# Petition for Writ of Certiorari — Oklahoma Department of Public Safety v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1114

## Text

Supreme Couct, US,
FILED

PBSITGEONTS

GRACE OF TRE CLERK

In The

Supreme Court of the United States

October Term, 1998
*

THE STATE OF OKLAHOMA, ex rel.
THE OKLAHOMA DEPARTMENT OF PUBLIC SAFETY,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

a

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
*

PETITION FOR A WRIT OF CERTIORARI
¢

W.A. Drew EDMONDSON
Attorney General

JAMES ROBERT JOHNSON
Assistant Attorney General
Counsel of Record

JOHN K. LINDsEy
General Counsel
Department of Public Safety

Douc tas F. Price

Assistant Attorney General
Office of the Attorney General
4545 North Lincoln Blvd.

Room 260

Oklahoma City, Oklahoma 73105
405/521-4274

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

€

QUESTION PRESENTED

The Driver’s Privacy Protection Act of 1994 (the
“DPPA”) is a federal statute which directs States when
they may, may not, and must disclose certain “personal
information” from their motor vehicle records. In the face
of a request for information from these records, the DPPA
generally requires State employees to discers. whether the
information sought is “personal information” as defined
by the DPPA, and then, whether they may, may not, or
must satisfy the request under the detailed federal
scheme. The State of Oklahoma challenged the DPPA as a
violation of the Tenth Amendment because (a) it requires
States to administer a federally-created information dis-
closure scheme and (b) the scheme applies exclusively to
records developed and maintained by States without
imposing similar requirements on federal and private
sector sources of “personal information.” The District
Court agreed with the State of Oklahoma and struck
down the DPPA as a violation of the Tenth Amendment.
The Tenth Circuit, however, did not agree and reversed.

The question presented is:

Does the Driver’s Privacy Protection Act violate the
Tenth Amendment to the United States Constitution?

il

LIST OF PARTIES

Actual parties to the proceedings in the Court of
Appeals were:

The State of Oklahoma, ex rel. the Oklahoma Department
of Public Safety,

Petitioner herein.
The United States of America,

Respondent herein.

ili

TABLE OF CONTENTS

Page
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B. The Decision of the District Court........... 4
C. The Decision of the Tenth Circuit............ 5
REASONS FOR GRANTING THE WRIT ........... 6

I. THE DECISION OF THE TENTH CIRCUIT
COURT OF APPEALS IS IN CONFLICT WITH
THE DECISIONS OF THE FOURTH AND ELEV-

ENTH CIRCUIT COURTS OF APPEALS ....... 7
Il. THE CASE PRESENTS IMPORTANT CONSTI-

Es ao a kee sees hee eens cecsnese. 9
a 14

Es App. 1

iv

TABLE OF AUTHORITIES
Page

CASES
Condon v. Reno, 155 F.3d 453 (4th Cir. 1998)..... 4,6, 7
E.E.0.C. v. Wyoming, 460 U.S. 226 (1983) ..... 4, 6, 8, 12

Garcia v. San Antonio Metropolitan Transit Authority,

ek errr err err rrrrr rr 4, 6, 8, 12
New York v. United States, 505 U.S. 144 (1992) ... passim
Printz v. United States, 117 S.Ct. 2365 (1997)..... passim
Pryor v. Reno, _. F.3d —. (Tith Cir. 1999)........... 6
Reno v. Condon, petition for cert. filed, 67 U.S. L.W.

Soe CUS. Wie TA SO ee 6 The Eleventh Circuit observed that Congress “riddled the
Act with more holes than Swiss cheese. Through these holes
escaped most the of interstate commerce activity covered by the
Act.” (Pet. App. 41) Commercial interests are thereby protected
from the prohibitions of the act. It is only the right of citizens to
have access to government records which has been undone.

14

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

W.A. Drew EDMONDSON
Attorney General

James Ropert JOHNSON
Assistant Attorney General

JOHN K. Linpsey
General Counsel
Department of Public Safety

Doucias F. Prics
Assistant Attorney General

Office of the Attorney General
4545 North Lincoln Blvd.

Room 260

Oklahoma City, Oklahoma 73105
405/521-4274

April, 1999

App. 1

STATE OF OKLAHOMA, ex rel
OKLAHOMA DEPARTMENT OF PUBLIC SAFETY,
Plaintiff-Appellee,

Vv.

UNITED STATES of America,
Defendant-Appellant.

No. 97-6389.

United States Court of Appeals,
Tenth Circuit.
Dec. 3, 1998.

James Robert Johnson, Assistant Attorney General
(Douglas F. Price, Assistant Attorney General, and John
K. Lindsey, General Counsel, Oklahoma Department of
Public Safety, with him on the brief), Oklahoma City,
Oklahoma, for Plaintiff-Appellee.

Mark B. Stern (Alisa B. Klein and Daniel Kaplan with
him on the brief), Appellate Staff, Civil Division, Depart-
ment of Justice, Washington, D.C. for Defendant-Appel-
lant.

Robin L. Rivett, Anne M. Hawkins, and Deborah ia
Fetra, Of Counsel, Pacific Legal Foundation, Sacramento,
California, filed an Amicus Curiae Brief in Support of
Plaintiff-Appellee.

Thomas H. Odom, Gregory S. Feder, and Marc R.
Baluda of Arter & Hadden LLP. Washington, D.C., Bill
Pryor, Attorney General, Billington M. Garrett, Assistant
Attorney General, and Jack Curtis, Assistant Attorney
General, Montgomery, Alabama, and William U. Hill,

Attorney General, Cheyenne, Wyoming, filed an Amicus
Curiae Brief in Support of Plaintiff-Appellee.

App. 2

Before ANDERSON, HOLLOWAY, and BALDOCK,
Circuit Judges.

BALDOCK, Circuit Judge.

