No.98-1818
In the Supreme Court of the United States
WISCONSIN DEPARTMENT OF TRANSPORTATION,
DIVISION OF MOTOR VEHICLES, ET AL., PETITIONERS
v.
JANET RENO, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
ALISA B. KLEIN
DANIEL L. KAPLAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721-2725
(1994 & Supp. III 1997), violates the Tenth Amendment.
In the Supreme Court of the United States
No. 98-1818
WISCONSIN DEPARTMENT OF TRANSPORTATION,
DIVISION OF MOTOR VEHICLES, ET AL., PETITIONERS
v.
JANET RENO, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 9a-24a) is reported at 163
F.3d 1000. The opinion of the district court (Pet. App. 27a-46a) is reported
at 12 F. Supp. 2d 921.
JURISDICTION
The judgment of the court of appeals was entered on December 16, 1998. A
petition for rehearing was denied on February 11, 1999 (Pet. App. 7a-8a).
The petition for a writ of certiorari was filed on May 11, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. This case involves a constitutional challenge brought by the State of
Wisconsin to the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C.
2721-2725 (1994 & Supp. III 1997), which restricts disclosure of personal
information from state motor vehicle records.1 An individual who seeks a
driver's license from his State's department of motor vehicles (DMV) is
generally required to give the state DMV a range of personal information,
including his name, address, telephone number, and in some cases medical
information that may bear on the driver's ability to operate a motor vehicle.
In some States, the motor vehicle department also requires a driver to provide
his social security number (SSN) and takes a photograph of the driver. State
DMVs, in turn, often sell this personal information to other individuals
and businesses.2 Although DMVs generally charge only a small fee for each
particular sale of information, aggregate revenues are substantial. For
example, New York's motor vehicle department earned $17 million in one year
from individuals and businesses that used the State's computers to examine
driver's license records. See 1994 WL 212813 (Feb. 3, 1994) (statement of
Janlori Goldman, American Civil Liberties Union).
The personal information sold by DMVs is also used extensively to support
the marketing efforts of corporations and database compilers. See 1994 WL
212836 (Feb. 3, 1994) (statement of Richard A. Barton, Direct Marketing
Association) ("The names and addresses of vehicle owners, in combination
with information about the vehicles they own, are absolutely essential to
the marketing efforts of the nation's automotive industry."). This
information "is combined with information from other sources and used
to create lists for selective marketing use by businesses, charities, and
political candidates." Ibid. See also 1994 WL 212834 (Feb. 3, 1994)
(statement of Dr. Mary J. Culnan, Georgetown University) (describing use
of DMV information by direct marketers).
The highly publicized 1989 murder of actress Rebecca Schaeffer brought to
light the potential threat to privacy and safety posed by this commerce
in motor vehicle record information. Schaeffer had taken pains to ensure
that her address and phone number were not publicly listed. Despite those
precautions, a stalker was able to track her down by obtaining her home
address through her state motor vehicle records. See 140 Cong. Rec. H2522
(daily ed. Apr. 20, 1994) (statement of Rep. Moran). Evidence gathered by
Congress revealed that that incident was similar to many other crimes in
which stalkers, robbers, and assailants had used state motor vehicle records
to locate, threaten, and harm victims.3
Moreover, Congress received evidence indicating that a national solution
was warranted to address the problem of potentially dangerous disclosures
of personal information in motor vehicle records. Marshall Rickert, Motor
Vehicle Administrator for the State of Maryland, who testified in support
of the legislation on behalf of the American Association of Motor Vehicle
Administrators, emphasized that technological advances had dramatically
increased the accessibility of state motor vehicle records, but that "many
state laws have not kept pace with technological advancements, and permit
virtually unlimited public access to driver and motor vehicle records."
1994 WL 212696 (Feb. 4, 1994). Accordingly, he urged that "uniform
national standards are needed." Ibid. In addition, among the incidents
brought to Congress's attention were ones in which stalkers had followed
their victims across state lines. See 1994 WL 212822 (Feb. 3, 1994) (statement
of David Beatty).
2. Based on evidence about threats to individuals' privacy and safety from
misuse of personal information in state motor vehicle records, Congress
enacted the DPPA to restrict the disclosure of personal information in such
records without the consent of the individual to whom the information pertains.
The DPPA prohibits any state DMV, or officer or employee thereof, from "knowingly
disclos[ing] or otherwise mak[ing] available to any person or entity personal
information about any individual obtained by the department in connection
with a motor vehicle record." 18 U.S.C. 2721(a).4 The DPPA defines
"personal information" as any information "that identifies
an individual, including an individual's photograph, social security number,
driver identification number, name, address (but not the 5-digit zip code),
telephone number, and medical or disability information," but not including
"information on vehicular accidents, driving violations, and driver's
status." 18 U.S.C. 2725(3).
