The story of former Cravath Swain attorney, James Colliton, isn’t going to generate enormous sympathy.  After all, the 44 year old Colliton, married and father of 5, was nailed for bedding a pair of underage girls.  If it makes anyone feel better, he received 3 concurrent one year sentences after a plea, and was released almost immediately as he already had 19 months inside.

But as is so often the case, out of ugly cases comes issues that have far broader significance, and this is true for Colliton who has sued American Express.  Not surprisingly, the New York Post headline sums up the simpleton’s view of the lawsuit: NERVY PERV SUES AMEX.  For the Post, “nervy pervs” get a different set of rights than their vision of good people.

Using your American Express card to go on the lam? Priceless. Getting turned in by American Express? That’ll be $4.9 million.

You’ve got to admit, it’s cute.  But the nature of his suit is far more serious than the headline suggests.  It seems that Colliton was caught in Canada by police who tracked him down through his use of his Am Ex card, an endeavor in which American Express happily cooperated.  Remember all that “we respect your privacy” crap and “we will keep your personal information private?”  All true, unless a cop asks.  Then Am Ex will tell them anything about you they want to know.  Some privacy, huh?

Walter Olson at Overlawyered  Michael Krauss at Point of Law, via Walter Olson, questions whether the Am Ex agreement stands in the way of the charge card company being a laboring oar in the enforcement of law and the capture of fugitives.

We haven’t seen his contract with Amex, but doubt that it obliges the company to resist requests from law enforcement.”

It’s curious that Walter Michael Krauss asks the question that way.  Obliged to resist?  It presumes the default position to be “happily provide the confidential information of its customers to law enforcement upon request.”  I can’t see the next great Am Ex commercial telling us, “Hey, use Am Ex and we’ll spill our guts to any cop who wants to know about you!”  Not a compelling pitch.

For the common person (the very, very common person), the idea that when a cop asks, you answer doesn’t strike them as an inappropriate proposition.  Submission to the shield is a pervasive theme.  Cops know it and depend upon it.  It helps them to do their job, and one can hardly blame cops for taking advantage. 

But the flip side is that most of us would like some modicum of privacy in our personal lives.  We want to believe all these corporate come-ons that they really do respect our privacy and really will keep our personal information confidential.  We need to trust them. 

I can hear Walter Michael Krauss whispering in my ear, “Oh yeah?  So what are they supposed to do to find this mutt who likes little girls?”  The answer is simple.  Get a warrant.  Show a neutral magistrate that there is sufficient cause to believe that the target has committed a crime and that the confidential information is really needed and its disclosure is appropriate.

What is not good enough is that an entity who has assured us of our confidentiality will immediately bend to the will of the cops for the mere asking.  Sure they are tough with us when we want to dispute a charge, but they are jelly in the hands of anyone who says his title is Detective.  And don’t think this is just about Am Ex.  Do you think Visa or Mastercard are any different?  Or any of the other businesses that collect your personal information?  They all fawn when law enforcement calls. 

Since this action is brought by Colliton, the nervy perv, it will be subject to ridicule and derision.  Few will stand up for the rights of a man who likes little girls.  But while we may care nothing for James Colliton personally, the action is about everyone else’s rights as well, the good, the bad and the ugly.  And it’s usually the ugly that does the dirty work to protect our rights.  Never forget that.

Update:  When I referenced Walter Olson’s post at Overlawyered, I failed to note that almost the entire post was taken from a Michael Krauss post at Point of Law, so all references to Walter should have been to Michael.  While I apologized to Walter for the mis-attribution (though the mistake would have been avoided had the quote been blocked, but that doesn’t change my fault), it seems that Ted Frank, also of Overlawyered, is deeply troubled by my failure to change the body.  I have no idea if this bothered Walter, but it was disturbing enough to Ted that he stopped reading the National Enquirer or bashing lawyers to come over here and give me a piece of his mind (see comment below).

So now I’ve done so, special for Ted.  Ted is very special here, and we do everything we can to keep Ted from being sad.