In this case, Oklahoma’s open record laws and fed-
eral legislation preventing disclosure of information con-
tained in motor vehicle records are in conflict. The
Oklahoma Highway Safety Code, Okla. Stat. tit. 47, § 6-
117(H), and the Oklahoma Open Records Act, Okla. Stat.
tit. SI, § 24A.5, require that information about any indi-
vidual identified in the records of Oklahoma’s motor
vehicle department be available for public inspection for
a small fee. Any public official who willfully violates the
state's open records policy is subject to both criminal and
civil liability. Id. § 244.17. In contrast, subject to certain
enumerated exceptions, the Driver’s Privacy Protection
Act of 1994 (DPPA), Pub.L. No. 103-322, 108 Stat.
2099-2102 (effective Sept. 13, 1997) (codified at 18 U.S.C.
§§ 2721-2725), prohibits a state motor vehicle department
from knowingly disclosing “personal information” about
any individual obtained “in connection with a motor
vehicle record.” 18 U.S.C. § 2721(a). The DPPA authorizes
the Attorney General to assess a civil fine of up to $5,000
a day against any state motor vehicle department that
“has a policy or practice of substantial noncompliance”
with the DPPA. Id. § 2723(b). The DPPA also provides for
criminal fines and civil damages against any person who
knowingly violates its provisions. Id. §§ 2723(a) & 2724.

The state of Oklahoma filed suit challenging the
DPPA on its face as an unconstitutional infringement

upon state sovereignty. The question presented is
whether the DPPA is a valid exercise of congressional

a Tn a Ta ee

App. 3

power to which contrary state law must yield consistent
with constitutional principals of federalism and the Tenth
Amendment'’s reservation to the States of all “powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States.” U.S. Const. amend. X.

To protect the personal privacy and safety of licensed
drivers, see 138 Cong. Rec. H1785-01, Congress enacted
the DPPA which restricts the ability of third parties to
obtain personal information about individuals identified
in the records of state motor vehicle departments. The
first section of the DPPA provides:

(a) In general. — Except as provided in subsec-
tion (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 infor-
mation about any individual obtained by the
department in connection with a motor vehicle
record.

18 U.S.C. § 2721(a).! Subsection (b) of § 2721 requires a
State to disclose personal information in limited

' The DPPA defines “motor vehicle record” as “any record
that pertains to a motor vehicle operator’s permit, motor vehicle
title, motor vehicle registration, or identification card issued bya
department of motor vehicles.” The DPPA defines “personal
information” as that which “identifies an individual, including
an individual’s photograph, social security number, driver
identification number, name, address (but not the 5-digit zip
code), telephone number, and medical or disability information,
but does not include information on vehicular accidents, driving
violations, and driver’s status.” 18 U.S.C. § 2725(1) & (3).

App. 4

situations to carry out the purposes of federal and state
laws affecting motor vehicles. Subsection (b) also sets
torth fourteen exceptions to subsection (a)’s general pro-
hibition, each of which allow a state motor vehicle
department, in its discretion, to disclose personal infor-
mation in certain instances. Id. § 2721(b). Perhaps the
most notable of these is exception eleven, which is an
opt-out provision allowing a state to disclose an individ-
ual’s motor vehicle record -

if the motor vehicle department has provided in
a clear and conspicuous manner on forms for
issuance or renewal of operator’s permits, titles,
registrations, or identification cards, notice that
personal information collected by the depart-
ment may be disclosed to any business or per-
son, and has provided in a clear and
conspicuous manner on such forms an oppor-
tunity to prohibit such disclosures.

Id. § 2721(b)(11).?

.

In its complaint, the state of Oklahoma sought declar-
atory and injunctive relief, asking the district court to
declare the DPPA unconstitutional and enjoin its enforce-
ment. According to the state, the DPPA impairs the state’s
ability to manage its motor vehicle records by directing
the state to regulate the disclosure of motor vehicle infor-
mation in a specific manner. The state contends the DPPA
unconstitutionally “commandeers” the functioning of its

* The DPPA also places restrictions on the manner in which
third parties may use, sell, or otherwise re-disclose personal
information obtained pursuant to the DPPA’s exceptions. 18
U.S.C. § 2721(c).

———EEE——

App. 5

motor vehicle department by requiring the state to regu-
late a federal program. The United States defends the
DPPA on the basis that it does not direct the state to
regulate a federal program; rather the DPPA directly reg-
ulates the disclosure of state motor vehicle information
consistent with constitutional principles of federalism
and the Tenth Amendment.

The district court granted the state’s requested relief
and permanently enjoined the United States from enforc-
ing the DPPA in Oklahoma. The district court held that
the DPPA constituted an unconstitutional “command to
State governments to implement legislation enacted by
Congress.” Oklahoma v. United States, 994 F.Supp. 1358,
1363 (W.D.Okla.1997). The court reasoned:

The State of Okiahoma processes approximately
1 million requests for motor vehicle information
annually. .. . The system set forth in the DPPA
would require Oklahoma to train . . . [Oklahoma
Department of Public Safety] employees and the
employees in approximately 270 tag agencies
across the State on when and how records may
be released. Additionally, the State would be
required to monitor the tag agents to ensure
their compliance with the federal standards.

Id. at 1362. According to the district court, the DPPA
unlawfully required the state of Oklahoma to create and
maintain a system to enforce an unfunded federal man-
date. Id. at 1363. Our jurisdiction to review the district
court’s judgment arises under 28 U.S.C. § 1291. We
review de novo the district court’s determination of the
DPPA’s constitutionality, United States v. Bolton, 68 F.3d
396, 398 (10th Cir.1995), and reverse.

App. 6

In determining whether an Act of Congress is consti-
tutional on its face, we afford the legislation great defer-
ence. Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69
L.Ed.2d 478 (1981). We begin with the presumption that
the challenged statute is constitutional. INS v. Chadha, 462
U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). We do
not question the wisdom of the statute. Id. “Once the
meaning of an enactment is discerned and its constitu-
tionality determined, the judicial process comes to an
end.” TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57
L.Ed.2d 117 (1978).

