Don't Forget Common Sense

21 March 2013 Consumer Class Defense Counsel Blog

Today, Foley & Lardner LLP issued a Legal News Alert for our clients regarding the recent decision of the Massachusetts Supreme Judicial Court that ZIP Codes are “personal identification information” and therefore it is a violation of Massachusetts law for a merchant to ask for that information during a credit card transaction. See Tyler v. Michael’s Stores, Inc. My original thought was that almost every gas station in Massachusetts will likely have to change its pay-at-the-pump stations that require you to provide your ZIP Code prior to pumping gas. This security feature was originally instituted as fraud protection at un-manned pumps. Less fraud detection typically means that the cost of the good will go up to compensate for the fraud losses. Nevertheless, the practice may be no more, so I feel for my Massachusetts brethren that may eventually have to pay more for gas. 

My second thought, and much more on point for this Blog, was that too often attorneys and courts lose sight of the common sense answer. We get so wrapped up in the legal analyses that it can be easy to miss the forest for the trees. This often periscope view is why you — the clients — often add a lot of value to the legal strategy for a case. 

I must admit that I have not read the briefs from the Massachusetts case to know if these arguments were raised, but there are a few common sense arguments that I think should have been considered in the case. First, according to About.com, the Zoning Improvement Plan or “ZIP Code” originally began on July 1, 1963 to assist the U.S. Postal Service in handling the increase in the number of items mailed, primarily due to business mail. The first digit designated a broad geographical area of the United States, ranging from zero for the Northeast to nine for the far west.  This was followed by two digits that more closely pinpointed population concentrations and those sectional centers accessible to common transportation networks. The final two digits designated small post offices or postal zones in larger zoned cities (http://inventors.about.com/od/xyzstartinventions/a/zipcode.htm). Then in 1983, a hyphen and four digits were added to the existing five digit ZIP Code. The first five digits continued to identify an area of the country and delivery office to which mail is directed. The sixth and seventh numbers were added to denote a delivery sector, which may be several blocks, a group of streets, a group of post office boxes, several office buildings, or a small geographic area. The last two numbers denote a delivery segment, which might be one floor of an office building, or one side of a street. 

Thus, the ZIP Code was developed to be public information to assist the US Postal Service in finding the correct address. Knowing someone’s ZIP Code doesn’t mean you know how to get to the person’s home. In fact, the ZIP Code could be to a Post Office Box that is located in an entirely different city or state from the person’s physical residence.   

Compare a ZIP Code to the property records that you can access on your computer from most local property appraisers’ Web sites or tax collectors’ Web sites. An actual picture of your home, the size of your home, what you paid for your home, and whether you have paid the taxes on your home, are all public records.  Included in that information is your ZIP Code. Thus, how can the use of a ZIP Code for credit card purchases be any more threatening to a consumer than having a picture of your home on the web? The logic escapes me. 

The next time that you need to consult legal counsel, don’t be afraid to share your thoughts about the case with your attorney. Often there are practicalities about your business that you know best, and which may be of tremendous help to your attorney in forming his or her trial strategy. 

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