Petition for Writ of Certiorari — Reno v. Pryor

No.

Jn the Supreme Court of the Gnited States

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, AND THE UNITED STATES OF

AMERICA, PETITIONERS

Vv.

BILL PRYOR, ATTORNEY GENERAL FOR THE STATE OF

ALABAMA, AND THE STATE OF ALABAMA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Solicitor General

Counsel of Record

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

constitutional principles of federalism.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 2

Constitutional and statutory provisions involved .................. 2

Statement 2

Reasons for granting the petition 11

Conclusion 11

Appendix A ., la

Appendix B 17a

Appendix C 52a

TABLE OF AUTHORITIES

Cases:

Condon v. Reno, 155 F.3d 453 (4th Cir. 1998),

cert. granted, No. 98-1464 (May 17, 1999) 11

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) 10, 11

New York v. United States, 505 U.S. 144 (1992) .............. 9

Printz v. United States, 521 U.S. 898 (1997) .............cccc00 9

South Carolina v. Baker, 485 U.S. 505 (1988) ............ 9, 10, 11

Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998),

petition for cert. pending, No. 98-1818 ............c.scsssessssseeees 4

Constitution and statutes:

U.S. Const.: ;

Art. I, § 8, Cl. 3 (Commerce Clause) 2, 8,9

Amend. X 2, 8,9, 10, 11

Driver’s Privacy Protection Act of 1994, 18 U.S.C.

2721 (1994 & Supp. III 1997) 52a

18 U.S.C. 2721(a) i 6, 52a

18 U.S.C. 2721(b)(1) 6, 52a

18 U.S.C. 2721(b)(2) 7, 58a

18 U.S.C. 2721(b)(3) 7, 53a

(IIi)

IV

Statutes—Continued: Page

18 U.S.C. 2721(b)(4) ..... 7, 58a

18 U.S.C. 2721(b)(5) ‘a 7, 58a

18 U.S.C. 2721(b)(6) .. isicesheiasaineiiibaiidiidaeait . 7, 54a

18 U.S.C. 2721(b)(7) , 7, 54a

18 U.S.C. 2721(b)(8) 7, 54a

18 U.S.C. 2721(b)(9) (1994 & Supp. TIT 1997) .....ccccsseee 7, 54a

18 U.S.C. 2721(b)(10) .. 7, 54a

Be Cha I seencrisntencininnelissseninsisicnnipnaitimeliisinbaiets 6, 54a

Be Crates SS UNCIED scetiictcisnkeiseenichincitcchmonisenniicasinknesiinain 7, 55a

18 U.S.C. 2721(b)(18) " 6, 55a

18 U.S.C. 2721(b)(14) fate , 7, 55a

18 U.S.C. 2721(¢) sdceebihbibniadiicegianiadianliaadiddeilaadiaes 8, 55a

Be Us Fe wictanitienitininntininnts sidabiesilamitiaiiclin 6, 56a

18 U.S.C. 2722(a) _ siedisialaananadl . 8, 56a

18 U.S.C. 2TZ2AD) .«.....:..0.00000. webinbiabaaelaaiiads 8, 56a

Se Fe IE eiccceitecitninssiseeniceiitinstiniotiaibibalceinitneaidiintian 8, 56a

18 U.S.C. 2723(b) .... sicecwanitssdiindias 8, 56a

18 U.S.C. 2724(a) ...... miles . 8,57a

Fee ee eincetastasaitegidiintasainnniioldanssamaisi . 6, 57a

Be ea NC cessticsicicstdeebnadttnenlbiiilehinsibibaeintaeaieniebibiibdeul 8, 57a

SB TT. BD wits ntiinsitoennctionnrstisnn 6, 58a

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, Tit. XXX, § 300002,

es, UN da coaiiaainedaiieaniaiiadchacasanbaaiianlatabihadiiahaiaaabaaaen 2

BR Ce Fee CTD iciinciesisanieneciciiceheepihiaiiiaaniaastinai 8

Miscellaneous:

189 Cong. Rec. (1993):

AD icitaniiscnssiniieiinaietintaicesnaialiesbiliestansniiiibthiiabiinsitiisneibaiansiinien 3

TI sevcienienapenssiasiinantinnninguniansinniitaiamssiicianinasininiitaieintnnniies 3

p. 29,469 ....... ssssbilaiegiebeihieinan iene caiceads Rania aak dealin 8,5

Wh UNITED srnseilesncpecibdesiicianiteiiisainobienatiti 5

140 Cong. Rec. H2522 (daily ed. Apr. 20, 1994) ....... cesses 3,4

Miscellaneous—Continued: Page

Protecting Driver Privacy: Hearings on H.R. 8865

Before the Subcomm. on Civil and Constitutional

Rights of the House Comm. on the Judiciary,

103d Cong., 2d Sess. (available at 1994 WL 212813):

Feb. 3, 1994:

1994 WL 212813

1994 WL 212822

1994 WL 212833

1994 WL 212834

1994 WL 212835

1994 WL 212836 ....

Feb. 4, 1994:

1994 WL 212696

1994 WL 212698

1994 WL 212701

Se ANTI ciniiisicciinsinehnshasteiasiebiditbdaiusiiaa Nites

1994 WL 212720

PP PPS

m CO om CON CO

wwwan

Jn the Supreme Court of the Gnited States

No.

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, AND THE UNITED STATES OF

AMERICA, PETITIONERS

Vv.

BILL PRYOR, ATTORNEY GENERAL FOR THE STATE OF

ALABAMA, AND THE STATE OF ALABAMA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Attorney

General of the United States and the United States of

America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

16a) is reported at 171 F.3d 1281. The opinion of the

district court (App., infra, 17a-51a) is reported at 998

F.. Supp. 1317.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

April 6, 1999. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Commerce Clause of the United States Con-

stitution, Article I, Section 8, Clause 3, provides: “The

Congress shall have Power * * * To regulate

Commerce * * * among the several States.”

2. The Tenth Amendment to the United States Con-

stitution provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it

to the States, are reserved to the States respectively,

or to the people.”

3. The Driver’s Privacy Protection Act of 1994,

18 U.S.C. 2721-2725 (1994 & Supp. III 1997), is

reprinted in an appendix to this petition (App., infra,

52a-58a).

STATEMENT

1. This case involves a constitutional challenge

brought by the State of Alabama to the Driver’s Pri-

vacy Protection Act of 1994 (DPPA or Act), 18 U.S.C.

2721-2725 (1994 & Supp. III 1997), which restricts

disclosure of personal information from state motor

vehicle records.’ An individual who seeks a driver’s

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 Sub-

committee on Civil and Constitutional Rights of the House Judici-

ary 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

3

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.” 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 212818 (Feb. 3, 1994) (statement of Janlori

Goldman, American Civil Liberties Union). The

longer has documents or transcripts relating to the DPPA hear-

ings. The principal prepared submissions to the Subcommittee are

available on WESTLAW. See Protecting Driver Privacy: Hear-

ings on H.R. 3365 Before the Subcomm. on Civil and Consti-

tutional 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);

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).

4

Wisconsin Department of Transportation receives

about $8 million each year from its sale of motor vehicle

information. See Travis v. Reno, 163 F.3d 1000, 1002

(7th Cir. 1998), petition for cert. pending, No. 98-1818.

The personal information sold by DMVs is also used

extensively to support the marketing efforts of cor-

porations 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 in-

formation from other sources and used to create lists

for selective marketing use by businesses, charities,

and political candidates.” Jbid. See also 1994 WL

212834 (Feb. 3, 1994) (statement of Dr. Mary J. Culnan,

Georgetown University) (describing use of DMV infor-

mation by direct marketers).

The highly publicized 1989 murder of actress Rebecca

Schaeffer brought to light the potential threat to pri-

vacy and safety posed by this commerce in motor ve-

hicle 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 obtain 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 the incident in-

volving Rebecca Schaeffer was similar to many other

crimes in which stalkers, rebbers, and assailants had

5

used state motor vehicle records to locate, threaten,

and harm victims.”

Moreover, Congress received evidence indicating

that a national solution was warranted to address the

problem of potentially dangerous disclosures of per-

sonal 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 ad-

vances 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.” Jbid. 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

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).

6

“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 infor-

mation “that identifies an individual, including an in-

dividual’s photograph, social security number, driver

identification number, name, address (but not the 5-

digit zip code), telephone number, and medical or dis-

ability 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)(18).

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.

“721(b)(1). It also expressly permits DMVs to disclose

+ A “motor vehicle record” is defined as “any record that per-

tains to a motor vehicle operator’s permit, motor vehicle title,

motor vehicle registration, or identification card issued by a de-

partment of motor vehicles.” 18 U.S.C. 2725(1).

\ 7

personal information for any state-authorized purpose

“relat[ing] 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 ac-

curacy of personal information submitted to that busi-

ness, 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 under-

writing, 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 com-

mercial driver’s license, 18 U.S.C. 2721(b)(9) (1994 &

Supp. III 1997); for use in connection with private toll-

ways, 18 U.S.C. 2721(b)(10); and in certain circum-

stances 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 « matter of federal law,

the resale and redisclosure of personal information

8

obtained from state DMVs, 18 U.S.C. 2721(c) (1994 &

Supp. III 1997), and prohibits any person from know-

ingly 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 them-

selves to regulate the private use of information ob-

tained under the Act or to pursue legal remedies

against any requester who obtains or uses information

in violation of the Act.

3. Alabama law provides that “[e]very citizen has a

right to inspect and make a copy of any public writing

of this state, except as otherwise expressly provided by

statute.” Ala. Code § 36-12-40 (1975). Respondents, an

officer and an agency of the State of Alabama, filed suit

in federal district court, alleging that the DPPA is not a

valid exercise of Congress’s‘-Commerce Clause powers,

and that the statute violates the Tenth Amendment.

Respondents sought to enjoin enforcement of the Act.

9

The district court granted summary judgment for the

federal government. App., infra, 17a-5la. The court

held first that the DPPA is a valid exercise of

Congress’s power to regulate commerce. I/d. at 32a-34a.

It rejected the State’s contention that the Commerce

Clause inquiry should turn on whether Alabama made a

profit on its sales of motor vehicle information. The

court explained that evidence before Congress showed

that, “once released, personal DMV information is often

used in direct marketing campaigns or resold by

database-compiling companies to other companies for

use in direct-marketing campaigns,” id. at 33a, and that

direct marketing is a national industry, ibid. Thus, the

court observed, Congress had a rational basis for

concluding that the disclosure of such information

“substantially impacts the national trade of DMV

records.” Jd. at 33a-34a.

The court also rejected (App., infra, 40a) respon-

dents’ claim that the DPPA contravenes the Tenth

Amendment, as construed by this Court in New York v.

United States, 505 U.S. 144 (1992), and Printz v. United

States, 521 U.S. 898 (1997). Rather, the court con-

cluded, the DPPA is analogous to the statute found

constitutional in South Carolina v. Baker, 485 U.S. 505

(1988), which upheld a federal statute that effectively

required the States to issue registered bonds, rather

than bearer bonds. App., infra, 40a-4la. The court

noted that the DPPA, “like the statue at issue in South

Carolina v. Baker, is one which directly regulates the

states, rather than requires the states to administer or

enforce a federal regulation. This distinguishes the

DPPA from the provisions at issue in New York and

Printz—both of which the Court found required States

to regulate certain activity according to the instruction

of Congress.” App., infra, 42a.

10

4. The court of appeals reversed. App., infra, la-

16a. Although the court questioned (id. at 6a-7a)

whether the DPPA falls within Congress’s commerce

powers, it did not resolve that issue. Rather, it held

that the Act violates the Tenth Amendment. /d. at

7a-16a.

The court acknowledged that “the DPPA does not

compel Alabama to enact legislation as in New York;

nor does it conscript state officers to help the federal

government search for potential violations of federal

law as in Printz.” App., infra, 9a. The court nonethe-

less found it significant that the DPPA “does establish a

detailed set of rules under which Alabama’s disclosure

or refusal to disclose to third parties the personal in-

formation in its motor vehicle records shall be done as

the federal establishment wishes it to be done.” Jbid.