Ascertaining the constitutional line between federal
and state power is among the most difficult judicial tasks.
The Constitution confers certain enumerated powers
upon Congress. U.S. Const. Art. I. To the extent the
Constitution does not divest the states of certain powers,
they retain them. Thus, the Tenth Amendment “states but
a truism that all is retained which has not been surren-
dered.” United States v. Darby, 312 U.S. 100 124, 61 S.Ct.
451, 85 L.Ed. 609 (1941). To be sure, states retain a signifi-
cant amount of sovereign authority. See Garcia v. San
Antonio Metropolitan Transit Auth., 469 U.S. 528, 549, 105
S.Ct. 1005, 83 L.Ed.2d 1016 (1985). How much remains
uncertain. We therefore look to existing Supreme Court
precedent tor guidance as to the proper division between
tederal and state authority.

A.

To support its argument that the DPPA is unconstitu-

tional, the state of Oklahoma relies principally on New

App. 7

York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120
L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 98,
117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Both New York and
Printz set aside Acts of Congress on Tenth Amendment
grounds. The state argues that New York and Printz estab-
lish a broad prohibition against federal restrictions aimed
exclusively at state activity — a prohibition which, accord-
ing to the state of Oklahoma, sounds the death knell of
the DPPA.

In New York, the Court addressed the constitu-
tionality of the “take title” provision of the Low-Level
Radioactive Waste Policy Amendments Act of 1985. That
provision directed state legislatures either to enact laws
regulating the disposal of low level nuclear waste pro-
duced within their borders, or to take title to and posses-
sion of such waste with all its accompanying liability and
problems. A state’s failure to “choose” either alternative
would result in the state becoming liable for all damages
waste generators suffered as a result of the state’s inac-
tion. The Court held that the provision was inconsistent
with the division of authority between state and federal
governments because it commandeered the states’ legisla-
tive process by compelling them to enact or administer a
federal regulatory program. Id. at 174-177, 112 S.Ct. 2408.
In other words, the law effectively required states either
to legislate pursuant to Congress’ direction, or to imple-
ment an administrative solution. The Court emphasized
that a state could not decline to administer the program.

No matter which alternative the state chose, it was com-
pelled to follow Congress’ mandate. Id. at 176-77, 112
S.Ct. 2408. The Court concluded:

App. 8

No matter how powerful the federal interest
involved, the Constitution simply does not give
Congress the authority to require the States to
regulate. The Constitution instead gives Congress
the authority to regulate matters directly and to pre-
empt contrary state regulation. Where a federal
interest is sufficiently strong to cause Congress
to legislate, it must do so directly; it may not
conscript state governments as its agents.

Id. at 178, 112 S.Ct. 2408 (emphasis added).

Subsequent to New York, the Court again addressed
the proper division between state and federal authority in
Printz. Printz involved the constitutionality of certain
interim provisions of the Brady Handgun Violence Pre-
vention Act. Those provisions directed state and local law
enforcement officials to conduct background checks and
pertorm other tasks related to prospective handgun pur-
chasers. Relying on historical practice, the structure of
the Constitution, and its prior decisions, a sharply
divided Court held that the forced participation of a
state’s executive officers in the actual administration of a
federal program, albeit only temporarily, was unconstitu-
tional. Printz, 521 U.S. at ___, 117 S.Ct. at 2384. The Court
concluded:

We held in New York that Congress cannot com-
pel the States to enact or enforce a federal regu-
latory program. Today we hold that Congress
cannot circumvent that prohibition by conscript-
ing the State’s officers directly. The Federal Gov-
ernment may neither issue directives requiring
the States to address particular problems, nor
command the States’ officers, or those of their
political subdivisions, to administer or enforce a

App. 9

federal regulatory program. . . . [S]uch com-
mands are fundamentally incompatible with our
constitutional system of dual sovereignty.

Id. at 2384.

B.

The United States asserts that New York and Printz do
not prohibit Congress from imposing restrictions directly
on state activity; rather they only prohibit Congress from
requiring states to enact or administer a federal regula-
tory program designed to address problems created by
third parties. The United States argues that the DPPA is
constitutional because it regulates state motor vehicle
departments by directing them to comply with federal
law. The DPPA does not require states or their agents to
regulate third parties by directing states to enforce fed-
eral law. Citing South Carolina v. Baker, 485 U.S. 505, 108
S.Ct. 1355, 99 L.Ed.2d 592 (1988), the United States sug-
gests the Tenth Amendment poses no bar to federal legis-
lation which regulates state activity directly.

Baker addressed the constitutionality of § 310(b)(1) of
the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA), which removed from federal income tax exemp-
tion interest earned on bearer bonds issued by state and
local governments. The question was whether § 310(b)(1)
violated the Tenth Amendment by compelling states to
issue bonds in registered form. Baker, 485 U.S. at 507-08,
108 S.Ct. 1355. Treating § 310(b)(i) as if it directly regu-
lated the states by prohibiting the issuance of bearer
bonds, the Court rejected South Carolina’s argument that
the law was invalid because it commandeered the state

fete mr A i mA tema

App. 10

legislative and administrative process by requiring states
to enact legislation authorizing and administering bond
registration. Id. at 513, 108 S.Ct. 1355. The Court rea-

soned:

Such ‘commandeering’ is... an inevitable con-
sequence of regulating a state activity. Any fed-
eral regulation demands compliance. That a
State wishing to engage in certain activity must
take administrative and sometimes legislative
action to comply with federal standards regulat-
ing that activity is a commonplace that presents
no constitutional defect.

Id. at 514-15, 108 S.Ct. 1355. With this background in

mind, we turn to a discussion of the DPPA.

Il.

Relying on New York and Printz, a divided panel of
the Fourth Circuit recently held that because the DPPA
was not a “generally applicable law,” “Congress did not
have authority under our system of dual sovereignty to
enact it.” Condon v. Reno, 155 F.3d 453, 463 (4th Cir.1998),
petition for rehearing filed October 16, 1998.* In Condon, the
Fourth Circuit read Garcia v. San Antonio Metropolitan
Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016
(1985), and its progeny (including Baker) to stand for the
proposition, purportedly endorsed in New York and

} On October 22, 1998, the Fourth Circuit ordered Plaintiffs
Condon and South Carolina to respond to the United States’
petition for rehearing with suggestion for rehearing en banc.
Plaintiffs filed their response on November 3, 1998. As of
today’s date, the United States’ petition remains pending.

