High court takes hard look at driver’s data law

Thursday, November 11, 1999

The Supreme Court yesterday appeared poised to strike down a federal law aimed at keeping individual driver’s license information out of the hands of stalkers and others.

But if the court finds the law unconstitutional, it won’t be because of the objections raised about the law by press and freedom-of-information advocates who say the data should be public.

Freedom-of-information issues were not even mentioned by the justices during hourlong arguments over the law yesterday. Instead, they seemed skeptical because they think the law intrudes on the power of states, which collect driver’s information through their motor vehicles agencies.

“For 150 years or so, the assumption has been that Congress cannot regulate states,” said Justice Anthony Kennedy.

Justice Antonin Scalia added that what a state does with its records is “very much its own business.”

The 1994 Driver’s Privacy Protection Act bars states from selling personal information on driver’s licenses, such as people’s addresses and phone numbers. Congress passed the law after hearing testimony about instances in which license information was used by stalkers to track down their victims. But several states protested the law, arguing that it “commandeered” state employees to enforce what was essentially a federal program. Money is also involved. States have reaped millions of dollars in revenues from the sales of driver’s information databases to direct marketers, charities and businesses.

Press organizations have also cited instances in which the use of publicly available data in reporting has served the public. But no one was making that argument before the court yesterday. Even the attorney general of South Carolina, who opposes the law, embraced the goal of privacy that it was meant to serve.

“This is not about protecting privacy. We are for protecting privacy,” South Carolina Attorney General Charlie Condon told the justices. “The issue is whether hundreds of state employees can be pressed into federal service.” Condon added, “Let South Carolina be run by South Carolinians.”

The conservative Supreme Court has become increasingly sympathetic toward states’ rights issues. Several times in the last five years, the court has reined in congressional efforts to dictate to the states.

Congress justified the driver’s privacy law under the clause of the Constitution that allows it to regulate interstate commerce.

“Databases are things in commerce that Congress may regulate, just as it regulates the discharge of pollutants,” said U.S. Solicitor General Seth Waxman, who was defending the law before the court. Waxman said the law was analogous to federal regulation of state and locally owned airports.

He also said that the public release of driver’s records was “the equivalent in terms of personal safety to being required to walk around all day with a sign” giving a person’s name address and other private information.

Only Justices Stephen Breyer and David Souter seemed supportive of the federal law in their questioning. Both wondered how it could be struck down without also jeopardizing dozens of other laws that affect states, such as the minimum wage law.

A decision in Reno v. Condon could come anytime before the court’s term ends next summer.