States to Feds: We Don't Want Your Legislated Privacy

Constitutional laws are tested as states resist a federal mandate to control access to public records.

by / November 30, 1997
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 measures to prohibit access by their citizens to the motor-vehicle records. This command clearly runs afoul of the holdings of New York and Printz." Shedd concluded that "regardless of whatever extent Congress may act under the Commerce Clause in the field of motor-vehicle records, it clearly exceeded its power thereunder in enacting the DPPA."

Surprisingly, Shedd came much closer to agreeing with the government's argument that the statute was justified by the Fourteenth Amendment because it "protects the right of privacy by prohibiting the states from publicly disclosing 'personal information' contained in state motor-vehicle records." The primary reference point here was the Supreme Court's decision in Whalen v. Roe, 429 U.S. 589 (1977), in which the court ruled that there was no constitutional privacy protection for information collected as part of a New York database containing the names and addresses of all persons who received prescriptions for certain drugs for which there was both a lawful and unlawful market. The Court pointed out that "we therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data." Shedd went on to point out that the Fourth Circuit, which includes South Carolina, had found at least three times the existence of a constitutional right of privacy in personal information, although none of the cases had upheld that right under the facts presented. After reviewing the Fourth Circuit's precedents, Shedd admitted that "it seems certain that an individual's interest in not having certain personal information disseminated by the government is at least equal to, and probably greater than, his interest in merely avoiding disclosure of that information to the government."

Shedd pointed out that the DPPA's definition of personal information was "facially open-ended" and noted that "this is significant because it straightaway undercuts the United States' position that the DPPA protects the privacy interest recognized by the Constitution. Under the United States' view, virtually all information maintained by a state in its motor vehicle records -- except for those specific items the DPPA excludes -- would have to be considered, automatically, as being within the constitutional right to privacy. Of course, this cannot be accurate, at least in the Fourth Circuit, because [precedent] clearly establishes, for example, that information that is otherwise freely available in public records is not constitutionally protected." Shedd found that personal information in motor vehicle records -- such as name, driver identification number, address, phone number, and photograph -- "are clearly not the type of intimate matters for which individuals have a 'reasonable expectation of confidentiality' that the Constitution protects." While some medical information might be of an intimate nature, he indicated that matters such as whether a driver wears eyeglasses
or has some handicap were easily
discernible through observation and could not be considered private. He observed that "the phrase 'medical or disability information' is so broad that it encompasses a seemingly infinite set of information, only some of which is in fact entitled to privacy protection."

A Battle Worth Fighting?

The South Carolina and Oklahoma decisions are not the end of the story. Shedd said his decision applied only
to South Carolina, so the law is
only unconstitutional in two states. Whether the government will bother to appeal is unclear since the decisions have such a small geographic impact. While the press has been wanting to challenge the statute since its inception on First Amendment grounds, only one challenge addressing that issue was filed -- by Bill Loving, a
journalism professor in Oklahoma.
The case was dismissed for lack of standing.

However, the South Carolina and Oklahoma decisions may be largely symbolic. Since the Tenth Amendment challenge involved the federal government requiring the states to do something for which it had no jurisdictional basis, once the state acted on its own, the Tenth Amendment challenge is moot. A state might be able to argue that it passed legislation under federal duress, but the Tenth Amendment argument is probably stronger before the state has acted on its own. As a practical matter, this means that, while the federal DPPA may be unconstitutional, its basic policies can live
on in state legislation enacted as a result of the DPPA. The bottom line may be that a bad federal law will
remain enshrined in a number of bad
state laws.

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues.

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Harry Hammitt Contributing Writer