a) denied Defendant Insight Intelligence LLC, d/b/a OPRAMachine’s motion to dismiss the claims against it and b) granted Defendant Gavin Rozzi’s motion to dismiss, without prejudice, the claims made againt him personally.
As to the immunity conferred by the Communications Decency Act, the court ruled that “[d]efendants made representations that they enacted security procedures to safeguard Plaintiffs’ information from unauthorized disclosure, release, data leak, and theft. The inference that follows is that Defendants had involvement in creating, obtaining, or curating the information at issue in accordance with such procedures.”
As to Rozzi’s personal liability, the court ruled that in order to pierce the corporate veil, Plaintiff are required to plead in their complaint “fraudulent misrepresentation claims against Rozzi with specificity.” Since such specificity was lacking, the court granted Rozzi’s motion to dismiss. The motion was made without prejudice which presumably allows Plaintiffs to file an amended complaint that contains the requisite specificity.
Update: May 17, 2023
Superior Court Judge Ralph A. Paolone granted OPRAMachine’s motion for reconsideration and dismissed the complaint against it (and its parent company Insight Intelligence, LLC). OPRAMachine’s blog has more information and the audio recording of the hearing before Judge Paolone.