Congress can regulate release of drivers’ records

High court overturns challenge to Driver’s Privacy Protection Act

From the Winter 2000 issue of The News Media & The Law, page 3.

The Congress of the United States has the authority to tell state governments to close off personal information in their drivers license databases, the U.S. Supreme Court ruled unanimously in mid-January, rejecting the arguments of the state of South Carolina that these were state rules to make, not rules that the federal government should be imposing on states.

In a brief and unanimous opinion, the justices side stepped the arguments of journalists and others presented in friend-of-the-court briefs. The journalists had hoped the Court would read and consider numerous examples of how disclosure of this information has served important public interests.

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In the end, the fate of the Drivers Privacy Protection Act, a complex federal statute mostly preventing public access to personal information in state drivers records, turned on arguments about whether Congress had the authority to impose such a law on the states.

The high court did not address the issues of privacy that led to the law’s enactment and greatly disturbed journalists who will have less access to records they once regularly used in their reporting.

The attorney general of South Carolina said Congress could not use such a law to regulate the states without violating the prohibitions of the Tenth Amendment to the Constitution against federal government intrusions on the states’ right to govern themselves.

The attorney general of the United States said that the Commerce Clause gives Congress the authority to regulate interstate commerce — including the sale or release of information in databases into interstate commerce.

The U.S. Supreme Court went with the federal government, holding that motor vehicle information, which it said the states had historically sold, is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with “customized solicitations.”

Drivers’ personal information is an article in interstate commerce but that does not conclusively resolve the issue, the high court said. It also considered that the statute does not require the states to regulate their citizens; instead it regulated states as “owners of databases.” Also, the act does not require state officials to assist in enforcing federal laws regulating individuals, it said.

Neither the government nor the high court addressed the privacy concerns that prompted Sen. Barbara Boxer (D-Calif.) and Rep. James Moran (D-Va.) to introduce and then champion the enactment of the law in 1994.

Boxer had specifically addressed the murder of actress Rebecca Schaeffer by a stalker who, with the help of a private investigator, had obtained her home address from Department of Motor Vehicle records.

The high court simply did not discuss whether Congress had correctly addressed privacy concerns by limiting access to information that had traditionally been available to the public in most states. Instead, it only ruled that in doing so, Congress had not violated principles of federalism.

Before the federal District Court in Columbia, S.C., and the U.S. Court of Appeals in Richmond, Va. (4th Cir.), the federal government had argued that the Fourteenth Amendment to the Constitution could be used to regulate state interference with the due process rights of its citizens. The government did not raise that argument before the high court, however, and the court notes that the Solicitor General for the United States disavowed any reliance on that theory at oral argument.

The decision displaces a similar ruling by the U.S. Court of Appeals in Atlanta (11th Cir.) upholding Alabama’s refusal to enforce the law. (See NM&L, Spring 1999)

The U.S. Court of Appeals in Denver (10th Cir.) had rejected Oklahoma’s challenge to the Act and the U.S. Court of Appeals in Chicago (7th Cir.) had rejected a challenge by Wisconsin. (See NM&L, Winter 1999)

The high court took no note of issues raised in a friend-of-the court brief by The Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, and the Society of Professional Journalists.

The journalists had argued that there is no constitutional right to privacy in drivers’ information, and that privacy protection in these records was misplaced.

Even if license holders have an interest in privacy, it would be outweighed by the public’s strong interest in disclosure, they said. They showed through numerous examples that access to Department of Motor Vehicle records enables the press and public to scrutinize the government’s licensing of drivers and registration of vehicles, and that journalists had used these records to the public’s benefit.

They also told the Court that its attempt to protect a citizen’s privacy from intrusion by other citizens ran counter to its own recognition in an earlier case, Katz v. United States, that the protection of privacy is better left to the states.

Every state has open records laws, they wrote, many of which were subverted by this act.

Privacy issues also figured prominently in a brief submitted by the Electronic Privacy Information Center in Washington, D.C., a privacy advocacy group. It argued that sale of the information by state DMVs violates individuals’ interest in having state agencies use collected personal information only for the purposes for which it is obtained. (Reno v. Condon)