The DPPA bars only nonconsensual disclosures. Thus, DMVs may release personal
information for any use, if they provide individuals with an opportunity
to opt out from disclosure when they receive or renew their licenses. See
18 U.S.C. 2721(b)(11). In addition, a DMV may release personal information
about an individual to a requester if the DMV obtains consent to the disclosure
from the individual to whom the information pertains. See 18 U.S.C. 2721(d).
A DMV also may disclose information about an individual if the requester
has that individual's written consent. 18 U.S.C. 2721(b)(13).
The DPPA explicitly disclaims any restriction on the use of motor vehicle
information by "any government agency," including a court, and
also "any private person or entity acting on behalf of a Federal, State,
or local agency in carrying out its functions." 18 U.S.C. 2721(b)(1).
It also expressly permits DMVs to disclose personal information for any
state-authorized purpose relating to the operation of a motor vehicle or
public safety. 18 U.S.C. 2721(b)(14).
The DPPA does not preclude States from disclosing personal information for
other uses in which Congress found an important public interest. Thus, States
may disclose personal information in their motor vehicle records for use
in connection with car safety or theft, driver safety, and other motor vehicle
related matters, 18 U.S.C. 2721(b)(2); by a business to verify the accuracy
of personal information submitted to that business, and further to prevent
fraud or to pursue legal remedies if the information the individual submitted
to the business is revealed to have been inaccurate, 18 U.S.C. 2721(b)(3);
in connection with court, agency, or self-regulatory body proceedings, 18
U.S.C. 2721(b)(4); for research purposes, if the personal information is
not further disclosed or used to contact the individuals, 18 U.S.C. 2721(b)(5);
by insurers in connection with claims investigations, anti-fraud activities,
rating, or underwriting, 18 U.S.C. 2721(b)(6); to notify owners of towed
or impounded vehicles, 18 U.S.C. 2721(b)(7); by licensed private investigative
agencies or security services for permitted purposes, 18 U.S.C. 2721(b)(8);
by employers to verify information relating to a holder of a commercial
driver's license, 18 U.S.C. 2721(b)(9) (1994 & Supp. III 1997); for
use in connection with private tollways, 18 U.S.C. 2721(b)(10); and in certain
circumstances for bulk distribution for surveys, marketing, or solicitation,
if individuals are provided an opportunity, "in a clear and conspicuous
manner," to prohibit such use of information pertaining to them, 18
U.S.C. 2721(b)(12)(a).
The DPPA also regulates, as a matter of federal law, the resale and redisclosure
of personal information obtained from state DMVs, 18 U.S.C. 2721(c) (1994
& Supp. III 1997), and prohibits any person from knowingly obtaining
or disclosing any record for a use not permitted by the DPPA, 18 U.S.C.
2722(a), or providing false information to a state agency to circumvent
the DPPA's restrictions on disclosure, 18 U.S.C. 2722(b). The DPPA sets
forth penalties and civil remedies for knowing violations of the Act. Any
"person" (defined to exclude any State or state agency) who knowingly
violates the DPPA may be subject to a criminal fine. 18 U.S.C. 2723(a),
2725(2). A state agency that maintains "a policy or practice of substantial
noncompliance" with the DPPA may be subject to a civil penalty imposed
by the Attorney General of not more than $5000 per day for each day of substantial
noncompliance. 18 U.S.C. 2723(b). Any person who knowingly obtains, discloses,
or uses information from a state motor vehicle record for a use not permitted
by the DPPA may also be subject to liability in a civil action brought by
the person to whom the information pertains. 18 U.S.C. 2724(a). The States,
however, have no obligation themselves to regulate the use of information
obtained under the Act or to pursue legal remedies against any requester
who obtains or uses information in violation of the Act.
3. The State of Wisconsin receives approximately $8 million each year in
revenue from the sale of motor vehicle records. Pet. App. 30a. Petitioners,
an agency and officer of the State of Wisconsin, intervened in a suit brought
by other plaintiffs in district court, alleging that the DPPA exceeds Congress's
constitutional powers, and seeking an injunction against enforcement of
the DPPA. Id. at 10a-11a. The district court agreed with petitioners that
the DPPA contravenes the Tenth Amendment. Id. at 35a-46a. The district court
ruled that this case is controlled by New York v. United States, 505 U.S.
144 (1992), and Printz v. United States, 521 U.S. 898 (1997), because, it
reasoned, the DPPA "forces state officials to administer and enforce
a federally enacted regulatory program in violation of the Tenth Amendment."
Pet. App. 40a. The court rejected (id. at 41a) the government's "distinction
between: 1) positive and negative injunctions, * * * and 2) Congressional
enactments that require states to regulate third parties and those that
apply to the states directly and are an effort to resolve state-created
problems." The court also rejected the government's reliance on South
Carolina v. Baker, 485 U.S. 505 (1988), which upheld a federal law effectively
requiring States to issue registered bonds rather than bearer bonds, because,
it concluded, that case involved "the incidental application to the
States of a federal law of general applicability." Pet. App. 43a. By
contrast, the DPPA "is not a law of general applicability"; "[o]nly
states collect driver's license and motor vehicle information and, if they
so choose, disseminate it." Id. at 43a-44a.