Further, the court reasoned, “[sltate officers are

directed to administer and enforce those rules. * * *

In complying with the Act, state officers must review

requests for information to determine whether the

request is for a permissible use.” Jd. at 10a. And

because the Act “contains no explicit instructions re-

garding the extent to which the state officer must

investigate and confirm the accuracy of the claims made

by individuals requesting the information[, in] review-

ing requests and interpreting the rules, state officers

will be acting as federal agents making federal policy.” ~

Ibid.

The court also acknowledged that, under Garcia v.

San Antonio Metropolitan Transit Authority, 469 U.S.

528 (1985), and South Carolina v. Baker, supra, “Con-

gress may require the States to comply with federal

regulation of an activity affecting interstate commerce

when the States choose to engage in that activity.”

App., infra, lla. The court held, however, that the

1]

DPPA cannot be upheld under those decisions because

the Act is not a law of “general applicability” like the

statutes upheld in Garcia and Baker; rather, the DPPA

is “targeted exclusively at States.” bid. “Only States

collect driver’s license and motor vehicle information.

This is an exercise of sovereignty,” and therefore, the

court concluded, shielded by the Tenth Amendment

from Congress’s power to regulate. Jd. at 15a.

REASONS FOR GRANTING THE PETITION

The question presented in this petition 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 Court’s

decision in Condon.

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

JULY 1999

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-6261

D.C. Docket No. CV-98-D-1396-N

BILL PRYOR, ATTORNEY GENERAL FOR THE STATE

OF ALABAMA, STATE OF ALABAMA,

PLAINTIFFS-APPELLANTS

versus

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES,

UNITED STATES OF AMERICA,

DEFENDANTS-APPELLEES

Appeal from the United States District Court

for the Middle District of Alabama

[Filed: April 6, 1999]

Before: TJOFLAT, Circuit Judge, and GODBOLD and

HILL, Senior Circuit Judges.

HILL, Senior Circuit Judge:

Plaintiffs, Bill Pryor, Attorney General for the State

of Alabama, and the State of Alabama (referred to col-

lectively as Alabama or “the State”), sought a declara-

tory judgment that the Driver’s Privacy Protection Act

of 1994, 18 U.S.C. §§ 2721-25, is unconstitutional under

(la)

2a

both the Tenth and Eleventh Amendments to the

United States Constitution, and an injunction prohibit-

ing the defendants Janet Reno and the United States

from enforcing the Act in whole or in part. The district

court entered summary judgment for the United

States, from which Alabama appeals.

I.

The Driver’s Privacy and Protection Act of 1994

(“DPPA” or “the Act”), 18 U.S.C. §§ 2721, et seq.,

regulates the sale, dissemination and use by the State

and private individuals of personal information’ con-

tained in the State’s motor vehicle records.” The Act

prohibits “a State department of motor vehicles, and

any officer, employee, or contractor, 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). It

makes it unlawful for a State department of motor

vehicles [DMV], and any officer, employee, or contrac-

tor thereof, to knowingly disclose or otherwise make

available personal DMV information for any purpose

! Section 2725(3) of the Act defines personal information as:

information that identifies an individual, including an indi-

vidual’s photograph, social security number, driver identifi-

cation number, name, address (but not the five-digit zip

code), telephone number, and medical or disability informa-

tion, but does not include information on vehicular accident,

driving violations, and driver’s status.

* Section 2725(1) of the Act defines a “motor vehicle record” as:

any record that pertains to a motor vehicle operator’s per-

mit, motor vehicle title, motor vehicle registration, or iden-

tification card issued by a department of motor vehicles.

3a

other than a “permissible use.” 18 U.S.C. § 2721(b).

State departments of motor vehicles with a “policy or

practice of substantial noncompliance” with the Act’s

provisions are subject to a civil penalty of up to $5,000 a

day for each day of substantial noncompliance, to be

imposed by the United States Attorney General.

18 U.S.C. § 2723(b). Persons who knowingly violate the

Act are subject to criminal fines. 18 U.S.C. § 2723(a).

Reversing course, the Act then allows disclosure of

personal information in abundant circumstances.

18 U.S.C. § 2721(b). For example, the Act requires that

such information be disclosed for use in matters of

motor vehicle or driver safety and theft, motor vehicle

emissions, motor vehicle product alterations, recalls, or

advisories, performance monitoring of motor vehicles

and dealers by motor vehicle manufacturers, and re-

moval of non-owner records from the original owner

records of motor vehicle manufacturers to carry out the

purposes of titles I and IV of the Anti Car Theft Act of

1992, the Automobile Information Disclosure Act, the

Clean Air Act, and chapters 301, 305, and 321-331 of

title 49. 18 U.S.C. § 2721(b) (citations omitted). It fur-

ther provides that personal information may be dis-

closed for use by any government agency in carrying

out its functions, id. § 2721(b)(1); in connection with car

or driver safety, theft and other motor-vehicle related

matters, id. § 2721(b)(2); for use in the normal course of

business by a legitimate business in certain instances,

id. 2721(b)(3); for use in connection with any civil,

criminal, administrative or arbitral proceedings in any

Federal, State, or local court or agency or before any

self-regulatory body, id. § 2721(b)(4); for use in research

activities, and for use in producing statistical reports, so

long as the personal information is not published, redis-

4a

closed, or used to contact individuals, id. § 2721(b)(5);

for use by an insurer or insurance support organization,

or by a self-insured entity, or its agents, employees, or

contractors, in connection with claims investigation ac-

tivities, anti-fraud activities, rating or underwriting, id.

§ 2721(b)(6); for use in providing notice to owners of

towed or impounded vehicles, id. § 2721(b)(7); for use by

a licensed private investigative agency or licensed secu-"

rity service for any purpose permitted under the Act,

id. § 2721(b)(8); for use by an employer or its agent or

insurer to obtain or verify required information relating

to a holder of a commercial driver’s license, id.

§ 27221(b)(9); and for use in connection with the op-

eration of private toll transportation facilities, id.

§ 2721(b)(10).

The DPPA also regulates private individuals’ sale or

disclosure of the above information. The Act prohibits

authorized recipients of personal DMV information

from reselling or redisclosing personal information for a

use which the State could not have disclosed it in the

first place. 18 U.S.C. § 2721(c); 18 U.S.C. § 2722(a).

The Act requires that individuals reselling or redisclos-

ing personal information for a permissible use keep

records for five years stating to whom they have resold

or redisclosed the information and the purpose of any

such release, and must make these records available to

the state department of motor vehicles upon request.

18 U.S.C. § 2721(c). The Act also bars any person from

knowingly obtaining personal DMV information for any

unauthorized use, 18 U.S.C. § 2722(a), and from obtain-

ing personal information “by false representation,”

18 U.S.C. § 2722(b). Individuals who knowingly violate

these provisions are subject to criminal fines, 18 U.S.C.

§ 2723(a), and private rights of action by the person to

\ 5a

whom the personal information pertains. 18 U.S.C.

§ 2724.

In addition to the exceptions noted above, the Act

allows States to establish waiver procedures to handle

requests for disclosures that do not fall within these

exceptions. 18 U.S.C. § 2721(d). The DPPA allows

States to release personal information for any use not

included in the Act’s list of permissible uses, if the

motor vehicle department provides individuals an

opportunity to prohibit such disclosure. 18 U.S.C.

§ 2721(b)(11). Also, departments of motor vehicles are

permitted to release personal information for “bulk

distribution” for surveys, marketing or solicitations if

individuals have an opportunity to prohibit such disclo-

sures. 18 U.S.C. § 2721(b)(12).

Alabama contends that Congress exceeded its au-

thority under the Tenth and Eleventh Amendments

when it enacted the DPPA. The State contends that

the DPPA is an unconstitutional federal directive re-

quiring it to administer a federal program in violation of

the Tenth Amendment. The State further contends

that the penalties imposed by the Act for noncompli-

ance violate the Eleventh Amendment. The United

States counters that the Act is a constitutional exercise

of Congress’ power under the Commerce Clause of the

United States Constitution to regulate and control the

dissemination of personal information in state DMV

records in order to protect the privacy and safety of

individuals. On cross-motions for summary judgment,”

the district court held that the Act is a valid exercise of

3 The United States’ motion was for dismissal which the district

court construed as a motion for summary judgment pursuant to

Rule 12(b), Fed.R.Civ.P.

6a

Congress’ authority to regulate interstate commerce,

and that it violates neither the Tenth nor the Eleventh

Amendment. Alabama appeals from the entry of this

judgment.

II.

Alabama asserts that the DPPA violates the Tenth

Amendment in two ways. First, Alabama contends that

the Commerce Clause does not authorize Congress to

invade the Tenth Amendment by regulating the States’

dissemination of motor vehicle information. Second,

Alabama contends that the Tenth Amendment prohib-

its Congress from requiring it to administer a federal

program.

A. Congress’ Authority to Enact the DPPA

Alabama argues that Congress exceeded its au-

thority in regulating the States’ release of motor

vehicle information because the dissemination of this

information is neither commerce, nor an activity sub-

stantially affecting commerce. Although it is abun-

dantly clear that trafficking in data bases is an activity

that substantially affects interstate commerce these

days, we are, nonetheless, sympathetic to this argu-

ment. Congress drew its authority to regulate this

activity from its nexus to interstate commerce, and

then proceeded to exempt from the reach of the Act

virtually all its interstate connections.

It is clear that Congress sought by this Act to protect

the public from “stalkers” who might use motor vehicle

information to locate their victims.*. In trying to protect

4 During floor debate on the Senate version of the Act, Sena-

tors invoked the example of Rebecca Shaeffer, an actress from

California, who was murdered by an obsessed fan who cbtained

Ta

legitimate governmental and business uses of such

information, however, Congress riddled the Act with

more holes than Swiss cheese. Through these holes

escaped most of the interstate commerce activity

covered by the Act. Thus, Congress claims its au-

thority to regulate the States’ dissemination of personal

DMV information lies in its power to regulate the

commercial aspect of this information which it then

proceeded to exclude from the Act.

We shall not resolve this troublesome issue, however,

because we are persuaded that even if there is a suffi-

cient connection between this legislation and interstate

commerce to authorize Congress to enact the DPPA,

the Act violates the Tenth Amendment.

B. The DPPA and the Tenth Amendment

The Supreme Court has recently made clear that the

federal government may not command the States to

administer or enforce a federal regulatory program.

Printz v. United States, 521 U.S. 98, 117 S. Ct. 2365,

2384 (1997); New York v. United States, 505 U.S. 144,

176-77, 112 S. Ct. 2408 (1992). In New York, the Su-

preme Court addressed the constitutionality of the

Low-Level Radioactive Waste Policy Act which re-

quired States to choose between accepting ownership of

radioactive waste generated within their borders and

regulating this waste according to instructions from

Congress. 505 U.S. at 152. The Court found that this

her address from the department of motor vehicles through a pri-

vate investigator. See 139 Cong. Rec. $15,766, Comments of Sena-

tor Harkin. See also (Feb. 4, 1994) (statement of Rep. Moran): 139

Cong. Rec. $15,762 (Nov. 16, 1993) (statement of Sen. Boxer); 139

Cong. Rec. $15,765 (Nov. 16, 1993) (statement of Sen. Robb); 139

Cong. Rec. $15,765 (statement of Sen. Biden).

8a

provision “commandeers the legislative processes of the

States by directly compelling them to enact and enforce

a federal regulatory program,” in violation of the Tenth

Amendment. /d. at 176. In Printz, the Court extended

the holding of New York to recognize that the Tenth

Amendment protects state officers, as well as States,

from federal commandeering. In Printz, the Court held

unconstitutional provisions of the Brady Handgun

Violence Prevention Act which imposed interim re-

quirements on State chief law enforcement officers

(“CLEOs”) to conduct background checks on prospec-

tive handgun purchasers and to perform related tasks.

1175S. Ct. at 2868. The Act required CLEOs to:

make a reasonable effort to ascertain within 5

business days whether receipt or possession [of a

firearm by a particular purchaser] would be in

- violation of the law, including research in whatever

state and local record keeping systems are

available.