App. 11

Printz, that Congress may only regulate the conduct of
state governments through laws of general applicability.
Condon, 155 F.3d at 461-62 & n. 5.4 According to the
Fourth Circuit, Congress may not regulate “States as
States.” Rather, “Congress may only subject states to leg-
islation that is also applicable to private parties.” Id. at
461 (citing New York, 505 U.S. at 160, 112 S.Ct. 2408).
Because the DPPA regulated only the disclosure of infor-
mation contained in state motor vehicle records and did
not regulate the disclosure of personal information con-
tained in private databases, the DPPA, like the laws in
New York and Printz, could not withstand Tenth Amend-
ment scrutiny. Condon 155 F.3d at 460-63.°

In his dissent, Judge Phillips rejected the majority's
conclusion that Congress lacks any authority to regulate

4In Garcia, the Court overruled the “traditional
governmental functions” test established in National League of
Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976),
and held that application of the Fair Labor Standards Act to
state and local governments did not unconstitutionally infringe
upon state sovereignty. The Court declined, however, “to
identify or define what affirmative limits the constitutional
structure might impose on federal action affecting States under
the Commerce Clause.” Garcia, 469 U.S. at 556, 105 S.Ct. 1005
See also EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75
L.Ed.2d 18 (1983) (upholding application of the ADEA to the
States).

° The question of the DPPA’s constitutionality currently is
pending in the Seventh and Eleventh Circuits. Travis v. Reno, 12
F.Supp.2d 921 (W.D.Wis.) (holding the DPPA unconstitutional),
appeal docketed, No. 98-2881 (7th Cir., filed July 27, 1998); Pryor v.
Reno, 998 F.Supp. 1317 (M.D.Ala.) (holding the DPPA
constitutional), appeal docketed, No. 98-6261 (11th Cir., filed April
2, 1998).

ieee tN

App. 12

the “States as States.” Id. at 469 (Phillips, J., dissenting).
According to Judge Phillips, the legislation at issue in
Garcia and subsequent cases relied on by the court “was
immune to Tenth Amendment challenge not so much-if at
all-because it applied equally to state and private actors
as because it directly regulated state activities rather than
using the ‘States as implements of regulation’ of third
parties.” Id. at 468 (quoting New York, 505 U.S. at 160, 112
S.Ct. 2408). In regulating states that choose to release
motor vehicle information to the public, Congress simply
exercised its power of preemption by requiring states to
release such information into the stream of commerce in a

manner Congress deemed appropriate.

Like Judge Phillips, we do not read Supreme Court
precedent as establishing a blanket rule that “Congress
may only subject state governments to generally applica-
ble law.” Condon, 155 F.3d at 461 (internal quotations
omitted). The Supreme Court has never suggested that
the Tenth Amendment bars Congress from regulating
state conduct merely because states are the only actors

engaged in certain activity.

Surely it is no basis for invalidating [the
DPPA]. .. that no private equivalent could be
found in the particular area of regulation.
Would the requirements of the DPPA really be
any less intrusive on state sovereignty interests
if they were part of broad privacy protections
involving private as well as public holders of
sensitive information?

Id. at 469 (Phillips, J., dissenting).

PS JEL EAD EEA

j

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ED

App. 13

To be sure, the Supreme Court has noted a logical
distinction between generally applicable laws, which inci-
dentally apply to states, and laws compelling States to
legislate or regulate in accordance with federal law.
Printz, 521 U.S. at ___, 117 S.Ct. 2365; New York, 505 U.S.
at 160, 112 S.Ct. 2408. Oppressive federal regulation that
“commandeers” a state’s sovereign functions is less likely
to arise where the law is aimed at both private and public
entities. This is so because generally applicable laws are
not aimed at uniquely governmental functions. Moreover,
laws affecting both private and public interests are sub-
ject to stricter political monitoring by the private sector.
See Vicki C. Jackson, Federalism and the Uses and Limits of
Law: Printz and Principle?, 111 Harv.L.Rev. 2180, 2207
(1998).

The Supreme Court’s “anticommandeering”
approach in New York and Printz reflects a legitimate
concern about federal government interference with state
government functions. But the arguments against the
DPPA are much less compelling than the arguments
against the statutes at issue in New York and Printz.
Unlike the federal statute in New York, the DPPA does not
commandeer the state legislative process by requiring
states to enact legislation regulating the disclosure of
personal information from motor vehicle records. Rather,
the DPPA directly regulates the disclosure of such infor-
mation and preempts contrary state law. See New York, 505
U.S. at 178, 112 S.Ct. 2408. If states do not wish to comply
with those regulations, they may stop disseminating
information in their motor vehicle records to the public.
In contrast, the statute in New York offered no such alter-
native to the states.

App. 14

Unlike the federal statute in Printz, the DPPA does
not conscript state officials to enforce federal law. Under
the DPPA, enforcement is the job of federal officials.
Unlike New York and Printz, the DPPA does not affect any
unique government function, such as the state legislative
process or state law enforcement activities. The dissem-
ination of personal information into the stream of com-
merce can in no sense be considered uniquely
governmental. See e.g., Fair Credit Reporting Act, 15
U.S.C. § 1681b; Video Privacy Protection Act, 18 U.S.C.
§ 2710. The DPPA neither limits a state’s ability to regu-
late in the field of automobile licensing and registration,
an exercise traditionally left to the states, nor restricts a
state’s ability to use motor vehicle information in its own
regulatory activities.

Our conclusion that the DPPA differs from the stat-
utes at issue in New York and Printz is buttressed by the
Supreme Court’s decision in Baker. The only provision of
TEFRA at issue in Baker was § 310(b)(1), which removed
the federal tax exempt status for bearer bonds issued by
state and local entities. Consequently, the provision
imposed a burden only on state and local governments.
In upholding § 310(b)(1), Baker rejected the notion that
the federal government may never force a state wishing
to engage in certain activity to take administrative or
legislative actions to comply with federal standards. 485
U.S. at 514-15, 108 S.Ct. 1355. In fact, the Court referred to
federal regulation of state activity as “a commonplace
that presents no constitutional defect.” Id. at 515, 108
SA. 1585.

