November 28, 2012 | By Hanni Fakhoury

EFF to U.S. Supreme Court: Limit Release of Driver Info

Everyone hates going to the DMV. But even worse than having to wait in line for hours on end, is to learn that the personal information you provide to the DMV is being used for marketing purposes without your consent. So this month, we told the Supreme Court in an amicus brief that the release of this information needs to be strictly narrowed.

In 1994, Congress passed the Drivers Privacy Protection Act ("DPPA") to specifically protect driver information stored by state DMVs. Under the DPPA, information like your driver's license photo, social security number, or medical and disability information are considered "highly restricted personal information" which can be released by the state for marketing, solicitation and survey purposes only with the express consent of the driver. However, the DPPA has a few exceptions, allowing this information to be released without the consent of the driver to a government agency, an insurer, an employer to verify information about a commercial driver's license and finally in "connection with litigation." It's this last prong that's at issue before the Supreme Court: does the litigation exception to the DPPA include lawyers trying to solicit new clients?

The case before the court involves a group of class action lawyers who were planning to sue a group of local car dealers. The lawyers obtained the names, addresses and car purchase information from people that had purchased cars through the dealers, and then sent letters to those people about the lawsuit they were looking to bring. The car buyers sued, claiming their personal information had been used for mass solicitation without their consent, and in violation of the DPPA. The Fourth Circuit Court of Appeals disagreed, writing that the lawyers behavior was covered under the "litigation" exception to the DPPA -- notwithstanding the DPPA's general prohibition on using driver information for soliciation and marketing materials without the driver's express consent.

As we explain in our amicus brief, allowing lawyers the ability to use the litigation exception to otherwise get around the DPPA's express consent requirement for marketing and solicitation purposes creates a loophole big enough to drive through. The "litigation" exception was intended to allow lawyers to use driver information to serve legal pleadings or subpoenas, and enforce judgment and orders under a court order. It was never intended to turn DMVs into a client grocery store for lawyers.

While at first blush this may all seem mundane, the implications are enormous. With the growth of online data brokers -- like Westlaw and Lexis Nexis -- that aggregate large amounts of information, an initial search for motor vehicle information can reveal a wealth of information about drivers. In fact, with the rapid explosion of license plate scanners, its now easier than ever to piece together a person's pattern of movement with nothing more than a trip to the DMV. The only way to ensure privacy dosesn't drive away in a world where technology can make an enormous amount of detail about a person available with just the click of the mouse, is to ensure that the provisions of law that authorize disclosure are interpreted strictly and narrowly interpreted.

Special thanks to Arlene Fickler and John Timmer of Schnader Harrison Segal & Lewis LLP in Philadelphia for writing our brief.


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