Id. at 2369 (quoting 18 U.S.C. § 922(s)(2)). The Court

characterized this provision as one directing or forcing

state law enforcement officers to participate in the

administration of a federally enacted regulatory

scheme. Jd. at 2369, 2376. The Court held the require-

ment violated the Tenth Amendment because:

[t]he Federal Government may neither issue direc-

tives requiring the States to address particular

problems, nor command the States’ officers, or

those of their political subdivisions, to administer

or enforce a federal regulatory program. It mat-

ters not whether policymaking is involved, and no

case-by-case weighing of burdens or benefits is

necessary; such commands are fundamentally

9a

incompatible with our constitutional system of dual

sovereignty.

Id. at 2384.

Although New York and Printz make clear that

federal law may not direct state officials to administer

or enforce a federal regulatory scheme, they are less

helpful in identifying the attributes of such a law. We

recognize that the DPPA does not compel Alabama to

enact legislation as in New York; nor does it conscript

state officers to help the federal government search for

potential violations of federal law as in Printz.

Nevertheless, the DPPA does establish a detailed set

of rules under which Alabama’s disclosure or refusal to

disclose to third parties the personal information in its

motor vehicle records shall be done as the federal

establishment wishes it to be done. The Act requires

that department of motor vehicle officers disclose

personal information contained in its motor vehicle

records for use in connection with matters of motor

vehicle or driver safety and theft and to carry out

various federal statutes.’ It further provides that per-

sonal information may be disclosed in fourteen other

circumstances. It seeks to regulate the circumstances

under which private individuals may obtain this infor-

mation and to prevent the disclosure at all in certain

instances. No one disputes that Congress, through the

DPPA, has enacted a federal regulatory program to

control the dissemination and cloaking of the States’

motor vehicle information.

5 This requirement nullifies the United States’ argument that

the Act does not command the States to do anything because the

States may simply opt out of this legislation by deciding to close

their DMV records completely.

10a

Furthermore, the Act is neither self-administering

nor self-enforcing. State officers are directed to

administer and enforce these rules. They must insure

that protected information is disclosed only for the

designated purposes specified by the federal rules. In

complying with the Act, state officers must review

requests for information to determine whether the

request is for a permissible use. The Act contains no

explicit instructions regarding the extent to which the

state officer must investigate and confirm the accuracy

of the claims made by individuals requesting the

information. In reviewing requests and interpreting

the rules, state officers will be acting as federal agents

making federal policy. See Printz, 117 S. Ct. at 2880-81.

Thus, we conclude the DPPA is a federal regulatory

program which Congress has directed state officers

to-administer. Congress may not enlist state officers

in this way. Printz, 117 8. Ct. at 2380. As the Court

stated in New York:

States are not mere political subdivisions of the

United States. State governments are neither re-

gional offices nor administrative agencies of the

Federal Government. The positions occupied by

state officials appear nowhere on the Federal Gov-

ernment’s most detailed organizational chart.

505 US. at 188.

The United States argues that it is permissible for

Congress to command state officers to assist in the

implementation of federal law so long as Congress itself

devises a clear legislative program that regulates the

States directly rather than requiring them to regulate

third parties. The DPPA, it is said, is constitutional

because it directly regulates state activities and neither

lla

directs the States or their officials to regulate their

citizens, nor to construct any regulatory regime.

We disagree. To be sure, Congress may require the

States to comply with federal regulation of an activity

affecting interstate commerce when the States choose

to engage in that activity.° Thus, the States as employ-

ers must comply with the federal minimum wage law.

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528 (1985). See also South Carolina v. Baker,

485 U.S. 505, 511-15 (1988) (States may be required to

issue bonds in registered form as are private corpora-

tions); United Transp. Union v. Long Island R. Co., 455

U.S. 678 (1982) (labor laws apply to state-owned

railroads); Fry v. United States, 421 U.S. 542 (1975)

(States are bound by generally applicable wage and

price controls).

But all of these cases are examples of when a particu-

larly strong federal interest permits Congress to bring

state governments within the orbit of generally applica-

ble federal regulation. Garcia, 469 U.S. at 554 (“San

Antonio faces nothing more than the same minimum-

wage and overtime obligations that hundreds of thou-

sands of other employers, public as well as private,

have to meet”). In Printz and New York, the Supreme

Court. distinguished such laws of general app. cability

from laws targeted exclusively at States. 11758. Ct. at

2383; 505 U.S. at 160. Although the Tenth Amendment

6 In fact, Congress may totally occupy a field of regulation of

interstate commerce but permit continued state regulation of the

activity so long as a State meets certain preconditions. The DPPA

does not, however, preempt the field of licensing drivers. Nor does

it impose preconditions to the States’ continued regulation of a

totally preempted field. It seeks only to direct the States in that

regulation.

12a

does not automatically permit the former and proscribe

the latter, in the cases cited above the issue was

whether the incidental application to the States of fed-

eral laws of general applicability excessively interfered

with the functioning of state governments. The federal

laws at issue were upheld because the federal interest

was strong enough to permit Congress to bring state

governments within the orbit of generally applicable

federal regulation.

The Court has made clear, however, that where, as

here, the “whole object of the law [is] to direct the

functioning of the state executive, and hence to compro-

mise the structural framework of dual sovereignty,

such a ‘balancing’ analysis is inappropriate.” 117 S. Ct.

at 2383. See also New York, 505 U.S. at 160 (radioac-

tive waste statute unconstitutional because the “[take

title] provision is inconsistent with the federal struc-

ture of our Government established by the Constitu-

tion”). Instead of bringing the States within the scope

of an otherwise generally applicable law, Congress

passed the DPPA specifically to regulate the States’

control of the States’ own property—the motor vehicle

records. “It is the very principle of separate state sov-

ereignty that such a law offends, and no comparative

assessment of the various interests can overcome that

fundamental defect.” Printz, 117 S. Ct. at 2383.’

7 The United States suggests that the DPPA is generally

applicable when considered in the context of other federal laws

which regulate the dissemination of personal information, such as

the Video Privacy Protection Act, 18 U.S.C. § 2710 (restricting

disclosure of personal information contained in video rental

records) and the Cable Communications Policy Act, 47 U.S.C. § 551

(restricting disclosure of personal information about cable sub-

scribers). Even if a statute could be considered generally applica-

ble because it is part of some sort of scheme of regulation,

13a

It is not state power that the principle of state

sovereignty protects. When States are forced to ad-

minister federal programs, a fundamental attribute of

State sovereignty is threatened: democratic account-

ability. It is this basic principle upon which the Su-

preme Court rested its holdings in New York and

Printz:

By forcing state governments to absorb the finan-

cial burden of implementing a federal regulatory

program, Members of Congress can take credit for

“solving” problems without having to ask their

constituents to pay for the solutions with higher

federal taxes. And even when the States are not

forced to absorb the costs of implementing a federal

program, they are still put in the position of taking

the blame for its burdensomeness and for its

defects. . . . Under the present law, for example,

it will be the CLEO and not some federal official

who stands between the gun purchaser and imme-

diate possession of his gun. And it will likely be the

CLEO, sot some federal official, who will be

blamed for any error (even one in the designated

federal database) that causes a purchaser to be

mistakenly rejected.

117 S. Ct. 2365. The Court also observed in New York:

Congress has thus far regulated the disclosure of personal

information by holders of databases only in a piecemeal fashion.

There is no generally applicable Congressional regulation of the

disclosure of such information even if all such laws are considered

part of such a scheme. Thus, there is no generally applicable

Congressional regulation of this activity of which the DPPA is a

part.

l4a

But where the Federal Government directs the

States to regulate, it may be state officials who will

be the brunt of public disapproval, while the federal

officials who devised the regulatory program may

remain insulated from the electoral ramifications of

their decision. Accountability is thus diminished

when, due to federal coercion, elected state officials

cannot regulate in accordance with the views of the

local electorate in matters not pre-empted by

federal regulation.

505 U.S. at 169 (citations omitted). Thus, when Con-

gress requires the States to administer a federal pro-

gram, democratic accountability is diminished and for

this reason the Tenth Amendment is offended.

This Act cannot be saved by the argument that it

simply regulates a realm of national economic

activity—the buying and selling of personal

information—whether or not the economic actors

happen to be State or citizens.’ The DPPA is not a law

8 A similar argument was made in Printz that the burden on

officers of the state would be permissible if a similar burden were

also imposed on private parties with access to relevant data. The

Court rejected this argument by noting:

The Brady Act does not merely require CLEOs to report

information in their private possession. it requires them to

provide information that belongs to the State and is

available to them only in their official capacity; and to

conduct investigations in their official capacity, by examin-

ing databases and records that only state officials have

access to. In other words, the suggestion that extension of

this statute to private citizens would eliminate the constitu-

tional problem posits the impossible.

1175S. Ct. at 2383.

15a

of general applicability.’ Only States collect driver’s

license and motor vehicle information. This is an exer-

cise of sovereignty. See Peel v. Florida Dept. of

Transp., 600 F.2d 1070, 1083 (5th Cir. 1979) (“Oversee-

ing the transportation system of the state has tradition-

ally been one of the functions of state government, and

thus appears to be within the activities protected by

the tenth amendment”); United States v. Best, 573 F.2d

1095, 1103 (9th Cir. 1978) (“(T]here is little question

that the licensing of drivers constitutes ‘an integral

portion of those governmental services which the

States and their political subdivisions have traditionally

afforded their citizens’”’).

Thus, we conclude that the DPPA is a federal pro-

gram which Congress has commanded the States to

administer. As such, it offends the Tenth Amend-

ment.” Accord Condon v. Reno, 155 F.3d 453 (4th Cir.

9 Although the Act restricts the way in which private parties

who obtain personal information from a motor vehicle department

may resell or redisclose such information, the Act’s applicability to

private parties is incidental to its foremost purpose: regulating the

way in which state disseminate information collected by their

motor vehicle divisions.

10 We find no merit in the United States’ contention that the

Act is a valid exercise of Congress’ power to enforce the Four-

teenth Amendment. U.S. Const. amend. XIV, §§ 1, 5. Whether

Congress properly exercised its power under Section 5 in enacting

the DPPA depends upon whether the Act enforces some right

guaranteed by the Fourteenth Amendment. According to the

United States, we have held that there is a “right to confidential-

ity” in the sort of personal information protected by the DPPA.

We disagree. For example, in one of the cases cited by the United

States, James v. City of Douglas, 941 F.2d 1539, 1544 (11th Cir.

1991), we acknowledged a constitutional right to privacy only for

intimate personal information given to a state official in con-

fidence. Because information contained in motor vehicle records is

16a

1998). But see Travis v. Reno, 163 F.3d 1000 (7th Cir.

1998); Oklahoma v. United States, 161 F.3d 1266 (10th

Cir. 1998).

III.

The judgment of the district court is hereby

REVERSED, and the case is REMANDED. The district

court shall grant Alabama’s motion for an injunction

against the enforcement of the DPPA.

not this sort of information, an individual does not have a reason-

able expectation that the information is confidential. Thus, there is

no constitutional right to privacy in motor vehicle record informa-

tion which the DPPA enforces.

We do not reach the Eleventh Amendment issue involving the

constitutionality of the fines provided for by the DPPA because we

hold the Act unconstitutional under the Tenth Amendment.

17a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action No. 97-D-1396-N

BILL PRYOR, ATTORNEY GENERAL

FOR THE STATE OF ALABAMA,

AND THE STATE OF ALABAMA, PLAINTIFFS

Vv.