In enacting the DPPA, Congress obviously curtailed
states’ prerogative to make choices respecting the release

——y a i i

App. 15

of motor vehicle information. No one claims that Con-
gress exceeded the scope of its power under the Com-
merce Clause in so doing. Nor has the Supreme Court
ever suggested that Congress impermissibly invades
areas reserved to the states under the Tenth Amendment
because it exercises its preemptive authority under the
Commerce Clause in a manner that displaces state law
and policy to some extent. The DPPA simply requires
states to make a choice, i.e. stop releasing personal infor-
mation from state motor vehicle records to the public, or
release such information consistent with the dictates of
the DPPA. See FERC v. Mississippi, 456 U.S. 742, 767-68 n.
30, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) (upholding fed-
eral legislation that gave States “a choice between regu-

lating in conformity with federal requirements, or
abandoning regulation in a given field”).

While we are cognizant of the Supreme Court's trend
established by New York and Printz of striking down
federal legislation which “commandeers” state legislative
and administrative processes, the Court has yet to hold
that a federal law, which directly regulates state activity
and necessitates some state legislative or administrative
action to achieve compliance, amounts to unconstitu-
tional “commandeering.” If a precedent of the Supreme
Court (in this case Baker) “has direct application in a case,
yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case
that directly controls, leaving to . . . [the Supreme Court]
the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).
Finding the logic in Baker controlling, we believe that any

App. 16

expansion of Tenth Amendment jurisprudence to invali-
date the DPPA is best left to the Supreme Court. At this
stage in Tenth Amendment jurisprudence, we find noth-
ing that requires us to invalidate the DPPA. We hold that
the DPPA constitutes a valid exercise of congressional
power.° The judgment of the district court is

REVERSED.

© Because we conclude that the DPPA does not violate the
Tenth Amendment, we need not address the United States’
alternative argument that the DPPA may also be upheld as a
legitimate exercise of congressional power under § 5 of the
Fourteenth Amendment.

App. 17

Attachment A: Order and Judgment being reviewed
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, ex rel.,
THE OKLAHOMA DEPARTMENT
OF PUBLIC SAFETY,

"1V-97-1423-
Plaintiff, CIV-97-1423-R

)
)
)
)
)
V. ) (Filed Sep. 17, 1997)
)
)
)
)

THE UNITED STATES OF
AMERICA,

Defendant.

ORDER

This matter comes before the Court on the Applica-
tion for Preliminary Injunction, filed by Plaintiff, the State
of Oklahoma (“Oklahoma”), ex rel. the Department of
Public Safety (“DPS”). Plaintiff seeks an injunction pro-
hibiting Defendant, the United States of America, from
enforcing the Driver’s Privacy Protection Act of 1994
(“DPPA” or “the Act”), P.L. 103-322, §§ 300001-300003,
which was scheduled to take effect on September 13,
1997. Plaintiff contends that the Act, codified at 18 U.S.C.
§§ 2721-25 is unconstitutional. On September 15, 1997, the
Court issued an Order, wherein it granted Plaintiff’s
requested relief, noting that further elaboration would
follow. This Order disposes of all matters before the
Court.!

' The parties agreed that the Court’s decision with regard
to the preliminary injunction should also serve as a decision on

App. 18

BACKGROUND

The DPPA regulates the dissemination and use of
“personal information” contained in state motor vehicle
records.* Congress enacted the DPPA in 1994, alleging
concern for a perceived national problem, the widespread
availability of personal information from state motor
vehicle records. Congress enacted the DPPA in part to
combat the commercial practice of selling information
obtained via driver's license applications and motor vehi-
cle records. Congress also heard testimony that stalkers
and other criminals have used motor vehicle information
to locate their victims.

The DPPA took effect on September 13, 1997, and
prohibits “a State department of motor vehicles, and any

the merits of the action. 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. Therefore, the Court shall treat this as a
resolution on the merits.

The Court also notes that although this is a case of first
impression in both this district and this circuit, on September 11,
1997, the United States District Court for the District of South
Carolina, Columbia Division, the Honorable Dennis Shedd,
ruled that the DPPA violates the Tenth Amendment of the
United States Constitution.

* Under the DPPA, “ ‘personal information’ means
information that identifies an individual, including an
individual’s photograph, social security number, driver
identification number, name, address (but not the 5-digit zip
code), telephone number, and medical or disability information,
but does not include information on vehicular accidents,
driving violations, and driver's status.” 18 U.S.C. § 2725.

OC —— ,

App. 19

officer, employee, or contractor, thereof, [from] know-
ingly disclos[ing] or otherwise mak[ing] available to any
person or entity personal information about any individ-
ual obtained by the department in connection with a
motor vehicle record.” 18 U.S.C. § 2721(a).3 This prohibi-
tion, however, is not absolute. The DPPA sets forth speci-
fic exceptions to the prohibition. When a request is made
by an appropriate person for an appropriate purpose, as
defined by the statute, the state may disclose personal
information. 18 U.S.C. § 2721(b)(1)-(14).4 Additionally,

[a] State motor vehicle department may estab-
lish 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

* The DPPA defines “motor vehicle record” as “any record
that pertains to a motor vehicle operator’s permit, motor vehicle
title, motor vehicle registration, or identification card issued by
a department of motor vehicles.” 18 U.S.C. § 2725(1).

* The permissible exceptions permit disclosure for use by
government agencies, for use in connection with motor vehicle
safety and theft, emissions, recalls, advisories, market research
activities, for use by a legitimate business to verify the accuracy
of personal information submitted by employees or contractors,
for use in court or administrative proceedings, for use in
research, so long as not published, for use by insurers, for use in
providing notice to owners of towed vehicles, for use by private
investigators, so long as the intended use is also permissible, for
use by employer or insurer with regard to commercial drivers’
license, for use in connection with the operation of private toll
facilities, for use by a requester who has the written consent of
the person whose information is sought and for any use
authorized by the State that holds the record, if the use relates to
the operation of a vehicle or public safety.

