The constitutionality of the Driver's Privacy Protection Act: a fork in the information access road.

• Author: Karras, Angela R.

1. INTRODUCTION

   * City police departments discovered to have abused the cover of immunity to avoid prosecution for major traffic violations, leaving citizens to cover accident damages caused by at-fault police officers.(1)

   * Minorities driving through mostly white suburbs found twice as likely to be ticketed for traffic violations as whites.(2)

   * Drunken snowmobile driver kills child in an accident, yet the snowmobiler's license and licenses of more than 2,000 other snowmobile owners had been suspended for alcohol-related offenses.(3)

   All of these public safety news stories were constructed with the use of motor vehicle records.(4) And all of these stories--and stories like them--may never again be possible in the wake of the federal Driver's Privacy Protection Act of 1994 (DPPA).(5)

   The DPPA, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality.(6) Decisions in the Fourth, Seventh, Tenth, and Eleventh Circuit courts over the past year have disputed the DPPA's validity under the Tenth, Eleventh, Fourteenth, and First Amendments. A split among these courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, have drawn increased attention towards the DPPA.

   The concern for information access in light of the DPPA, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument--or at least brushed to the side. Only one of the courts--the Seventh Circuit--actually examined the DPPA's effect on the First Amendment. This issue should not only be considered as a serious factor, but scrutinized carefully within the discussion surrounding the DPPA's constitutionality, especially since the Act's ramifications now have spread into virtually every corner of the news-gathering process.

   This Note does not delve with extensive detail into the legal arguments behind dual sovereignty or right to privacy, but rather utilizes these issues generally in order to properly frame a comprehensive discussion about the constitutionality of the DPPA in light of the First Amendment and information access. In addition, rather than focus on the rights of private individuals, this Note centers on the insidious effects of the DPPA on the ability of the news media and commercial institutions to access motor vehicle records.

   Part II of this Note provides an overarching examination of the DPPA as a statute and as a policy, presenting a detailed look at the legislative history and congressional intent behind the Act as well as its consequent statutory construction. Part III examines the states' options under the DPPA and the difficulty they faced in implementing the Act while simultaneously striving to preserve notions of state sovereignty and information access. Part IV presents the recent decisions of the four circuits currently split over the DPPA's constitutionality, summarizing the arguments presented within Tenth, Fourteenth, Eleventh, and First Amendment contexts. Part V reviews these decisions and the DPPA's ramifications from a First Amendment standpoint and argues in favor of finding the Act unconstitutional for several enumerated reasons. This Note concludes by noting that although the Act may have been well-intended and even necessary on an individual state-by-state bases, the federal DPPA ultimately not only infringes on the First Amendment, but unduly inhibits the news-gathering process and severely restricts the right of information access.

2. BACKGROUND OF THE DRIVER'S PRIVACY PROTECTION ACT

   1. Historical and Legislative Background

      Senator Barbara Boxer (D-California) introduced the DPPA into the U.S. Senate on November 16, 1993,(7) as an amendment to the Violent Crime Control Act of 1994.(8) The proposed DPPA was developed "to protect the personal privacy and safety of licensed drivers consistent with the legitimate needs of business and government."(9) The impetus behind the Act was the 1989 death of actress Rebecca Schaeffer, star of the hit television series, My Sister Sam.(10) A stalker murdered Schaeffer in the doorway of her California apartment after obtaining her home address through a Tucson detective agency that had procured the information from state motor vehicle records.(11)

      Although Senator Boxer and additional supporters argued that the DPPA served as a necessary and well-written act intending to strike "a critical balance between the legitimate governmental and business needs for this information, and the fundamental right of our people to privacy and safety,"(12) not everyone stood in agreement that a federal DPPA was the right means to meet those ends. In fact, although Senator Orrin Hatch (R-Utah) agreed that more measures should be taken to combat stalking and to prevent general disclosure of personal information by government agencies, he highlighted three distinct and legitimate concerns about instituting a federal DPPA.(13) First, Senator Hatch raised the practical issue that there had not been an adequate amount of time since the introduction of the crime bill to address the DPPA's potential impact and cost. (14) Second, he reminded the Senate that the Act would place "unfunded mandates"(15) on the states which could result in the states prohibiting all uses of motor vehicle records, even for "legitimate business and press purposes."(16) Finally, Senator Hatch voiced a constitutional concern about subjecting states' departments of motor vehicles to civil penalties for "wrongful disclosure of drivers license information" under the Act.(17)

      Before relinquishing the floor of the Senate during the debate, Senator Hatch raised what he saw as one of the greatest potential harms of the DPPA: severely restricting access to information and thus, greatly inhibiting the news-gathering process.(18) Reading aloud a letter from the Utah branch of the Society of Professional Journalists, Senator Hatch elucidated the concerns of the press and stated that consideration needed to be given to "these professional journalists and others who feel [Senator Boxer's] amendment might be damaging to the information-gathering process."(19) Despite Senator Hatch's objections, both the U.S. Senate and House of Representatives(20) passed the amendment, and President Bill Clinton signed it into law on September 13, 1994,(21) thus creating the federal DPPA currently in place.

   2. Statutory Construction and Application

      The DPPA contains five main sections. The first part of the statute, section 2721, sets out the general prohibition of the release and use of particular personal information obtained from state motor vehicle records.(22) Specifically, section 2721(a) of the DPPA states that "a State department of motor vehicles [DMV] ... shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record."(23) Section 2725(3) further defines "personal information" as "an individual's photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information."(24) However, an individual's five-digit zip code, as well as information on vehicular accidents, driving violations, and driver's status, are not included in this prohibitionary measure.(25) Additionally, section 2721(b) also lists the fourteen exceptions to the DPPA, ranging from agencies carrying out official functions to insurance companies verifying information provided by potential clients.(26) The "permissible uses" appear as follows:

      (1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a [f]ederal, [s]tate, or local agency in carrying out its functions. (2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of nonowner [sic] records from the original owner records of motor vehicle manufacturers. (3) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only-- (A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and (B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual. (4) For use in connection with any civil, criminal, administrative or arbitral proceeding in any [f]ederal, [s]tate or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a [f]ederal, [s]tate, or local court. (5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals. (6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating[,] or underwriting. (7) For use in providing notice to the owners of towed or impounded vehicles. (8) For use by any licensed private investigative agency or licensed security service for any purpose...