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, AND THE UNITED STATES OF

AMERICA, DEFENDANTS

[Filed: Mar. 13, 1998]

MEMORANDUM OPINION AND ORDER

On September 18, 1997, Plaintiffs Bill Pryor, Attor-

ney General for the State of Alabama, and the State of

Alabama (referred to collectively as “Plaintiffs,” “Ala-

bama” and “the State”) filed this action, seeking (1) a

declaratory judgment that the Driver’s Privacy Protec-

tion Act of 1994, 18 U.S.C. §§ 2721-25, is unconstitu-

tional under the Tenth and Eleventh Amendments to

the United States Constitution, and (2) a preliminary

and permanent injunction prohibiting Defendants Janet

Reno and the United States (referred to collectively as

“Defendants” and “the United States”) from enforcing

18a

the Act in whole or in part.’ Plaintiffs filed a Motion for

Summary Judgment on December 22, 1997. Defendants

filed a Motion to Dismiss on January 5, 1998, which,

pursuant to Fed. R. Civ. P. 12(b), the court construes as

a Motion for Summary Judgment, as well.’

1 On December 17, 1997, Plaintiffs filed an Amended Complaint

and Motion for Preliminary Injunction.

2 Rule 12(b) states that, if, on a motion to dismiss for failure to

state a claim upon which relief can be granted, “matters outside

the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed

of as provided in Rule 56, and all parties shall be given reasonable

opportunity to present all material made pertinent to such a

motion by Rule 56.” Fed. R. Civ. P. 12(b).

Defendants filed a Memorandum in Support of Motion to

Dismiss and Opposition to Plaintiff's Motion for Summary Judg-

ment on January 5, 1998, wherein Defendants included citations to

excerpts of Congressional testimony. Plaintiffs filed a Response to

Defendants’ Motion to Dismiss on January 20, 1998. Defendants

filed a Reply to Plaintiffs’ Response on January 27, 1998. Further,

Plaintiffs filed a Brief in Support of their Motion for Summary

Judgment on December 23, 1997, to which Defendants’ January 5,

1998 Memorandum also replied. As Plaintiffs’ own Motion for

Summary Judgment refutes the contentions asserted in Defen-

dants’ Motion to Dismiss, the court finds that Plaintiffs have had a

“reasonable opportunity” to present all material pertinent to De-

fendants’ Motion to construe it as a Motion for Summary

Judgment. Fed. R. Civ. P. 12(b).

In addition, Defendants filed an Opposition to Plaintiffs’ Motion

for a Preliminary Injunction on January 5, 1998. On December 19,

1997, the court entered an Order setting a hearing on Plaintiffs’

Motion for Preliminary Injunction for February 13, 1998. The

court further Ordered a briefing schedule on Plaintiffs’ Motion.

Plaintiffs filed a Brief in Support of Plaintiffs’ Motion for a

Preliminary Injunction on January 20, 1998. Defendants filed a

Response to Issues Raised in Plaintiffs’ Reply in Support of Motion

for Preliminary Injunction on January 27, 1998. On February 9,

1998, the court, having been fully briefed on the matters pending in

19a

After careful consideration of the arguments of

counsel, the relevant law and the record as a whole, the

court finds that Plaintiffs’ Motion for Summary Judg-

ment is due to be denied, and Defendants’ Motion for

Summary Judgment is due to be granted. Accordingly,

Plaintiffs’ Motion for Preliminary Injunction is due to

be denied as moot. This Memorandum Opinion and

Order disposes of all matters before the court.*

BACKGROUND

The Driver’s Privacy and Protection Act of 1994

(“DPPA” or “the Act”), 18 U.S.C. §§ 2721, et seq., regu-

lates the sale, dissemination and use by the State and

private individuals of personal information contained in

State motor vehicle records.‘ The Act prohibits “a

Plaintiffs’ Motion for Preliminary Injunction; entered an Order

canceling the Hearing set for February 13, 1998.

3 The elements of a permanent injunction and a preliminary

injunction are similar, the sole exception being that the movant

must actually prevail, as opposed to showing a likelihood of success

on the merits, in order to receive a permanent injunction. See e.g.,

Statewide Detective Agency v. Miller, 115 F.3d 904, 905 (11th Cir.

1997); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d

1352, 1354-55 (11th Cir. 1983). Having been extensively briefed on

the merits of all relevant issues, the court properly resolves the

merits of this action.

4 The statute defines a “motor vehicle record” as:

any record that pertains to a motor vehicle operator’s per-

mit, motor vehicle title, motor vehicle registration, or iden-

tification card issued by a department of motor vehicles.

18 U.S.C. § 2725(1).

The DPPA defines “personal information” as:

information that identifies an individual, including an indi-

vidual’s photograph, social security number, driver identifi-

cation number, name, address (but not the five-digit zip

code), telephone number, and medical or disability informa-

20a

State department of motor vehicles, and any officer,

employee, or contractor, thereof, [from] knowingly dis-

clos[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). It makes it unlaw-

ful for a State department of motor vehicles, and any

officer, employee, or contractor thereof, to knowingly

disclose or otherwise make available personal DMV

information for any purpose other than a “permissible

use.” 18 U.S.C. § 2721(b).’ State departments of motor

tion, but does not include information on vehicular acci-

dents, driving violations, and driver’s status.

18 U.S.C. § 2725(38).

5 The Act allows for the disclosure of personal information in

abundant circumstances. 18 U.S.C. § 2721(b). For example, such

information may be disclosed for use by any government agency in

carrying out its functions, id. § 2721(b)(1); in connection with car or

driver safety, theft and other motor-vehicle related matters, id.

§ 2721(b)(2); for use in the normal course of business by a

legitimate business in certain instances, id. § 2721(b)(3); for use in

connection with any civil, criminal, administrative or arbitral

proceedings in any Federal, State, or local court or agency or

before any self- regulatory body, id. § 2721(b)(4); for use in

research activities, and for use in producing statistical reports, so

long as the personal information is not published, redisclosed, or

used to contact individuals, id. § 2721(b)(5); for use by an insurer or

insurance support organization, or by a self-insured entity, or its

agents, employees, or contractors, in connection with claims

investigation activities, antifraud activities, rating or underwrit-

ing, id. § 2721(b)(6); for use in providing notice to owners of towed

or impounded vehicles, id. § 2721(b)(7); for use by any licensed

private investigative agency or licensed security service for any

purpose permitted under the Act, id. § 2721(b)(8); for use by an

employer or its agent or insurer to obtain or verify required

information relating to a holder of a commercial driver’s license, id.

y 2la

vehicles with a “policy or practice of substantial non-

compliance” with the Act’s provisions are subject to a

civil penalty of up to $5,000 a day for each day of sub-

’ stantial noncompliance, to be imposed by the United

States Attorney General. 18 U.S.C. § 2723(b). Persons

who knowingly violate the Act are subject to criminal

fines. 18 U.S.C. § 2723(a).

The DPPA also regulates private individuals’ sale or

disclosure of the above information. The Act prohibits

authorized recipients of personal DMV information

from reselling or redisclosing personal information for a

use for which the state could not have disclosed it in the

first place. 18 U.S.C. § 2721(c); 18 U.S.C. § 2722(a). The

Act requires that individuals reselling or redisclosing

personal information for a permissible use keep records

for five years stating to whom they have resold or

redisclosed the information and the purpose of any such

release, and must make these records available to the

state department of motor vehicles upon request.

18 U.S.C. § 2721(c). Furthermore, the Act bars any

person from knowingly obtaining personal DMV infor-

mation for any unauthorized use, 18 U.S.C. § 2722(a),

and from obtaining personal information “by false rep-

resentation,” 18 U.S.C. § 2722(b). Individuals who

knowingly violate these provisions are subject to

criminal fines, 18 U.S.C. § 2723(a), and private rights of

action by the person to whom the personal information

pertains. 18 U.S.C. § 2724.

The Act does permit disclosure or use of personal

DMV information in several contexts, 18 U.S.C.

§ 2721(b)(1)-(14), and allows states to establish waiver

§ 2721(b)(9); and for use in connection with the operation of private

toll transportation facilities, id. § 2721(b)(10).

22a

procedures to handle requests for disclosures that do

not fall within these exceptions. 18 U.S.C. § 2721(d).

The DPPA allows states to release personal informa-

tion for any use not included in the Act’s list of per-

missible uses, if the motor vehicle department provides

individuals an opportunity to prohibit such disclosure.

18 U.S.C. § 2721(b)(11). Also, departments of motor

vehicles are permitted to release personal information

for “bulk distribution” for surveys, marketing or so-

licitations if individuals have an opportunity to prohibit

such disclosures. 18 U.S.C. § 2721(b)(12).

According to Defendants, Congress’s purpose in en-

acting the DPPA was two-fold. First, Congress en-

acted the DPPA as a means of regulating the sale of

personal DMV records for use in direct marketing, as

numerous states sell or give personal information to

data-base compilers, who use it in compiling targeted

mailing lists sold or rented to direct marketers and

individual companies to target customers nationwide.

(Defs.’ Mem. in Supp. Mot. to Dis. and in Opp. to Pls.’

Mot. for Summ. J. (“Defs.’ Mem. in Supp.”) at 3-4.) As

Defendants note, in considering the Act, Congress

heard testimony on the way in which motor vehicle

information is used in direct marketing. See 1994 WL

212834, Statement of Mary J. Culnan.

As Defendants assert, Congress also sought to regu-

late the disclosure and dissemination of personal DMV

records in order to protect the privacy and safety of

individuals. (Defs.’ Mem. in Supp. at 4-5.) For example,

as Defendants note, during testimony on the DPPA,

Congress learned that, nationwide, criminals have used

motor vehicle records to locate victims and commit

crimes, as private citizens’ addresses and phone num-

bers are easily accessible through such records. (Defs.’

23a

Mem. in Supp. at 4-5.)° During floor debate on the Sen-

ate version of the Act, Senators invoked the example of

Rebecca Shaeffer, an actress from California, who was

murdered by an obsessed fan who obtained her address

from the department of motor vehicles through a pri-

vate investigator. See 139 Cong. Rec. S15766, Com-

ments of Senator Harkin.

Alabama contends that, in enacting the DPPA, Con-

gress has exceeded its authority under the Tenth and

Eleventh Amendments. Specifically, the State con-

tends that the DPPA is an unconstitutional federal

directive requiring the State of Alabama, through its

state executive officers and legislature, to administer a

federal program, which infringes on the State’s sover-

eign right to legislate and regulate its citizens, in

violation of the Tenth Amendment. The State further

contends that the penalties imposed by the Act for

noncompliance violate the Eleventh Amendment. De-

fendants challenge Plaintiffs’ standing to bring this suit,

and assert that the DPPA passes constitutional muster.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to

construe the evidence and factual inferences arising

therefrom in the light most favorable to the nonmoving

party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970). Summary judgment can be entered on a claim

only if it is shown “that there is no genuine issue as to

any material fact and that the moving party is entitled

§ Citing 1994 WL 14167988 (Feb. 4, 1994) (statement of Rep.

Moran); 1994 WL 14168013 (Feb. 3, 1994) (statement of David

Beatty); 1994 WL 14168055 (Feb. 3, 1994) (statement of Donald H.

Cahill); 189 Cong. Rec. $15,762 (Nov. 16, 1993) (statement of Sen.

Boxer); 189 Cong. Rec. $15,765 (Nov. 16. 1993) (statement of Sen.

Robb); 1389 Cong. Rec. $15,765 (statement of Sen. Biden).

24a

to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

As the Supreme Court has explained the summary

judgment standard:

[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time

for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the

existence of an element essential to that party’s

ease, and on which that party will bear the burden

of proof at trial. In such a situation, there can be no

genuine issue as to any material fact, since a

complete failure of proof concerning an essential

element of the non-moving party’s case necessarily

renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The trial court’s function at this juncture is not “to

weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50 (1986) (citations omitted). A dispute

about a material fact is genuine if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party. Anderson, 477 U.S. at 248; see also

Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).

The party seeking summary judgment has the initial

burden of informing the court of the basis for the

motion and of establishing, based on relevant “portions

of ‘the pleadings, depositions, answers to interrogato-

ries, and admissions in the file, together with affidavits,

if any,’” that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a

matter of law. Celotex, 477 U.S. at 323. Once this ini-

tial demonstration under Rule 56(c) is made, the burden

of production, not persuasion, shifts to the nonmoving

25a

party. The nonmoving party must “go beyond the

pleadings and by [his] own affidavits, or by the ‘deposi-

tions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’” Celotex, 477 U.S. at 324; see

also Fed. R. Civ. P. 56(e).

