Senate considers tightening Drivers Privacy Protection Act
In an effort to curb the sale of driver’s license information, the U.S. Senate plans to consider amending a highway appropriations bill to withhold federal transportation dollars from those states that peddle such information to private businesses.
The legislation, part of the Senate’s federal highway appropriations bill, forbids states receiving federal transportation dollars from selling or providing to any person or business “personal information contained in a driver’s license, or in any motor vehicle record without the express written consent of the individual to whom the information pertains.”
Press advocates denounced the proposed bill, saying such an effort would tighten restrictions already imposed by the federal Drivers Privacy Protection Act.
Passed in 1994 as part of the Violent Crime Control and Law Enforcement Act, the privacy law prohibits states from releasing information from driver’s license and motor vehicle registrations unless they first establish a system allowing citizens to forbid the release of personal information.
Should the amendment to the highway appropriations bill pass Congress, this “opt-out” process would end. Instead, citizens would have to inform the state in writing that they want such information to be made available to the public.
“My guess is that ‘opting out’ is better than ‘opting in,’” said Molly Leahy, lobbyist for the Newspaper Association of America. “In some states, we have access to records of those people who have not opted out.”
Such records, press advocates say, offer reporters and researchers an invaluable resource for conducting investigations pertaining to public safety and government. But the new law, they said, would close such records to all but law enforcement officials.
“This is one more example of this bubble of privacy extending further and further and locking more people out of information about a privileged activity regulated by the government,” said Ian Marquand, the Society of Professional Journalists’ co-chairman for Freedom of Information issues. “Where does it end?”
“It might almost be a silver lining to this if everyone else got as bad treatment as we in the press get,” Marquand told freedomforum.org.
Lawmakers approved the Drivers Privacy Protection Act in response to the 1989 slaying of actress Rebecca Schaeffer, who was killed at her California home by a stalker who used a private investigator to obtain Schaeffer’s driver’s license records.
But Leahy says the current legislation doesn’t seem to be stemming from the Schaeffer incident. Instead, she says, legislators seem to be responding to practices in many states of selling the information to private businesses.
Jane Kirtley, outgoing executive director of the Reporters Committee for the Freedom of the Press, said the original act had “no carrot at the end of the stick.”
“That’s why they tied it to the highway appropriations,” Kirtley told freedomforum.org. “It’s devilishly clever in a way.”
And possibly unconstitutional, she adds.
Several court cases have sprung from the original act, which took effect in most states in 1997.
Last year, U.S. District Judge Barbara Crabb of Madison, Wis., voided the Drivers Privacy Protection Act in that state, saying it unconstitutionally infringed on the state’s sovereignty. Crabb also said the law conflicted with the state’s open records laws by closing records that should be open to the public.
The U.S. Department of Justice is appealing the decision.
Although the decision doesn’t involve driver records specifically, some cite the 9th U.S. Circuit Court of Appeals ruling last year in United Reporting Publishing v. California Highway Patrol as clear evidence that the government cannot prohibit the release of records — arrest records, in this case — for commercial use.
More recently, the U.S. Supreme Court said it would hear arguments during its next term to determine the validity of the Drivers Privacy Protection Act. Specifically, the justices said they would hear a case concerning South Carolina state officials who sold driver’s license information to a New Hampshire company developing a fraud-prevention system for merchants.
Both the 4th U.S. Circuit Court of Appeals, which includes South Carolina, and the 11th U.S. Circuit Court of Appeals have invalidated the law. But the 7th and 10th U.S. Circuit Courts of Appeals both upheld the law.
“It’s very hard to understand why this exercise was begun at this point,” Kirtley said of the latest Senate initiative. “United Publishing and the South Carolina case both have implications on constitutional grounds. It seems odd that they would float this legislation when the Supreme Court might render it unconstitutional on its face.”
But save for the Wisconsin case, the constitutionality of the Drivers Privacy Protection Act isn’t being decided on First Amendment grounds, but on the basis of the Tenth Amendment, which grants states certain rights of sovereignty.
That might bode well for the press, said Kirtley, noting that a number of states already have good access laws.
“But then, sometimes I have the feeling that we’ll get the rulings we want, but we won’t get the results we want,” Kirtley said. “The court may rule the Drivers Protection Act is unconstitutional because it’s a state right. But then every state might close it off to everybody. That would be a Pyrrhic victory.”