October 1999
Supreme Court to hear state case | Attorney General issues opinions
Supreme Court to hear state case.The U.S. Supreme Court will hear oral arguments Nov. 10 as it considers whether Congress had the constitutional authority to override state open records laws when it enacted the Driver's Privacy Protection Act (DPPA).
Five lower federal courts, including the 11th and 4th U.S. Circuit Courts of Appeals, concluded that Congress violated the 10th Amendment when it enacted the DPPA in 1994. However, three courts, including the 7th and 10th U.S. Circuit Courts of Appeals, deemed the Act a constitutional exercise of congressional power under the Commerce Clause.A decision by the Supreme Court is expected early next year. Congress, however, may not wait for the Court to decide on the validity of the DPPA. A transportation appropriations bill being considered in early September would force states to limit access to driver's license information in exchange for federal highway funds.
Such an approach, though, is not assured of passing constitutional muster, either. The 4th U.S. Circuit Court of Appeals, while striking down the DPPA, commented that it was "hard pressed" to see a connection between privacy and highway funds.
Still, the DPPA represents a strong belief by some people that the information provided to obtain a driver's license -- address, birth date, Social Security number, photograph, height and weight -- should be kept from public view. Four of the federal courts interpreting the DPPA did not agree, however. In striking down the statute, they said drivers have no reasonable expectation that such motor vehicle record data will be kept secret. Indeed, this is the very sort of information to which individuals do not have a reasonable expectation [of privacy]," wrote the 4th Circuit.
Part of the 1994 Crime Bill, the Driver's Privacy Protection Act was intended to prevent stalkers and anti-abortion protesters from locating people using information obtained from state Department of Motor Vehicle records. Critics of the DPPA have noted that its proponents supplied no statistical evidence to support their argument that such records posed a significant danger.
In effect, the DPPA superseded the law in 42 states where driver's license and vehicle registration information were open records. States were permitted to keep DMV records open only if their legislatures voted to do so and if they allowed drivers the option of keeping "personal" information secret. When the statute took effect in September 1997, legislatures in 31 states had approved an "opt-out" policy, according to a 1997 Quill article.
Although a conflict between opposing social values -- individual privacy and public access to government records -- is at the heart of the Act, only four of the courts to review the statute examined whether a constitutional right of privacy precludes the disclosure of DMV records. Instead, judicial interpretation of the statute centered squarely on whether Congress exceeded its authority under the Commerce Clause in violation of the 10th Amendment.
In deciding whether Congress infringed on states' rights when it regulated public access to driver's licenses, the lower courts came to opposing conclusions about whether the DPPA:
Requires states to passively withold records to meet a federal standard or requires states to actively administer an unfunded federal policy;
Affects states as governments or as the owners of data bases of personal information; and
Actually affects interstate commerce in personal information.
The Department of Justice has contended in court that the federal government's power to regulate interstate trade under the Commerce Clause of the U.S. Constitution gave Congress the authority to enact the DPPA. However, congressional power under the Commerce Clause is constrained by the 10th Amendment, which reserves to the states the powers not explicitly delegated to the federal government by the Constitution.
Courts upholding the statute found it to be a constitutional, generally applicable law setting a federal standard that simply requires states to passively withhold information. They also agreed with the federal government's contention that the Act constitutionally affected states as owners of databases of personal information, not as governments. In other words, these courts concluded that the DPPA does not affect any unique government function, such as the state legislative process or state law enforcement activities. Rather, it regulates business-related activities in which some states happen to be engaging.
However, courts striking down the Act concluded that it unconstitutionally requires states to actively administer an unfunded federal regulatory program.
The DPPA is not a law of general applicability that incidentally applies to the states, but rather is, as the 4th Circuit said, "a law that, for all intents and purposes, applies only to the States." The Act does not attempt to regulate the disclosure of personal information contained in private databases but instead regulates only the release of such information contained in state DMV records. In essence, the statute unconstitutionally requires states to create and maintain a system to enforce a federal policy.
The 11th Circuit, in striking down the statute, also questioned whether the DPPA actually affects inter-state trafficking in personal information because Congress "riddled the Act with more holes than Swiss cheese" and thus exempted from the DPPA