In meeting this burden the nonmoving party “must

do more than simply show that there is a metaphysical

doubt as to the material facts.” Matsushita Elec.

Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). That party must demonstrate that there is a

“genuine issue for trial.” Fed. R. Civ. P. 56(c); Mat-

sushita, 475 U.S. at 587. An action is void of a material

issue for trial “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party.” Matsushita, 475 U.S. at 587; see

also Anderson, 477 U.S. at 249.

DISCUSSION

I. STANDING

Article III of the Constitution restricts the jurisdic-

tion of the federal courts only to those disputes in which

there is an actual “case” or “controversy.” See Raines

v. Byrd, 117 S. Ct. 2312, 2817 (1997). An essential

element of the case-or-controversy requirement is that

Plaintiffs have standing to sue. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). “In essence the

question of standing is whether the litigant is entitled

to have the court decide the merits of the dispute or of

particular issues.” Allen v. Wright, 468 U.S. 737, 750-51

(1984).

To have standing, the plaintiff must allege personal

injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the

26a

requested relief. Valley Forge Christian College v.

Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 474-75 (1982). The alleged injury

must be “distinct and palpable,” and not “abstract,”

“conjectural,” or “hypothetical.” Allen, 468 U.S. at 751

(citations omitted).

In a case such as this, where the court is asked to

determine the constitutionality of legislation, the

court’s standing inquiry is especially rigorous. Raines,

117 S. Ct. at 2317. Thus, before considering the merits

of the case, and before considering Plaintiff's request to

issue a preliminary injunction, the court must deter-

mine whether Plaintiffs have met their burden of esta-

blishing that their claimed injury is personal, particu-

larized, concrete, and otherwise judicially cognizable.

Raines, 117 S. Ct. at 2317. Plaintiffs must at least

establish that they have suffered an injury in fact—

namely an “invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical.” Lujan,

504 U.S. at 560.

Plaintiffs assert two grounds on which the court may

find it has standing to bring the instant action. First,

Plaintiffs contend that the State has standing to protect

the “continued enforceablility of its own statutes.”

(Pls.’ Br. in Supp. of Mot. for Summ. J. at 5.) Specifi-

eally, Plaintiffs contend that the DPPA conflicts with

the State’s present disclosure laws, namely Alabama

Code §§ 32-6-14, 32-7-4 and 36-12-40.

Alabama Code § 36-12-40, the “Open Records Act,”

states, in relevant part:

27a

Every citizen has a right to inspect and take a copy

_of any public writing of this state, except as

otherwise expressly provided by statute.

Ala. Code § 36-12-40 (1975). Plaintiffs contend that

“(flor Alabama Department of Motor Vehicle officials

to comply with the DPPA, they must violate the letter

and spirit of the Alabama ‘Open Records Act’ which

requires public writings be made available to the

public.” (Pls.’ Br. in Supp. of Mot. for Summ. J. at 5.)

Defendants contend that the DPPA does not, in fact,

conflict with the Open Records Act, as Alabama courts

have repeatedly recognized that the provision does not

demand disclosures that will “result in undue harm or

embarrassment to an individual or where the public

interest will clearly be adversely affected, when

weighed against the public policy considerations sug-

gesting disclosure.” (Defs.’ Mem. in Supp. at 11)

(quoting Chambers v. Birmingham News Co., 552 So.2d

854, 856 (Ala. 1989).) Plaintiffs contend, and the court

finds, that no Alabama court has deemed the infor-

mation contained in the DMV records to be an

exception to the C»en Records Act. Accordingly, the

court finds that Plaintiffs have established standing on

this basis. See Oklahoma v. United States, No. 97-1423,

at 4 (W.D. Okl. Sept. 17, 1997) (finding that Plaintiff

established standing based on the DPPA’s conflict with

the Oklahoma Open Records Act).

In addition and in the alternative, the court finds that

the State has shown that the DPPA imposes “sub-

stantial costs” on the State minimally sufficient to

establish its standing to bring suit. Plaintiffs contend

that “[flollowing the DPPA’s restrictive disclosure

guidelines requires development of a new regulatory

scheme and the training of DMV staff in its effect and

28a

operation,” resulting in the State incurring “substantial,

tangible costs.” (Pls.’ Brief in Supp of Pls.’ Resp. to

Order to Show Cause and Defs.’ Mot. to Dismiss at 3.)

In support of this contention, Plaintiffs offer the Affida-

vit of L.N. Hagan, the Director of the Alabama Depart-

ment of Public Safety, stating, in relevant part:

2. The DPPA would impose substantial cost and

labor on the Department of Public Safety if

compliance with the Act is required. —

* * *K *

6. The implementation of DPPA would require the

expense of training personnel about what infor-

mation may be released, to whom and for what

purpose. We would also need to retain personnel

about the opt-out provisions for license renewals

and new licenses.

7. Since the DPPA carries both criminal and civil

penalties for personnel who release information

on drivers licenses, training would have to be

thorough and detailed. My staff estimates the

cost of training to be $16,520.

8. There is no question, if DPPA is fully imple-

mented by the State of Alabama, the Act will

impose substantial expense and labor on the offi-

cers and employees of the Department of Public

Safety.

(Pls.. Amend. Compl., Ex. A., Hagan Aff. (“Hagan

Aff.”).)

Based on this Affidavit, the court finds that the State

has shown that it will suffer the incursion of costs

minimally sufficient to establish standing to bring this

suit. See Condon v. Reno, 972 F.Supp. 977, 981 n. 12

(D.S.C. 1997) (finding that evidence contained in the

29a .

“unrebutted affidavit” of a Department of Motor

Vehicles official that implementation of the DPPA

would “impose substantial costs and effort on the part

of the Department in order for it to achieve compliance”

meets the requirements for standing).

Accordingly, the court finds that the State has

standing to bring the instant suit.

Il. Tenth Amendment

The Tenth Amendment provides: “The Powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the

States respectively, or to the people.” U.S. Const.

amend. X. In this way, “the constitution divides au- .

thority between federal and state governments for the

protection of individuals,” and ensures that our system

of federalism is maintained. New York v. United States,

505 U.S. 144, 181 (1992). Alabama contends that the

DPPA violates the Tenth Amendment on two grounds.

First, Alabama asserts that Congress exceeded its

powers by passing the DPPA pursuant to the Com-

merce Clause. Second, the State argues that the DPPA

imposes an unconstitutional obligation upon the State of

Alabama to regulate the disclosure of personal DMV

records.

In determining whether Congress violated the Tenth

Amendment in enacting the DPPA, the court notes well

that Congressional Acts are to be afforded great

deference and are entitled to a strong presumption of

constitutional validity. See Flemming v. Nestor, 363

U.S. 603, 617 (1960). “Judging the constitutionality of

an Act of Congress is properly considered ‘the gravest

and most delicate duty that this Court is called upon to

perform.” Walters v. National Ass’n of Radiation

30a

Survivors, 473 U.S. 305, 319 (quoting Rostker v.

Goldberg, 453 U.S. 57, 64 (1981) (internal quotations

omitted)). Hence, an Act of Congress will be invalidated

only “or the most compelling constitutional reasons.”

Mistretta v. United States, 488 U.S. 361, 384 (1984). -

A. Congress’s Authority to Pass the DPPA

Where Congress validly exercises authority dele-

gated to it under the Constitution, Congress does not

violate the Tenth Amendment. Cheffer v. Reno, 55 F.3d

1517, 1519 (11th Cir. 1995) (citing United States v.

Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S.

878 (1972)).’ Defendants assert that the DPPA was

valid exercise of Congress’s authority, under the Com-

merce Clause, to regulate activities that affect inter-

state commerce. (Defs.’ Mem. in Supp. at 17) (citing

United States v. Lopez, 514 U.S. 549, 550 58-59 (1995).)

The State, however, contends that Congress exceeded

its Constitutional authority in legislating the State’s

release of public records, as such release is neither

commerce nor an activity substantially affecting com-

merce. (Pls.’ Br. in Supp. of Pls.’ Resp. to Order to

Show Cause and Defs.’ Mot. to Dis. at 3.) The State

further contends that Congress’s attempt to regulate

said release through its link to interstate commerce is

too attenuated to pass muster under the Supreme

Court’s holding in United States v. Lopez, 514 U.S. 549,

550 (1995). (Pls.’ Br. in Supp. of Mot. for Summ. J. at 7.)

Article I, Section 8, Clause 3 of the Constitution em-

powers Congress to “regulate Commerce . . . among

7 Decisions of the Former Fifth Circuit filed prior to October 1,

1981, constitute binding precedent in the Eleventh Circuit.

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc).

8la

the several states.” U.S. Const. art. I, § 8, cl. 3. Pur-

suant to this power, Congress may: (1) regulate chan-

nels of interstate commerce; (2) regulate instrumentali- _

ties of, or persons or things in, interstate commerce;

and (3) regulate intrastate activities that substantially

affect interstate commerce. Lopez, 514 U.S. at 558-59.

Thus, a statute need not regulate economic activity

directly in order to satisfy the requirements of the

Commerce Clause. USA v. Olin, 107 F.3d 1506, 1509

(11th Cir. 1997) (citing Lopez, 514 U.S. at 558-59).

However, where Congress seeks to regulate activi-

ties arising out of or connected to a commercial

transaction, such activities, viewed in the aggregate,

must be found to “substantially affect[] interstate com-

merce.” Lopez, 514 U.S. at 561. The statute “must bear

more than a generic relationship several steps removed

from interstate commerce, and it must be a relationship

that is apparent, not creatively inferred.” United

States v. Wright, 117 F.3d 1265, 1270 (11th Cir. 1997)

(quoting United States v. Kenney, 91 F.3d 884, 888 (7th

Cir. 1996)), vacated in part on r’hring, 1998 WL 29636

(11th Cir. 1998). “Where economic activity substan-

tially affects interstate commerce, legislation regulating

that activity will be sustained.” Lopez, 514 U.S. at 559.

The Eleventh Circuit has stated that Lopez does not

require that Congress make formal legislative findings

connecting the regulated activity to interstate com-

merce. Wright, 117 F.3d at 1269 (citing Olin, 107 F.3d

at 1510). Rather, so long as Congress has a “rational

basis” for concluding that a regulated activity suffi-

ciently affects interstate commerce, its validity under

the Commerce Clause is sound. /d. (citing Lopez, 514

U.S. at 557). Thus, the DPPA survives Commerce

Clause scrutiny if the court finds that Congress had a

32a

rational basis to conclude that the conduct regulated by

the DPPA “arises out of or is connected with a com-

mercial transaction, which, viewed in the aggregate,

substantially affects interstate commerce,” so long as

that connection is not too attenuated. Wright, 117 F.3d

at 1270 (quoting Lopez, 514 U.S. at 561).

Defendants contend that Congress’s passage of the

DPPA was a valid exercise of its Commerce Clause

powers, as Congress enacted the DPPA for the purpose

of regulating “the buying and selling, or disclosing and

receiving, of a commodity, personal information, in a

national commercial market that trades in it.” (Defs.’

Mem. in Supp. at 19.) Defendants urge that Congress

had a solid foundation for linking the DPPA to inter-

state commerce, as “States’ release of personal DMV

information into the national market for personal

information clearly has a substantial effect on interstate

commerce.” (Defs.’ Mem. in Supp. at 35 n. 33.) In

support of this contention, Defendants cite testimony

contained in the Congressional Record concerning the

DPPA. For instance, in considering the DPPA, Con-

gress heard testimony regarding the wide scope of

nationwide trade in personal DMV information. (Defs.’

Mem. in Supp. at 19 (citing 139 Cong. Rec. $15,764

(statement of Sen. Boxer); id. (statement of Sen.

Warner); id. at S15,765 (statement of Sen. Robb); 140

Cong. Rec. H2,522 (Apr. 20, 1994) (statement of Rep.

Moran); id. at H2,526 (statement of Rep. Goss)). This

trade, in which more than half of the States are

engaged, includes the sale of personal DMV records to

businesses who use it in direct marketing nationwide.