4. The court of appeals reversed. Pet. App. 9a-24a. The court first rejected
(id. at 14a) the argument that the DPPA "has the same vice as the statutes
condemned in Printz and New York." The court recognized (ibid.) that
the States may have to adopt new rules and take certain actions in order
to comply with the DPPA, but, it observed, "if this is the same thing
as the situation in Printz and New York, then the application of the Fair
Labor Standards Act to the states [upheld in Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528 (1985)] likewise is unconstitutional, for the
FLSA requires states to establish record-keeping systems and to establish
mechanisms for paying employees according to a national formula." The
court explained that "the basic distinction between cases such as South
Carolina and cases such as New York is that states and private parties may
be the objects of regulation, although states cannot be compelled to become
regulators of private conduct." Pet. App. 14a.
The court next addressed the reasoning of the panel majority in Condon v.
Reno, 155 F.3d 453 (4th Cir. 1998), cert. granted, No. 98-1464 (May 17,
1999). The court rejected the Condon panel's conclusion that Congress may
regulate the States only through statutes of "general applicability,"
applicable to private parties as well as state and local governments. See
Pet. App. 17a-20a. The court remarked that, if Congress were constitutionally
required to address the problems of personal information held in both private
and governmental databases in a single statute, the statute "would
rival the Internal Revenue Code for complexity without offering states any
real defense from the cost and inconvenience of regulation," and stressed
that "Brobdignagian legislation is not the Constitution's objective,
even when consolidation is feasible." Id. at 20a. Although the court
suggested that "a law placing states at a disadvantage relative to
similarly-situated private entities would be unconstitutional," id.
at 18a, it noted that petitioners had disavowed any such argument. Id. at
20a. The court thus upheld the Act.5
DISCUSSION
The question presented in this case is the same as the question presented
in Reno v. Condon, cert. granted, No. 98-1464 (May 17, 1999). Accordingly,
the petition in this case should be held pending the decision in Condon,
and then disposed of as appropriate in light of the decision in that case.
CONCLUSION
The petition for a writ of certiorari should be held pending the decision
in Reno v. Condon, cert. granted, No. 98-1464 (May 17, 1999), and then disposed
of as appropriate in light of the decision in that case.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
ALISA B. KLEIN
DANIEL L. KAPLAN
Attorneys
JUNE 1999
1 The DPPA was enacted as part of an omnibus crime control law, the Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit.
XXX, § 300002, 108 Stat. 2099. The Subcommittee on Civil and Constitutional
Rights of the House Judiciary Committee held hearings on the DPPA on February
3 and 4, 1994. Those hearings were never printed, and we are informed by
the Clerk of the Judiciary Committee that the Committee no longer has documents
or transcripts relating to the DPPA hearings. The principal prepared submissions
to the Subcommittee are available on WESTLAW. See Protecting Driver Privacy:
Hearings on H.R. 3365 Before the Subcomm. on Civil and Constitutional Rights
of the House Comm. on the Judiciary, 103d Cong., 2d Sess., available at
1994 WL 212813, 212822, 212833, 212834, 212835, 212836, 212696, 212698,
212701, 212712, 212720 (Feb. 3-4, 1994).
2 Representative Moran, a sponsor of the DPPA, observed: "Currently,
in 34 States across the country anyone can walk into a DMV office with your
tag number, pay a small fee, and get your name, address, phone number and
other personal information-no questions asked." 140 Cong. Rec. H2522
(daily ed. Apr. 20, 1994) (statement of Rep. Moran); see also 139 Cong.
Rec. 29,466 (1993) (statement of Sen. Boxer); id. at 29,468 (statement of
Sen. Warner); id. at 29,469 (statement of Sen. Robb); 1994 WL 212834 (Feb.
3, 1994) (statement of Dr. Mary J. Culnan, Georgetown University); 1994
WL 212813 (Feb. 3, 1994) (statement of Janlori Goldman, American Civil Liberties
Union).
3 See, e.g., 1994 WL 212698 (Feb. 4, 1994) (statement of Rep. Moran); 1994
WL 212822 (Feb. 3, 1994) (statement of David Beatty, National Victim Center);
1994 WL 212833 (Feb. 3, 1994) (statement of Donald L. Cahill, Fraternal
Order of Police); 139 Cong. Rec. 29,469 (1993) (statement of Sen. Robb);
id. at 29,470 (statement of Sen. Harkin).
4 A "motor vehicle record" is defined as "any record that
pertains to a motor vehicle operator's permit, motor vehicle title, motor
vehicle registration, or identification card issued by a department of motor
vehicles." 18 U.S.C. 2725(1).
5 The court also suggested that the DPPA would survive constitutional scrutiny
even if it were analyzed under the framework set out in National League
of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985). "[Petitioners']
position would be doubtful even if National League of Cities were resurrected.
The [DPPA] affects the states as operators of databases, not as sovereigns,
and does not interfere with the achievement of any essential state function
or discriminate against the states." Pet. App. 24a; see also id. at
12a (similar).