DPPA: What It Means to You
FOI Alert Volume 5 Issue 4 (1999-2000)
As many reporters are aware, on Jan. 12, 2000, the United States Supreme Court unanimously upheld the constitutionality of the Driver’s Privacy Protection Act. The decision in Reno v. Condon has prompted many questions in the journalism community about access to driver’s records across the country. We try to answer a few of them here.
Q: What is the Driver’s Privacy Protection Act?
A: Passed in 1994, the DPPA, as it is commonly called, restricts states from disclosing a driver’s personal information without consent. The information at issue is the sort that is usually collected when one applies for a license – i.e., a person’s name, address, telephone number, vehicle description, Social Security number and medical conditions. The DPPA does not, however, regulate information pertaining to auto accidents, moving violations or driving status. That information still might be available, depending on each state’s law.
Q: So reporters can continue to obtain drivers’ personal information as long they have consented?
A: Yes, but the process by which states determine if an individual has "consented" is about to change – and unfortunately for the worse. Under the original language in the DPPA, persons were deemed to have consented to disclosure if they did not exercise an "opt-out" option provided by the state upon issuance or renewal of a license. (In other words, a driving license application would indicate that disclosure of personal information would be permitted unless the individual checked off a box; if an applicant took no action – left the box blank – consent for disclosure was implied.) Last October, however, the DPPA was amended to require a driver’s "affirmative" consent, or "opt-in," for disclosure. This means that consent can no longer be implied by a driver’s failure to tick off a box; the states must now indicate to drivers that their personal information can be disclosed only if they check off a box giving the state permission to do so. The "opt-in" requirement becomes effective on June 1, 2000.
Q: Are there exemptions in the DPPA for newsgathering activities?
A: No. While the legislation does contain a number of exemptions – disclosure is permitted, for example, to government agencies, insurance companies investigating claims and to licensed private investigators in some circumstances – there are no provisions exempting disclosure to journalists for news-related activities. While the Society of Professional Journalists aggressively fought this legislation, it did not pursue a "newsgathering" exemption. SPJ has a longstanding policy of advocating that the public and the press should enjoy the same degree of access to government records.
Q: What if my state has passed a press exemption allowing journalists access to DMV records? Is that exemption still valid?
A: The Supreme Court did not rule on this issue, but the likely answer is that the DPPA will take precedence over any state efforts to regulate in this area. Unless Congress were to create a press exemption by amending the law, journalists are unlikely to receive any special access to DMV records regardless of their home state.
Q: Do the restrictions against "disclosure" under the DPPA apply to private persons or organizations in possession of DMV information? And does the law prevent state DMVs from formally "selling" these records as opposed to simply giving them away free?
A: Yes on both counts. The DPPA was passed to restrict all forms of non-consensual disclosure of personal DMV information, by government agencies and non-government entities alike. Of course, states and private businesses can continue to disclose and sell this information if they are doing so pursuant to one of the law’s exemptions. But for reporters, who have no special "newsgathering" privileges under the law, the continuation of such practices will be of little or no practical benefit. The bottom line is that newspaper reporters can no sooner "buy" a driver’s personal information than pick it up for free at the local DMV.
Q: What are the penalties for violations of the law of which journalists should be particularly aware?
A: A person who "knowingly" uses information from a driver’s state motor vehicle records for a non-authorized purpose may be subject to a civil action brought by the driver. So a reporter who obtains such information through a "leak" at a state DMV is still prohibited from using it for newsgathering purposes, and could face a lawsuit from an angry driver. Additionally, a person who "knowingly" violates the law could be slapped with a criminal fine. While SPJ does not know of any civil or criminal proceedings against journalists under this law, reporters should be aware of the possible penalties for violation.
Q: Are there any reporting strategies to circumvent the law?
A: Journalists might attempt to argue that they are qualified to receive DMV information under one or more of the law’s existing exemptions. For example, the law permits disclosure "in connection with matters of motor vehicle or driver safety and theft." Journalists working on stories concerning such matters should push for disclosure on these grounds. Working reporters should check out the statute or the Supreme Court’s opinion to see if they might have an argument for disclosure under one of the other exemptions in the law. Journalists also should keep in mind that if they convince a state DMV to release information under one of these exemptions, they might want to request a release in writing to avoid legal complications down the road. If journalists receive such information through a "leak" – that is, through informal channels and without a formal release from the state – and find themselves subsequently prosecuted for violating the law, they may be able to argue at that stage that they were acting properly under one of the law’s exemptions or that they committed no "knowing" infractions. But without any court precedent to draw upon, it is obviously an open question as to how hospitable courts will be to such arguments.
Q: On what basis was the DPPA challenged?
A: The Attorney General of South Carolina, the plaintiff in the case, challenged the law on the grounds that it violated the Tenth and Eleventh Amendments to the U.S. Constitution. The Supreme Court rejected these theories and held that the DPPA was a valid exercise of Congress’s power under the Commerce Clause. This case involved no direct First Amendment issues.
Q: What are the long-term implications of the Supreme Court’s decision regarding access to state records in general?
A: The Court’s ruling establishes that Congress’s Commerce Clause powers enable it to regulate state public records when it believes that some legitimate concern (such as the privacy interests that animated the DPPA) is at stake. Where Congress will next take that power is obviously of tremendous concern to the journalism community.