App. 20

(b), may mail a copy of the request to the indi-
vidual 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

18 U.S.C. § 2721(d).

Prohibitions and limitations also extend to those per-
sons who seek or receive information from state motor
vehicle records. “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.” 18 U.S.C. § 2722(a).
Furthermore, “[i]t shall be unlawful for any person to
make false representation to obtain any personal informa-
tion from an individual's motor vehicle record.” 18 U.S.C
§ 2722(b).

Violation of the DPPA by either a State or Individuals
carries a price. “A person who knowingly violates this
chapter shall be fined under this title.” 18 U.S.C.
§ 2723(a).° Civil remedies, including actual and punitive
damages, as well as attorneys’ fees, are available against
any person who knowingly violates the Act. 18 U.S.C.
§ 2724. Furthermore, “[a]ny State department of motor
vehicles that has a policy or practice of substantial non-
compliance with this chapter shall be subject to a civil
penalty imposed by the Attorney General of not more

° “Person” is defined by the Act as “an individual,
organization or entity, but does not include a State or agency
thereof.” 18 U.S.C. § 2725(2).

App. 21

than $5,000 a day for each day of substantial noncom-
pliance.” 18 U.S.C. § 2723(b).

Oklahoma law currently provides that motor vehicle
| records are public record. The Department of Public
Safety is required by Okla. Stat. tit. 47 § 6-117 to retain
and file every application for a license it receives. It must
note whether the application is granted or denied; and if
denied, the basis thereof. All suspensions and revocations
of licenses must be recorded, along with the reason for
such action.

The Department of Public Safety or any motwi
license agent upon request shall prepare and
furnish a summary to any person of the traffic
record of any person subject to the provisions of
the motor vehicle laws of this state. Said sum-
mary shall include the enumeration of any
motor vehicle accidents, reference to convictions
for violations of motor vehicle laws, and any
action taken against the person’s privilege to
operate a motor vehicle, as shown by the files of
the Department for the three (3) years preceding
the date of the request.

Okla. Stat. tit. 47 § 6-117(H). Motor vehicle records are
also covered by the Oklahoma Open Records Act, which
requires public access and imposes criminal penalties and
civil liability on those public officials and public bodies
who fail to comply. Okla. Stat. tit. 51 § 24A.17. Oklahoma
law conflicts, in many regards, with the DPPA.®

© During the September 12, 1997 hearing, the United States
asserted that the State of Oklahoma lacks standing to challenge
the DPPA, because the DPPA does not conflict with Oklahoma
law. Defendant contends that Oklahoma law does not mandate

App. 22

Oklahoma challenges the constitutionality of the
DPPA, arguing that it violates the Tenth Amendment, the
Eleventh Amendment, and that Congress has exceeded
the scope of its authority under the Commerce Clause.
The Court finds that the DPPA violates that [sic] Tenth
Amendment, and therefore no reason exists for the Court
to consider Plaintiff's alternative arguments at this time.
See Clinton v. Jones, 117 S.Ct. 1636, 1642 n. 11 (1997); New
York v. United States of America, 505 U.S. 144, 184 (1992).

DISCUSSION

Whenever called upon to judge the constitu-
tionality of an Act of Congress — ‘the gravest
and most delicate duty that this Court is called
upon to perform,’ Blodgett v. Holden, 275 US.
142, 148 [48 S.Ct. 105, 107, 72 L.Ed. 206] (1927)
(Holmes, J.) - the Court accords ‘great weight to
the decisions of Congress.’ Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412

the disclosure of information that must, under the terms of the
DPPA, remain confidential. The Court notes, however, that
based on the testimony of Bill Bruce, that the disclosure of
certain items, such as drivers’ license applications, would result
in the disclosure of a person’s address, which is personal
information protected by the DPPA. Additionally, revealing a
motor vehicle record, which can be obtained by providing a
person’s name and date of birth, would result in violation of the
DPPA, because the person’s driver’s license number would be
revealed. In some instances revealing the driver’s license
number is also revelation of the person’s social security number,
as often they are one in the same. Either way, the DPPA would
be violated. The United States’ argument that Oklahoma law
does not directly conflict with the DPPA is without merit; and
the Court finds that the State has standing to pursue this action.

App. 23

U.S. 94, 102 [93 S.Ct. 2080, 2086, 36 L.Ed.2d 772]
(1973). The Congress is a coequal branch of gov-
ernment whose Members take the same oath we
do to uphold the Constitution of the United
States. As Justice Frankfurter noted in Joint Anti-
Fascist Refugee Committee v. McGrath, 341 U.S.
123, 164 [71 S.Ct. 624, 644, 95 L.Ed. 817] (1951)
(concurring opinion), “we must have due regard
to the fact that this Court is not exercising a
primary judgment but is sitting in judgment
upon those who also have taken the oath to
observe the Constitution and who have the
responsibility for carrying on government.”

Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69
L.Ed.2d 478 (1981). Loyal to this obligation, the Court
presumes that the challenged statute is valid. I.N.S. v.
Chadha, 462 U.S. 919, 944 (1983).

The State of Oklahoma contends that Congress has
exceeded its authority and thereby violated the Tenth
Amendment in enacting the DPPA, because the Act man-
dates that States invoke a federal regulatory scheme with
regard to their own records.” The State relies on two
opinions of the Supreme Court in support of its argu-
ments, New York v. United States, 505 U.S. 144, 112 S.Ct.
2408, 120 L.Ed. 120 (1992) and Printz v. United States, __
U.S. __, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). In both of
these cases, the Supreme Court held statutes unconstitu-
tional as violative of the 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.”

App. 24

The United States contends that these cases are inap-
plicable, and steers the Court toward three other
Supreme Court cases, Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985); South Carolina v. Baker, 485 U.S.
505 (1988); and E.E.O0.C. v. Wyoming, 460 U.S. 226 (1983).
The United States argues that the Act does not violate the
principles of dual sovereignty, but rather than the Act is
mere direct regulation of those States that choose to dis-
seminate personal information. Expectedly, the State con-
tends that these cases are inapposite and not controlling.
The Court concurs with the State and finds that New York
and Printz are controlling.

