In April, the Eleventh Circuit found that the Drivers Privacy Protection Act (DPPA) was unconstitutional -- the second appellate court to reach that conclusion. The Eleventh Circuit's decision gives the privacy statute a 2-2 average in the appellate courts, meaning the statute is surely headed for a showdown in the Supreme Court.
All four courts weighing the statute's constitutionality have used the same handful of Supreme Court decisions on the Tenth Amendment to reach opposite conclusions. But each subsequent decision added something to the analysis, making each position stronger than before.
The Fourth Circuit took the first shot, striking down the DPPA in a challenge brought by South Carolina. The court's analysis hinged almost entirely on its interpretation that the federal government can only require states to follow laws of general applicability, not ones aimed specifically at regulating state functions.
The Tenth Circuit seemed quizzical about that conclusion, but didn't say much about why it found the statute did not violate the Tenth Amendment's distinctions between federal and state authority.
The Seventh Circuit provided a greater analytical basis for the side favoring upholding the law. One of the most contentious issues in litigation over the constitutionality of the DPPA is identifying exactly where Congress derived its constitutional authority for the law and what exactly it intended the law to accomplish. Depending on how one answers those questions, the law is either an unconstitutional intrusion on state authority, or a routine regulation of an aspect of interstate commerce.
Seventh Circuit Court Judge Frank Easterbrook found that the congressional goal was regulation of interstate commerce in database information. He explained that "the basic distinction is that states and private parties may be the objects of regulation, although states cannot be compelled to become regulators of private conduct. The Drivers Privacy Protection Act affects states as owners of databases; it does not affect them in their role as governments.
"Because the Drivers Privacy Protection Act affects states as owners of data, rather than as sovereigns, it does not commandeer states in violation of the Constitution," he added. "Wisconsin [the state challenging the law's constitutionality] is no more a regulator or law enforcer when it decides what information to release from its database than is the corner Blockbuster Video outlet."
Another crucial element of the case was to persuade the courts that federal regulation of commercial databases already existed and that the DPPA was only another element in a pervasive scheme of regulation. The only statutes the government trotted out to prove its point were the Video Privacy Protection Act, protecting lists of video rentals, and the Cable Communications Policy Act, which protects subscriber cable information. Easterbrook accepted these as indications of widespread regulation and said there was no need to regulate the entire database industry under a single law.
Easterbrook was also the first to address the lurking First Amendment issue -- that government could not close down access to records that had been traditionally public. Easterbrook quickly brushed that argument aside, noting, "one response is that the First Amendment differs from the Freedom of Information Act. Peering into public records is not part of the 'freedom of speech' that the First Amendment protects. No one thinks that the Privacy Act violates the First Amendment. Well, maybe the plaintiffs do, but their position is untenable."
The Seventh Circuit's ruling substantially fleshed out the position favoring the DPPA's constitutionality. But the Eleventh Circuit decision reached the opposite conclusion in its April ruling.
Writing for the court, Circuit Court Judge James Hill noted that the statute was intended to restrict access to motor vehicle records but that it contained so many exceptions it fell short of its goal. He also more accurately portrayed the congressional intent of the statute, noting, "it is clear that Congress sought by this act to protect the public from 'stalkers' who might use motor vehicle information to locate their victims." He added, "in trying to protect legitimate governmental and business uses of such information, however, Congress riddled the act with more holes than Swiss cheese. Through these holes escaped most of the interstate commerce activity covered by the act."
After listing the obligations the statute placed on the states, Hill observed, "no one disputes that Congress, through the DPPA, has enacted a federal regulatory program to control the dissemination and cloaking of the states' motor vehicle information."
Hill pointed out that Congress could extend laws of general applicability -- such as labor relations laws -- to the states, but could not regulate an activity that was performed only by the state. "Instead of bringing the states within the scope of an otherwise generally applicable law, Congress passed the DPPA specifically to regulate the states' control of the states' own property -- the motor vehicle records," he explained.
The court rejected the claim that the DPPA was but a part of a federal scheme to regulate databases. It also rejected the argument that the law simply regulated commercial activity in the buying and selling of personal information. Hill noted, "the DPPA is not a law of general applicability. Only states collect driver's license and motor vehicle information. This is an exercise in sovereignty." He added, "although the act restricts the way in which private parties who obtain personal information from a motor vehicle department may resell or redisclose such information, the act's applicability to private parties is incidental to its foremost purpose: regulating the way in which states disseminate information collected by their motor vehicle divisions."
Acceptance and review of the DPPA by the Supreme Court would probably result in a decision within two years. Until that time, the law is very much up in the air.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues. E-mail