Court denies injunction to stop sale of driver's license photos

SOUTH CAROLINA–South Carolina Attorney General Charlie Condon’s bid to prevent the sale of state driver’s license photos to a New Hampshire company stalled in trial court in mid-February. Calling it a case marked by “an extraordinary amount of misinformation and knee- jerk reactions,” state trial court Judge James Williams in Columbia denied Condon’s request for a temporary injunction.

Condon filed suit in late January seeking to void the state’s contract with Image Data, which had purchased 3.5 million driver’s license photos for $5,000. He alleged that the contract violated the privacy provisions of the South Carolina Constitution which prohibit unreasonable invasions of privacy by the state.

Image Data uses the photos as part of an anti-fraud database it maintains and sells to retailers who use it to verify customers’ identities.

Under federal law, individuals do not have a reasonable expectation of privacy in their driver’s license information, Williams concluded. The driver’s license and photograph have become a common means of identification, used in settings as varied as the bank, grocery store and airline ticket counter, he wrote. Image Data’s identification system displayed the customer’s image for only a brief moment and was therefore no more intrusive than displaying one’s driver’s license to a store clerk.

No broader right to privacy in driver’s records existed under the state constitution, the judge added.

Condon could not show a privacy interest in driver’s photos, nor could he demonstrate that any invasion of privacy occurred, the court held. Unlike other cases involving government database information, the release of information here was limited in scope and Image Data was prohibited by law from using it for any other purpose.

Image Data has established procedures allowing those who do not want their photos used to opt-out, according to the court. This opt- out procedure adequately protects citizen’s privacy and therefore no injury exists on which to grant the preliminary injunction pending the final adjudication of the case, the court concluded.

The court also pointed out that Condon had previously successfully argued to the Fourth Circuit Court of Appeals that no right of privacy in driver’s photos exists. The federal appellate court ruled in Condon v. Reno that a federal law restricting the scope of driver’s license information which the states may distribute was unconstitutional, allowing South Carolina to retain control over the sale of driver’s records.

“Regardless of whether the attorney general was correct then or now, it would be inequitable to allow the attorney general to obtain an injunction on the basis of a new position that is the direct opposite of his longstanding position of record,” the court wrote.

Condon said that he will appeal the decision to the state Supreme Court.

Similar sales in Florida and Colorado have come under fire. In early February, Gov. Jeb Bush ordered that state’s contract with Image Data terminated. Colorado Gov. Bill Owens is also reportedly seeking legislation to ban the sale of driver’s license photos to private companies. (Condon v. Image Data LLC)