In New York, the Supreme Court considered the con-
stitutionality of Congressional regulation of radioactive
waste, undertaken in certain provisions of the Low-Level
Radioactive Waste Policy Amendments of 1985. The
Court agreed that Congress possessed the authority
under the Commerce Clause® to regulate the interstate
waste disposal market; however, the Court found that the
manner chosen for such regulation exceeded congres-
sional authority under the Tenth Amendment. The Court
found that Congress impermissibly sought to use States
as implements of regulation.

“No matter how powerful the federal interest
involved, the Constitution simply does not give Congress
the authority to require the States to regulate.” Id. at 178.
After examining its prior cases involving federal encour-
agement of state action, including FERC v. Mississippi, 456

® The Commerce Clause provides that Congress has the
power “[t]o regulate Commerce . . . among the several States.”
Art. I., § 8, cl. 3.

OO

App. 25

U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982), and Hodel
v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452
U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), the
Court held that a particular provision in the law under
consideration was unconstitutional, because it attempted
to employ the state government as a federal regulatory
agency. The law did not merely provide encouragement,
it mandated, by providing a Hobson’s choice, that State’s
participate in the federal regulatory scheme.? The same
can be said here.

The Supreme Court relied in large part on the intent
of the Framers of the Constitution, who chose a system by
which “Congress would exercise its legislative authority
directly over individuals rather than over States.” Id., at
165. “[E]ven where Congress has the authority under the
Constitution to pass laws requiring or prohibiting certain
acts, it lacks the power directly to compel the States to

* The Court ruled that the “take title” provision of the act
was unconstitutional under the Tenth Amendment, and noted
the following.

The take title provision offers state governments a
‘choice’ of either accepting ownership of waste or
regulating according to the instructions of
Congress. . . . Because an instruction to state
governments to take title to waste, standing alone,
would be beyond the authority of Congress, and
because a direct order to regulate, standing alone,
would also be beyond the authority of Congress, it
follows that Congress lacks the power to offer the
States a choice between the two. ... A choice between
two unconstitutionally coercive regulatory
techniques is no choice at all.

Id., at 175-76.

|

App. 26

require or to prohibit those acts.” Id. Congress may
encourage States to regulate in a particular manner and
may offer incentives to do so; however, it may not coerce
States.

The Court continued by noting that Congress has
authority under the Commerce Clause to regulate private
activity and may offer States the choice of regulating
according to federal standards or having their lesser stan-
dards preempted. This authority allowed Congress to
enact legislation such as the Clean Water Act, 33 U.S.C.
§§ 1251-1387, the Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651-678, and the Resource Conserva-
tion and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987. Id.
at 168. The Court explained that Congress may regulate
in this manner, because States are left with a choice as to
whether or not they will comply by enacting their own
regulations, based on Federal standards, or whether their
less stringent regulations will be trumped. However,
under the DPPA, States are not given any choice. They
must comply or face fines from the Attorney General.

The DPPA requires both that States comply with the
confidentiality requirements, and that States put in place
methods for ensuring that information is not provided
improperly. The only method for avoiding the adminis-
trative entanglement created by the DPPA, is to “opt-out”
under § 2721(b){11) and (b)(12), both of which require
that the State ensure that every person applying for or
renewing a license or title registration be given the
opportunity to prevent disclosure of personal informa-
tion. The State of Oklahoma processes approximately 1
million requests for motor vehicle information annually,
and few of these requests, if any, are for bulk information.

App. 27

The system set forth in the DPPA would require Okla-
homa to train DPS employees and the employees in
approximately 270 tag agencies across the State on when
and how records may be released. Additionally, the State
would be required to monitor the tag agents to ensure
their compliance with the federal standards.

Unlike the cases cited by the United States, the DPPA
is not a law of general applicability, such as the Fair
Labor Standards Act, Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985), the Tax Equity and Fiscal
Responsibility Act of 1982, South Carolina v. Baker, 485
U.S. 505 (1988), or the Age Discrimination in Employment
Act, E.E.0.C. v. Wyoming, 460 U.S. 226 (1983). The United
States argues that the law applies to both States and to
persons receiving information from motor vehicle
records, and therefore, the law is one of general appli-
cability. However, even cursory review of the statute
indicates that it is directed at States. The first sentence
states that the Act applies to “a State department of
motor vehicles, and any officer, employee, or contractor
thereof.” Although the law also prevents individuals
from disseminating information received from the State,
the law is directed not at the individuals, but at the State.

The DPPA is, like the statutory provision at issue in
New York, “a simple command to state governments to
implement legislation enacted by Congress. As we have
seen, the Constitution does not empower Congress to
subject state governments to this type of instruction.” Id.,
at 176. The options given to States under the DPPA are
riot truly options. “A State may not decline to administer
the Federal Program. No matter which path the State
chooses, it must first follow the direction of Congress.”

App. 28

As noted by the State of Oklahoma, the Department of
Public Safety Employees and the tag agents authorized by
the State of Oklahoma are, under the DPPA, conscripted
by the federal government for purposes of enacting the
DPPA. As shown in New York, this is impermissible. Id. at
178.

The State of Oklahoma also relies on Printz, wherein
the Supreme Court held that certain provisions of the
“Brady Act,” directed at handgun control, exceeded Con-
gress’ authority under the Tenth Amendment. The “Brady
Act” temporarily required the chief law enforcement offi-
cer (“CLEO”) of certain locales to assist in the processing
of permits for gun ownership. Upon receipt of a “Brady
form,” CLEOs were required to make efforts to determine
whether the proposed sale was lawful.

The Court again turned to its history and the Framers
for consideration of the interplay between the dual sover-
eignties of Federal and State government. The Court con-
cluded, as it had in New York, that “[t]he Federal
Government may not compel the States to implement, by
legislation or by executive action, federal regulatory pro-
grams. Id., at 2380 (emphasis added).

In Printz, the United States argued that it was per-
missible for Congress to command state officials to assist
in implementing federal law, so long as Congress does
not compel States to make laws in their sovereign capaci-
ties. Id. The Supreme Court rejected the argument, as
does this Court. “The federal Government may neither
issue directives requiring States to address particular
problems, nor command the States’ officers, or those of
their political subdivisions to administer or enforce a

App. 29

federal regulatory program.” Id. at 2384. This, however, is
exactly what the DPPA attempts to do. It requires State
motor vehicle agencies to create and maintain systems to
enforce the federal law of non-disclosure. The DPPA falls
squarely within the prohibitions of Printz.