Id.

Plaintiffs challenge Defendants’ characterization of

the disclosure of information contained in the DMV

33a

”

records as “commerce.” Specifically, Plaintiffs argue

that Alabama does not and never has trafficked in the

commercial sale of public motor vehicle records.

Rather, the State charges only a “nominal fee to cover

administrative expenses related to the release of public

writings.” (Amend. Compl. ¢ 15.) Thus, Plaintiffs

argue, the federal government’s justification of the law

as regulation of commercial activity in which states are

“market participants” is “inapposite.” (Pls.’ Br. in

Supp. of Mot. for Summ. J. at 7.) Any link between the

State’s public disclosure laws and interstate commerce, -

Plaintiffs argue, is attenuated at best. (Pls.’ Resp. to

Order to Show Cause and Defs.’ Mot. to Dis. at 4.)

The court finds that Congress had a rational basis to

conclude that States’ disclosure of personal DMV

records has a substantial, apparent, effect on interstate

commerce sufficient to withstand scrutiny under the

Tenth Amendment. See Wright, 117 F.3d at 1270.

Even viewing the record before the court in a light

most favorable to the State, it is nevertheless apparent

that Congress, in considering the DPPA, heard testi-

mony revealing that, once released, personal DMV

information is often used in direct marketing campaigns

or resold by database-compiling companies to other

companies for use in direct- marketing campaigns. (See

Statement of Dr. Mary J. Culnan, 1994 WL 14168083,

attached as Ex. 5 to Pls.’ Mem. in Supp.) Furthermore,

Congress learned that direct marketing is a “national”

industry, as list compilers serve customers a “national

audience” of customers. (See id.) Thus, whether Ala-

bama receives a profit from the disclosure of personal

DMV information, or otherwise “traffic[s] in the com-

mercial sale” of personal DMV information is irrele-

vant. Rather, Congress concluded that the very fact

34a

that such information is disclosed substantially impacts

the national trade of DMV records. Hence, regulation

of all States’ disclosure of personal DMV records is

necessary for the regulation of the interstate trade of

such records. Accordingly, the court finds that Con-

gress had an apparent and rational basis for finding

that the regulation of States’ disclosure of personal

DMV records has a substantial effect on interstate

trade. As the court need not pile “inference upon infer-

ence” in order to reach this conclusion, the Act falls

within the scope of Congress’s authority pursuant to

the Commerce Clause. See Lopez, 514 U.S. at 559, 566.

B. The DPPA Does Not Compel the State to

Regulate

Congress’s power under the Commerce Clause to

regulate activities substantially affecting interstate

commerce authorizes Congress to regulate state activi-

ties, as well. Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 550 (1985) (upholding federal

statute requiring states to pay their employees accord-

ing to minimum wage and overtime standards). How-

ever, this authority is limited; Congress may not compel

states or state officers to regulate. Printz v. United

States, 117 S. Ct. 2865, 2884 (1997); New York v. United

8 Defendants also note that Congress passed the DPPA pur-

suant to its powers under Section 5 of the Fourteenth Amendment,

based on its finding that state DMVs were violating the constitu-

tional right of privacy of stalking victims by releasing their home

addresses and phone numbers through DMV records. (Defs.’ Mem.

in Supp. at 25 n. 25 (citing 189 Cong. Rec. S15763 (Statement of

Sen. Boxer)).) Because the court finds that the DPPA is a valid

exercise of Congress’s power under the Commerce Clause, it need

not reach the question of whether the Fourteenth Amendment also

provided authorization for the DPPA. See Cheffer v. Reno, 55 F.3d

1517, 1519, 1521 n. 7 (11th Cir. 1995).

35a

States, 505 U.S. 144, 175-76 (1992). In its Motion for

Summary Judgment, Alabama asserts that the DPPA .

exceeds Congress’s authority to regulate the States, as

the statute is an unconstitutional federal directive

requiring the State of Alabama to administer a federal

program.

In essence, the State argues, rather than regulate the

commercial users of the information contained in the

DMV records, the DPPA commands the States to

regulate the users of the information. (Pls.’ Br. in Supp.

of Mot. for Summ. J. at 7.) Alabama contends that the

DPPA “commandeers the legislative processes of the

States by directly compelling them to enact and enforce

a federal regulatory program.” J/d. at 176. In particu-

lar, the State argues, because only States title and

register motor vehicles and license individuals to drive

on public roads, only States can authorize the initial

release of the information collected therein. (Pls.’ Br. in

Supp. of Pls.’ Resp. to Order to Show Cause and Defs.’

Mot. to Dis. at 6.) Thus, Alabama argues, the DPPA is

an attempt by Congress to require that States regulate

their own activity, namely the release of DMV records.

(Id.) In order for States to come into compliance with

the regulations issued by the DPPA, they must, in fact,

develop and enforce new regulatory schemes to meet

the federal goals articulated in the Act. (/d.) This

violates the Tenth Amendment, Plaintiffs argue, as

“Congress insulates itself from accountability to the

citizenry by shifting the apparent blame for any

problems to the State actors implementing the Act on

Congress’s behalf.” (/d.) As basis for this argument,

the State relies heavily on New York v. United States,

505 U.S. 144 (1992), and Printz v. United States, 117 S.

Ct. 2365 (1997).

36a

In New York v. United States, the Supreme Court

addressed the constitutionality of the “take title” pro-

vision of the federal Low-Level Radioactive Waste

Policy Act, which required States to chose between

accepting ownership of waste generated within their

borders and regulating according to instructions of

Congress. New York, 505 U.S. at 152. The Court held

that the provision violated the Tenth Amendment, as

both “choices” given the States were “unconstitution-

ally coercive regulatory techniques.” Jd. at 176. The

Court found that this provision “commandeers the

legislative processes of the States by directly compel-

ling them to enact and enforce a federal regulatory

program,” in violation of the powers given Congress

under the Constitution Jd. at 176. In sum, the Court

held that “(t]he Federal Government may not compel

the States to enact or administer a federal regulatory

program.” New York, 505 U.S. at 188.

[E]ven where Congress has the authority under

the Constitution to pass laws requiring or prohibit-

ing certain acts, it lacks the power directly to

compel the states to require or prohibit those acts.

The allocation of power in the Commerce Clause,

for example, authorizes Congress to regulate inter-

state commerce directly, it does not authorize Con-

gress to regulate state government’s regulation of

interstate commerce.

New York, 505 U.S. at 166.

In Printz v. United States, the Court expanded its

holding in New York. There, the Court held unconstitu-

tional provisions of the Brady Handgun Violence Pre-

vention Act imposing interim requirements on State

chief law enforcement officers (“CLEQs”) to conduct

background checks on prospective handgun purchasers

37a

and to perform related tasks. Printz, 117 S. Ct. at 2368.

Specifically, the Act required that CLEOs:

make a reasonable effort to ascertain within 5 busi-

ness days whether receipt or possession [of a fire-

arm by a particular purchaser] would be in viola-

tion of the law, including research in whatever

state and local recordkeeping systems are avail-

able.

Printz, 1178. Ct. at 2369 (quoting 18 U.S.C. § 922(s)(2)).

The Court characterized this provision as one directing

or forcing state law enforcement officers to participate

in the administration of a federally enacted regulatory

scheme. Printz, 117 S. Ct. at 2369, 2376. The Court

held that such a requirement violated the Constitution,

because:

[t]he Federal Government may neither issue direc-

tives requiring the States to address particular

problems, nor command the States’ officers, or

those of their political subdivisions, to administer

or enforce a federal regulatory program. It matters

not whether policymaking is involved, and no case-

by-case weighing of burdens or benefits is neces-

sary; such commands are fundamentally incompati-

ble with our constitutional system of dual sover-

eignty.

Printz, 1178. Ct. at 2384.

A basic principle upon which the Supreme Court

rests its holdings in New York and Printz is the

allocation of accountability between States and the

federal government. “By forcing state governments to

absorb the financial burden of implementing a federal

regulatory program, Members of Congress can take

credit for ‘solving’ problems without having to ask their

38a

constituents to pay for the solutions with higher federal

taxes. And even when the States are not forced to

absorb the costs of implementing a federal program,

they are still put in the position of taking the blame for

its burdensomeness and for its defects.” Printz, 117 S.

Ct. at 2382.

In characterizing the DPPA as “a federal mandate

that requires the State of Alabama to design, imple-

ment and enforce administrative procedures regulating

its release and its citizens’ access to and use of motor

vehicle records,” the State analogizes the DPPA to the

act at issue in Printz. (Pls.’ Br. in Supp. of Mot. for

Summ. J. at 10.) “Much like the portion of the ‘Brady

_ Bill’ which commandeered participation of State law

enforcement, the DPPA mandates ‘the forced participa-

tion of the States’ executive in the actual administra-

tion of a federal program’” by prohibiting States from

releasing privacy related records, except in accordance

with a federal plan. (Pls.’ Br. in Supp. of Mot. for

Summ. J. at 8, 9 (quoting Printz, 117 8S. Ct. at 2376).)

Defendants contend that Alabama’s argument mis-

construes both the DPPA and Tenth Amendment juris-

prudence, and urge the court to critically evaluate

Plaintiffs’ representation of the DPPA, and that of the

other District Courts which have addressed its con-

stitutionality.? According to Defendants, rather than

directing States to regulate, the DPPA directly regu-

lates state activities that substantially affect interstate

commerce, as the DPPA neither directs the States or

9 Both the district court of South Carolina and the district court

of Oklahoma have found that the DPPA, like the provision at issue

in Printz, violates the Tenth Amendment. Condon v. Reno, 972

F.Supp. at 986; Oklahoma v. United States, No. 97-1423-R 1358

(W.D. Okl. Sept. 17, 1997).

39a

their officials to regulate their citizens, nor to construct

any regulatory regime. (Defs.’ Mem. in Supp. at 16.)

Defendants analogize the DPPA to other constitu-

tional regulations the federal government imposes

directly on the States. (Defs.’ Mem. in Supp. at 18-19)

(citing Garcia v. San Antonio Metro. Transit Auth., 469

U.S. 528 (1985) (allowing federal legislation requiring

States to pay their employees according to federal -

minimum wage and overtime standards); E.E.0.C. v.

Wyoming, 460 U.S. 226 (1983) (allowing federal regula-

tion ordering States not to discriminate against their

employees on the basis of age).) Defendants argue that,

like these constitutional statutes, “the DPPA simply

regulates a realm of national economic activity—here,

the buying and selling, or disclosing and receiving, of a

commodity, personal information, in a national com-

mercial market that trades in it—whether or not the

economic actors happen to be States or citizens.”

(Defs.’ Mem. in Supp. at 19.)

Defendants distinguish the statute at issue here from

those found unconstitutional in New York and Printz.

In this statute, unlike those at issue in New York and

Priniz, “Congress has set forth a comprehensive

scheme directly regulating individuals’ disclosure and

states’ disclosures of personal information. It has not

enlisted the States to do either job for it.” (Defs.’ Mem.

in Supp. at 25.) Defendants argue that “the DPPA di-

rects neither states or their officials to regulate indi-

viduals’ behavior for it, nor compels States to craft new

administrative or legislative schemes designed to regu-

late the state’s own activities.” (Defs.’ Mem. in Supp. at

23.)

Specifically, Defendants argue, the DPPA does not

“call upon states or state officials to legislate pursuant

40a

to congressional direction,” nor does the DPPA “con-

script state officers to help the federal government

search for potential violations of federal law.” (Defs.’

Mem. in Supp. at 23.) The DPPA does not require that

State officials report or arrest violators of the Act; nor

does it require States to ensure that state citizens not

use, sell or otherwise violate the Act. (Defs.’ Mem. in

Supp. at 24.) Rather, Defendants argue, the DPPA

“directly regulates individuals’ use of that information.”

(Defs.’ Mem. at 24.) Further, Defendants argue, the

DPPA does not impermissibly compel States to pass

laws or invent administrative schemes to govern their

own activities; Congress itself has articulated a federal

regulatory scheme to directly regulate the state activi-

ties by setting forth restrictions on disclosure of

personal DMV information by States and private indi-

viduals. (Defs.’ Mem. in Supp. at 24-25.) In sum, Defen-

dants argue, the DPPA requires no regulatory or en-

forcement action on the part of the State or state

officials. (Defs.’ Mem. at 25.)

