No issue along the access-privacy divide has so graphically drawn the line between access and privacy advocates as the Driver's Privacy Protection Act (DPPA); a law passed several years ago by Congress that became effective this September.

Designed largely to combat the misuse of public records, the legislation was driven by anecdotes concerning the slaying of actress Rebecca Shaeffer and the harassment of abortion clinic clients by pro-life activists. The legislation's chosen method of combating misuse was to cut off access to state motor vehicle records. Because a total choke on access to such records could well damage the bottom line of many a state DMV, the law provided a number of exceptions allowing for access, including bulk distribution for commercial use, insurance, private investigators and tow-truck operators. While the irony of the fact that Rebecca Shaeffer's murderer located her unlisted address through the use of a private investigator's request to the California DMV was not lost on opponents of the bill; it apparently was lost on congressional proponents.

Access of Privacy Nightmare?

Access advocates hated the bill with a passion, arguing that public-records disclosure should not be curtailed to most people solely to prevent the occasional misuse of the records by solitary individuals. The press was perhaps most aggressive in its opposition, refusing to accept its own statutory exception in its efforts not to appear different than regular citizens. The press has effectively used drivers' licensing records in many stories dealing with poor drivers of school buses or tractor trailers, but the primary use of the DMV database is its accuracy in locating individuals; such records are generally better than many phonebooks or city directories.

Many privacy advocates generally liked the bill's approach, finding that its restriction of personal information -- and its requirement that individuals be given an opportunity to indicate that they do not want their information disclosed under any circumstances -- provided good protection for the personal information contained in the records. But at least one leading privacy advocate commented that the law was a privacy nightmare, allowing access to a litany of privacy invaders, credit bureaus, insurance companies and direct mailers.

Constitutional Battle

From the bill's inception there was always one question on everyone's mind: Was the law constitutional? Even the bill's proponents had difficulty making an articulate argument that the Constitution's Commerce Clause allowed Congress to tell the states what to do with their public records.

In mid-September we got the first answer to that question. A federal district court in South Carolina enjoined enforcement of the law in South Carolina and ruled that it violated the Tenth Amendment, which states that any rights not specifically reserved to the federal government are reserved to the states and the people. The South Carolina ruling was followed several days later by a preliminary injunction issued by a district court in Oklahoma.

In an opinion steeped in constitutional law that says virtually nothing about information policy, District Court Judge Dennis W. Shedd relied heavily on two recent U.S. Supreme Court decisions, New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 117 S. Ct 2365 (1997) -- the latter being the case that struck down provisions of the Brady bill. Shedd found that "unquestionably, the states have been, and remain, the sovereigns responsible for maintaining motor-vehicle records, and these records constitute property of the states which they lawfully (and necessarily) maintain. In enacting the DPPA, Congress has chosen not to assume the responsibility directly for the dissemination and use of these motor vehicle records. Instead, Congress has commanded the states to implement federal policy by requiring them to regulate the dissemination of these records. In order to comply with Congress' directive, the states are forced by the threat of administrative penalty (and indirectly by civil and criminal sanction) to take

Harry Hammitt  |  Contributing Writer