The court agrees with Defendants’ characterization

of the DPPA and finds that the DPPA is not the type

federal legislation prohibited by New York and Printz.

Rather, the court finds that the DPPA is analogous to

the statute found constitutional in South Carolina v.

Baker, 485 U.S. 505 (1988). There, the Court upheld the

constitutionality of an Internal Revenue Code provision

denying federal income tax exemptions for interest

earned on state issued unregistered (“bearer”) bonds,

specifically rejecting South Carolina’s argument that

the provision violated the Tenth Amendment. 7d. at

515. In reaching its holding, the Court analyzed the

provision as if it directly regulated the States by

prohibiting outright the issuance of bearer bonds. Jd.

4la

at 511. As in the instant case, the State in Sowth

Carolina v. Baker argued that the prohibition “com-

mandeers the state legislative and administrative

process by coercing States into enacting legislation”

and administrating a scheme to comply with the federal

provision. Jd. at 513.

The Court held, however, that the provision at issue

in South Carolina v. Baker regulates state activities—

specifically the issuance of non-registered bonds—

rather than the manner in which States regulate pri-

vate parties. Jd. at 514. The Court rejected the State’s

argument that the provision, though regulating the

state, nevertheless commandeers the State legislative

and administrative process because the State’s legisla-

ture had to amend numerous statutes to comply with

the federal provision, and because state officials would

be required to “devote substantial effort to determine

how best to implement” the system required by the

federal provision. Jd. at 514. The Court stated:

Such “commandeering” is, however, an inevitable

consequence of regulating a state activity. Any

federal regulation demands compliance. That a

State wishing to engage in certain activity must

take administrative and sometimes legislative

action to comply with federal standards regulating

that activity is a commonplace that presents no

constitutional defect.

South Carolina, 485 U.S. at 514-15. The Court further

stated that “Congress could constitutionally impose

federal requirements on States that States could meet

only by amending their statutes.” South Carolina, 485

U.S. at 515. Seealso Federal Energy Regulatory

Comm’n v. Mississippi, 456 U.S. 742, 762 (1982)

(“FERC”) (“(T]here are instances where the Court has

42a

upheld federal statutory structures that in effect

directed state decisionmakers to take or to refrain from

taking certain actions.”).

The court finds that the DPPA, like the statute at

issue in South Carolina v. Baker, is one which directly

regulates the states, rather than requires the states to

administer or enforce a federal regulation. This distin-

guishes the DPPA from the provisions at issue in New

York and Printz—both of which the Court found re-

quired States to regulate certain activity according to

the instructions of Congress. New York, 505 U.S. at

175; Printz, 117 S. Ct. at 2883. As Defendants note, the

DPPA neither asks State officials to arrest or report

violators of the DPPA, nor does it require States to

ensure that state citizens do not use, sell or otherwise

re-disclose personal DMV information. Unlike the pro-

vision at issue in Printz, the DPPA requires no affirma-

tive action by the State or its officers. See Printz, 117

S. Ct. at 2369.

Rather, the DPPA merely prohibits States from

disclosing personal DMV records for any impermissible

purpose; the DPPA itself directly regulates individuals’

use of such information by governing how authorized

individuals may resell or re-disclose personal DMV

information, making it unlawful for persons to know-

ingly obtain or disclose personal DMV information for

an improper use, and making it unlawful for persons to

make false representations to obtain personal DMV

records. 18 U.S.C. §§ 2721(c); 2722(a) and (b). The Act

provides for fines against individuals who knowingly

violate the Act, 18 U.S.C. § 2723(a), as well as author-

izes civil actions against individuals who knowingly

obtain, disclose or use personal information from a

motor vehicle record for an improper use. 18 U.S.C.

48a

§ 2724. As Defendants state, nothing in the DPPA re-

quires that States or State officials legislate solutions to

solve the federally-identified problem of improper

disclosure of personal records contained in DMV

records. Rather, the DPPA sets forth a bar on the

dissemination of information except as provided in the

DPPA by both the State and private individuals. Thus,

as in South Carolina v. Baker, Congress has simply

enacted a prohibition on certain State activity.

Alabama may, indeed, incur some administrative and

personnel costs associated with compliance with the

Act. (See Hagan Aff.) However, the DPPA does not

mandate that Alabama enact any specific legislation or

regulation; nor does the Act require that the State take

any specific acticin in furtherance of a federal goal.”

The fact that the State may have to “take administra-

tive and sometimes legislative action to comply with

federal standards regulating that activity is a common-

place that presents no constitutional defect.” South

Carolina, 485 U.S. at 514-15."

10 The court notes that the DPPA allows States to establish

waiver procedures to handle requests for disclosures that do not

fall within one of the Act’s exceptions, 28 U.S.C. § 2721(d), as well

as allows States to release personal information for certain pur-

poses, so long as they establish a way for individuals to prohibit

such disclosure. 28 U.S.C. § 2721(b)(11), (12). However, these pro-

visions are permissive, rather than mandatory. Thus, despite the

fact that States may establish waiver and “opt out” provisions in

order to disclose information for otherwise impermissible pur-

poses, they are not required to do so.

11 In so finding, the court respectfully disagrees with both the

South Carolina and Oklahoma district courts’ findings that the

DPPA requires States to regulate their citizens’ access to and use

of personal DMV records. Condon, 972 F.Supp. at 986 (finding

44a

This court is keenly aware of the Supreme Court’s

trend, indicated by New York and Printz, of invalidat-

ing federal legislation on grounds that it “comman-

deers” state legislative and administrative processes.

Yet, despite these recent holdings prohibiting Congress

from compelling the States to enact or administer

federal regulatory programs, South Carolina v. Baker

is still good law. The Court has yet to hold that, where

a federal regulation merely demands State compliance,

necessitating the State take administrative or even

legislative action to achieve such compliance, such

- regulation amounts to impermissible “commandeering”

of the State’s legislative or administrative process.

Because the court finds that the DPPA falls within the

scope of South Carolina v. Baker, rather than New

York and Printz, the court must also find that the

DPPA presents no constitutional defect.

Judicial self-restraint mandates the duty of the court

to follow controlling precedent, like it or not. While the

law may well be changed by the Eleventh Circuit or the

Supreme Court, trial courts do not make law—indeed

do not even dictate “holdings”—but instead find facts

and apply the existing law. Accordingly, it is not within

the province of this district court to expand the Court’s

holdings in New York or Printz to encompass the

present instance. Rather, the court is obligated to

follow precedent. The Supreme Court has recently re-

affirmed the principle that “if a precedent of [The

Supreme] Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of

decisions, the [district court] should follow the case

that the DPPA violates the Tenth Amendment); Oklahoma v.

United States, No. 97-1423-R (W.D. Okl. Sept. 17, 1997) (same).

45a

which directly controls, leaving to [the Supreme Court]

the prerogative of overruling its own decisions.”

Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (quoting

Rodriguez de Quijas v. Shearson/American Express,

490 U.S. 477, 484 (1989)).

Hence, the court finds it is bound by the Supreme

Court’s holding South Carolina v. Baker. The DPPA

does not violate the Tenth Amendment, as it is a direct

prohibition on the State from releasing personal DMV

records for impermissible purposes, rather than a

regulation requiring the State to enforce the federal

government’s ban on personal DMV disclosures. While

the court is keenly aware of the way in which “forcing

state governments to absorb the financial burden of

implementing a federal regulatory program” threatens

the balance of our system of federalism, Printz, 117 S.

Ct. at 2382, any costs incurred by the State, or actions

that the State must take as it attempts to come into

compliance with the DPPA, do not amount to the

“commandeering” found impermissible in New York

and Printz. See South Carolina, 485 U.S. at 514-15.”

Based on the foregoing, the court finds that the DPPA

does not violate the Tenth Amendment.

12 The court notes well that the Tenth Amendment serves to

prohibit Congress from easily “tak[ing] credit for ‘solving’ prob-

lems without . .. ask[ing] their constituents to pay for the

solutions with higher federal taxes,” thereby “forcing state

governments to absorb the financial burden of implementing a

federal regulatory program.” Printz, 117 S. Ct. at 2382. Had the

court found that the DPPA presented such a situation, the court

would not have hesitated to find the Act constitutionally infirm.

However, as discussed infra, the court finds that the DPPA does

not pass along to the States the cost of implementing a federal

regulatory program.

46a

III. Eleventh Amendment

Alabama would also urge the court to find that the

DPPA violates the Eleventh Amendment to the United

States Constitution. The Eleventh Amendment states:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI.

Plaintiffs argue that two provisions within the DPPA

violate the Eleventh Amendment. First, § 2723(b) of

the Act provides for a $5,000 a day civil penalty against

the state for noncompliance. It states:

Any State department of motor vehicles that has a

policy or practice of substantial noncompliance with

this chapter shall be subject to a civil penalty

imposed by the Attorney General of not more than

$5,000 a day for each day of substantial noncompli-

ance.

18 U.S.C. § 2723(b).

In addition, the Act provides for a civil damages

remedy against a person who knowingly discloses

personal information from a motor vehicle record. 18

U.S.C. § 2724(a) provides:

A person who knowingly obtains, discloses or uses

personal information, from a motor vehicle record,

for a purpose not permitted under this chapter,

shall be liable to the individual to whom the

information pertains, who may bring a civil action

in a United States district court.

18 U.S.C. § 2724(a).

47a

The Act further provides that, pursuant to this civil

action remedy, the court may award actual damages of

not less than liquidated damages in the amount of

$2,500, punitive damages upon proof of willful or

reckless disregard-of the law, reasonable attorneys fees

and costs, as well as other equitable relief. 18 U.S.C.

§ 2724(b).

Plaintiffs argue that these provisions violate the

Eleventh Amendment because they allow for suits

against state employees and agents. Plaintiffs cite

Seminole Tribe of Florida v. Florida, 517 U.S. 609

(1996), for the proposition that the Commerce Clause

does not grant Congress the power to abrogate the

States’ sovereign immunity. Thus, absent a waiver by

the State, Congress may not authorize suit against the

state.

“(T]he Eleventh Amendment bars suits in federal

court ‘by private parties seeking to impose a liability

which must be paid from public funds in the state

treasury.” Hafer v. Melo, 502 U.S. 2i, 30 (1991)

(quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)).

However, “the Eleventh Amendment does not erect a

barrier against suits to impose ‘individual and personal

liability’ on state officials.” Hafer, 502 U.S. at 30-31.

Thus, where a statute authorizes suit against state

employees personally, the Eleventh Amendment erects

no bar. See Hafer, 502 U.S. at 31; Cross v. State of

Alabama, 49 F.3d 1490, 1503 (11th Cir. 1995).

The court finds that the DPPA does not authorize

suits by private individuals against the State. The

definitional section of the DPPA clearly indicates that

any suits authorized by the DPPA against “any person”

knowingly disclosing personal information from a motor

48a

vehicle record in violation of the DPPA excludes suits

against the State or State agencies. Specifically,

18 U.S.C. § 2725(2) states:

“person” means an individual, organization or

entity, but does not include a State or agency

thereof.

18 U.S.C. § 2725(2). Hence, by its own terms, the Act

authorizes private suits against individuals, yet

precludes such suits against the state.”

Plaintiffs would have the court find that § 2725(1)’s

definition of “person” is irrelevant for purposes of

Eleventh Amendment analysis. Plaintiffs state that,

because “the primary ‘disclosures’ of information de-

fined by the DPPA are state DMV employees,

18 U.S.C. § 2724(a) clearly exposes state employees to

suit and thus effectively authorizes damage suits

against the states.” (Pls.’ Br. in Supp. of Pls.’ Mot. for

Summ. J. at 10-11.) Alabama argues that to interpret

“persons” not to include State actors but to expose

State workers to personal financial liability for follow-

ing the instructions of their superiors would render the

statute meaningless. (Pls.’ Resp. to Order to Show

Cause and Defs.’ Mot. to Dis. at 7.) Alabama states

13 By authorizing private suits for civil damages against “per-

sons,” but defining “person” to exclude the State or any State

agency, the: DPPA precludes such suits against individuals in their

“official capacity.” It is well-settled that a suit for monetary relief

against a state officer in his or her official capacity is deemed a suit

against the state. See e.g. Cross v. State of Alabama, 49 F.3d 1490,

1503 (11th Cir. 1995) (citing Lassiter v. Alabama A&M University,

3 F.3d 1482, 1485 (11th Cir. 1993)). Further, the statute in no way

precludes individuals from asserting the defense of “qualified

immunity.” See Gold v. City of Miami, 121 F.3d 1442 (11th Cir.

1997).

49a

that, because only State employees have access and

ability to make an initial release of personal DMV

information, suits against State employees for following

State law and-procedure (presumably in accordance

with Alabama’s Open Records Act) as relates to the

DPPA “must necessarily be a claim against the State

and therefore subject to Eleventh amendment im-

munity.” (Pls.’ Resp. to Order to Show Cause and

Defs.’ Mot. to Dismiss at 7.) Plaintiffs further argue

that, should the court accept Defendants’ interpretation

of the statute, personal immunity defenses allowed for

state employees would render the statute meaningless

as well. (/d. at 8.)

Although the State would have the court find that

such a reading of the statute renders it “meaningless,”

such a reading is the statute’s “plain meaning.” Thus,

the court construes the State’s argument as an invita-

tion for the court to interpret the statute as authorizing

suit against state employees in their official capacity,

despite the statute’s express words to the contrary.

The court respectfully declines the State’s invitation to

interpret the DPPA contrary to its clear meaning.

Rather, the court is mindful of its duty to respect the

enactments of a legislative body.

It is a maxim of statutory construction that a court

must give plain meaning to a statute where such

meaning is patent. “[W]here the words of a law, treaty,

or contract, have a plain and obvious meaning, all con-

struction, in hostility with such meaning, is excluded.

This is a maxim of law, and a dictate of common sense.”

Green v. Biddle, 21 U.S. (8 Wheat.) 1, 89-90 (1821)).

Furthermore, “[f]ederal statutes are to be so construed

as to avoid serious doubt of their constitutionality.

‘When the validity of an act of Congress is drawn in

50a

question, and even if a serious doubt of constitutionality

is raised, it is a cardinal principle that this Court will

first ascertain whether a construction of the statute is

fairly possible by which the question may be avoided.’

Crowell v. Benson, 285 U.S. 22, 62 [(1932)].” Concrete

Pipe & Products of Cal. v. Construction Laborers

Pension Trust for So. Cal., 508 U.S. 602, 628 (1993)

(quoting Machinists v. Street, 367 U.S. 740, 749-750

(1961)).

The State further argues that Congress is precluded

by the Eleventh Amendment from authorizing suit

against the State by the United States. Accordingly,

the State argues, § 2723(b); authorizing the Attorney

General to impose a civil penalty against the State, is

unconstitutional. The court finds that this argument is

patently frivolous. The Supreme Court has refused to

apply the Eleventh Amendment to bar federal court

suits by the United States government against a state.

Rather, the Court has explicitly stated, “the Federal

Government can bring suit in federal court against a

State.” Seminole Tribe of Florida v. Florida, 116 S. Ct.

1114, 1131 n. 14 (1996). See also United States v. Mis-

sissippi, 380 U.S. 128, 140-41 (1965); United States v.

Texas, 143 U.S. 621, 641-47 (1892). Contrary to the

State’s contention, it is irrelevant which Constitutional

provision authorizes the statute in question. Again, the

court respectfully declines to override over one hun-

dred years of Supreme Court precedent to find that the

E'eventh Amendment precludes Congress from author-

izing the United States to bring a suit against a State.

The court takes very seriously its oath and obligation to

uphold the supreme law of the land and would neither

be presumptuous enough nor “activist” enough to deem

that it, as a district court, has the authority to make

5la

new law. Accordingly, the court finds that the DPPA

does not violate the Eleventh Amendment to the

United States Constitution.

ORDER

Based on the foregoing, the following is hereby

CONSIDERED and ORDERED:

(1) Plaintiffs’ Motion for Summary Judgment be and

the same is hereby DENIED;

(2) Defendants’ Motion to Dismiss, construed by the

court as a Motion for Summary Judgment, be

and the same is hereby GRANTED;

(3) Plaintiffs’ Motion for a Preliminary Injunction be

and the same is hereby DENIED as moot; and

(4) All costs herein incurred be and the same are

hereby taxed against Plaintiff, for which let

execution issue.

Done this the 13th day of March, 1998.

/s)_ IRA DE MENT

IRA DE MENT

UNITED STATES

DISTRICT JUDGE

52a

APPENDIX C

The Drivers Privacy Protection Act of 1994,

18 U.S.C. 2721-2725 (1994 & Supp. III 1997), provides:

§ 2721. Prohibition on release and use of certain

personal information from State motor

vehicle records

(a) IN GENERAL.—Except as provided in sub-

section (b), a State department of motor vehicles, and

any officer, employee, or contractor, thereof, shall not

knowingly disclose or otherwise make available to any

person or entity personal information about any

individual obtained by the department in connection

with a motor vehicle record.

(b) PERMISSIBLE USES.—Personal information

referred to in subsection (a) shall be disclosed for use in

connection with matters of motor vehicle or driver

safety and theft, motor vehicle emissions, motor vehicle

product alterations, recalls, or advisories, performance

monitoring of motor vehicles and dealers by motor

vehicle manufacturers, and removal of non-owner re-

cords from the original owner records of motor vehicle

manufacturers to carry out the purposes of titles I and

IV of the Anti Car Theft Act of 1992, the Automobile

Information Disclosure Act (15 U.S.C. 1231 et seq.), the

Clean Air Act (42 U.S.C. 7401 et seq.), and chapters

301, 305, and 321-331 of title 49, and may be disclosed as

follows:

(1) For use by any government agency, in-

cluding any court or law enforcement agency, in

carrying out its functions, or any private person or

entity acting on behalf of a Federal, State, or local

agency in carrying out its functions.

53a

(2) For use in connection with matters of motor

vehicle or driver safety and theft; motor vehicle

emissions; motor vehicle product alterations, recalls,

or advisories; performance monitoring of motor

vehicles, motor vehicle parts and dealers; motor

vehicle market research activities, including survey

research; and removal of non-owner records from

the original owner records of motor vehicle manu-

facturers.

(3) For use in the normal course of business by

a legitimate business or its agents, employees, or

contractors, but only—

(A) to verify the accuracy of personal

information submitted by the individual to the

business or its agents, employees, or contractors;

and

(B) if such information as so submitted is

not correct or is no longer correct, to obtain the

correct information, but only for the purposes of

preventing fraud by, pursuing legal remedies

against, or recovering on a debt or security in-

terest against, the individual.

(4) For use in connection with any civil, crimi-

nal, administrative, or arbitral proceeding in any

Federal, State, or local court or agency or before

any self-regulatory body, including the service of

process, investigation in anticipation of litigation,

and the execution or enforcement of judgments and

orders, or pursuant to an order of a Federal, State,

or local court.

(5) For use in research activities, and for use in

producing statistical reports, so long as the personal

54a

information is not published, redisclosed, or used to

contact individuals.

(6) For use by any insurer or insurance support

organization, or by a self-insured entity, or its

agents, employees, or contractors, in connection

with claims investigation activities, antifraud activi-

ties, rating or underwriting.

(7) For use in providing notice to the owners of

towed or impounded vehicles.

(8) For use by any licensed private investiga-

tive agency or licensed security service for any

purpose permitted under this subsection.

(9) For use by an employer or its agent or

insurer to obtain or verify information relating to a

holder of a commercial driver’s license that is re-

quired under chapter 313 of title 49.

(10) For use in connection with the operation of

private toll transportation facilities.

(11) For any other use in response to requests

for individual motor vehicle records if the motor

vehicle department has provided in a clear and con-

spicuous manner on forms for issuance or renewal of

operator’s permits, titles, registrations, or identi-

fication cards, notice that personal information

collected by the department may be disclosed to any

business or person, and has provided in a clear and

conspicuous manner on such forms an opportunity to

prohibit such disclosures.

(12) For bulk distribution for surveys, marketing

or solicitations if the motor vehicle department has

55a

implemented methods and procedures to ensure

that—

(A) individuals are provided an opportu-

nity, in a clear and conspicuous manner, to pro-

hibit such uses; and

(B) the information will be used, rented, or

sold solely for bulk distribution for surveys,

marketing, and solicitations, and that surveys,

marketing, and solicitations will not be directed

at those individuals who have requested in a

timely fashion that they not be directed at them.

(18) For use by any requester, if the requester

demonstrates it has obtained the written consent of

the individual to whom the information pertains.

(14) For any other use specifically authorized

under the law of the State that holds the record, if

such use is related to the operation of a motor

vehicle or public safety.

(c) RESALE OR REDISCLOSURE.—An authorized

recipient of personal information (except a recipient

under subsection (b)(11) or (12)) may resell or redisclose

the information only for a use permitted under sub-

section (b) (but not for uses under subsection (b) (11) or

(12)). An authorized recipient under subsection (b)(11)

may resell or redisclose personal information for any

purpose. An s1thorized recipient under subsection

(b)(12) may resell or redisclose personal information

pursuant to subsection (b)(12). Any authorized recipi-

ent (except a recipient under subsection (b) (11)) that

resells or rediscloses personal information covered by

this chapter must keep for a period of 5 years records

identifying each person or entity that receives

information and the permitted purpose for which the

56a

information will be used and must make such records

available to the motor vehicle department upon

request.

(d) WAIVER PROCEDURES.—A State motor vehi-

cle department may establish and carry out procedures

under which the department or its agents, upon

receiving a request for personal information that does

not fall within one of the exceptions in subsection (b),

may mail a copy of the request to the individual about

whom the information was requested, informing such

individual of the request, together with a statement to

the effect that the information will not be released

unless the individual waives such individual’s right to

privacy under this section.

§ 2722. Additional unlawful acts

(a) PROCUREMENT FOR UNLAWFUL PUR-

POSE.—It shall be unlawful for any person knowingly

to obtain or disclose personal information, from a motor

vehicle record, for any use not permitted under section

2721(b) of this title.

(b) FALSE REPRESENTATION.—It shall be unlaw-

ful for any person to make false representation to

obtain any personal information from an individual’s

motor vehicle record.

§ 2723. Penalties

(a) CRIMINAL FINE.—A person who knowingly

violates this chapter shall be fined under this title.

(b) VIOLATIONS BY STATE DEPARTMENT OF

MOTOR VEHICLES.—Any State department of motor

vehicles that has a policy or practice of substantial

noncompliance with this chapter shall be subject to a

57a

civil penalty imposed by the Attorney General of not

more than $5,000 a day for each day of substantial non-

compliance:

§ 2724. Civil action

(a) CAUSE OF ACTION.—A person who knowingly

obtains, discloses or uses personal] information, from a

motor vehicle record, for a purpose not permitted under

this chapter shall be liable to the individual to whom

the information pertains, who may bring a civil action in

a United States district court.

(b) REMEDIES.—The court may award—

(1) actual damages, but not less than liquidated

damages in the amount of $2,500;

(2) punitive damages upon proof of willful or

reckless disregard of the law;

(3) reasonable attorneys’ fees and other liti-

gation costs reasonably incurred; and

(4) such other preliminary and equitable relief

as the court determines to be appropriate.

§ 2725. Definitions

In this chapter—

(1) “motor vehicle record” means 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;

(2) “person” means an individual, organization or

entity, but does not include a State or agency thereof;

and

58a

(3) “personal information” means information that

identifies an individual, including an individual’s photo-

graph, social security number, driver identification

number, name, address (but not the 5-digit zip code),

telephone number, and medical or disability infor-

mation, but does not include information on vehicular

accidents, driving violations, and driver’s status.