The United States argues that the DPPA merely
requires that States conform their conduct to federal stan-
dards. States are, under the DPPA, not required to enact
any legislation in order to comply. However, the States
are required to create and implement systems whereby
those persons seeking information for a proper purpose,
as defined by the Federal statute, are permitted access.
The statutory scheme does not allow States any other
manner of compliance and prevents, in many cases, the
dissemination of personal information.

States are not mere political subdivisions of
the United States. State governments are neither
regional offices nor administrative agencies of
the Federal Government. The positions occupied
by state officials appear nowhere on the Federal
Government’s most detailed organizational
chart. The Constitution instead “leaves to the
several states a residuary and inviolable sover-

eignty.’

New York, 505 U.S. at 188 (quoting The Federalist No. 39,
p. 245 (C. Rossiter ed. 1961)). The DPPA however, seeks
to treat the Oklahoma Department of Public Safety as a
subdivision of the United States. The Act, focusing on
information gathered by the State, from its citizens, seeks
to dictate when and to whom information may be
released. The law is not one of general applicability and it

Se ee

App. 30

is not a permissible undertaking given the limitations
imposed on Congress by the Tenth Amendment.

In enacting the DPPA, Congress exceeded its limits
under the Tenth Amendment. The power that Congress
sought to exercise by dictating when and how States may
disclose personal information from driver’s license
records is a power “not delegated to the United States by
the Constitution, nor prohibited by it to the States, [and
such power is therefore] reserved to the States.” U.S.
Const. amend. X. Accordingly, the Act is unconstitutional.

As noted throughout this Order, the State has estab-
lished that if the United States is not enjoined from
enforcing this law, that it will suffer irreparable harm. A
fine of $5,000 per day may be imposed by the Attorney
General if the State has a policy of releasing information
that is not in substantial compliance with the DPPA. The
State has established that its laws conflict with the DPPA,
and that following its own law would likely result in
imposition of the fine. Given that approximately 95,000
records are disseminated from over 270 sites across the
state each month, the harm that Oklahoma would suffer
without an injunction is great. The United States pre-
sented no evidence to rebut the testimony of Bill Bruce,
and the Court finds that Oklahoma is entitled to an
injunction on this basis.

The sole remaining elements are whether the injunc-
tion would substantially injure the United States, and
whether the public interest would be furthered by the
imposition of an injunction. Tri-State Generation and Trans-
mission Ass’n, Inc. v. Shoshore River Power, Inc., 805 F.2d
351, 355 (10th Cir. 1986) (citing Lundgrin v. Claytor, 619

App. 31

F.2d 61, 63 (10th Cir. 1980)). In responding to the Applica-
tion, Defendant does not contradict the State’s assertions
that the United States will not be injured by the imposi-
tion of any injunction. It contends, however, that Okla-
homa fails to establish that the public interest will be
furthered by imposition of an injunction. Defendant
argues that in light of the testimony presented to Con-
gress that murderers and other criminals use motor vehi-
cle records to locate victims, that the public interest will
be negatively impacted by imposition of an injunction.
The Court finds, however, that the public interest in the
sovereignty of the State and in access to records under
Oklahoma statute will be served by imposition of an
injunction.

CONCLUSION

For the reasons stated herein, the Court finds that the
DPPA violates the Tenth Amendment of the United States
Constitution, as it exceeds the scope of Congress’ author-
ity. Accordingly, Plaintiff’s request for permanent injunc-
tive relief is hereby GRANTED.

It is so ordered this 17th day of September, 1997.

/s/ David L. Russell
DAVID L. RUSSELL
CHIEF UNITED STATES DISTRICT JUDGE

App. 32

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, ex rel.,
THE OKLAHOMA DEPARTMENT
OF PUBLIC SAFETY,

Plaintiff, CIV-97-1423-R

)

)

)

)

)
¥. ) (Filed
THE UNITED STATES OF ) Sep. 17, 1997)
AMERICA,

)

)

Defendant.

JUDGMENT

Judgment is hereby entered in favor of Plaintiff.

It is so ordered this 17th day of September, 1997.

/s/ David L. Russell
DAVID L. RUSSELL
CHIEF UNITED STATES
DISTRICT JUDGE

ENTERED ON JUDGMENT
DOCKET ON 9-17-97

EEE ——E——

App. 33

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

STATE OF OKLAHOMA, ex rel
Oklahoma Department of

Public Safety, No. 97-6389
Plaintiff-Appellee, (D.C. No.

‘ CIV-97-1423-R)

(W.D. Okla.)

UNITED STATES OF AMERICA,
Defendant-Appellant.

ee eee eee ee

ORDER ON PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC

(Filed Feb. 2, 1999)

Before ANDERSON, HALLOWAY, and BALDOCK, Cir-
cuit Judges.

Before the court is Plaintiff State of Oklahoma’s Peti-
tion for Rehearing and Suggestion for Rehearing En Banc.
Also before the court is the Unopposed Motion of Amici
Curiae, The States of Alabama And Wyoming, And Better
Government Bureau, Inc., For Leave To File A Memoran-
dum In Support Of Petition For Rehearing And Sugges-
tion For Rehearing En Banc.

Upon due consideration, the Motion of Amici Curiae,
the States of Alabama and Wyoming, and Better Govern-
ment Bureau is ALLOWED. Upon further consideration
of Plaintiff’s Petition and the Memorandum of Amici

|

App. 34

Curiae, Plaintiff State of Oklahoma’s Petition for Rehear-
ing is DENIED.

In accordance with Fed. R. App. P. 35(b), the clerk
transmitted Plaintiff’s Suggestion for Rehearing En Banc
to all the judges of the court in regular active service. No
member of the panél and no judge in regular active
service having requested a poll on the suggestion for

rehearing en banc, Plaintiff’s suggestion for rehearing en
banc is DENIED.

SO ORDERED.

Entered for the Court,

Bobby R. Baldock
Circuit Judge

EEE —E—

App. 35

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS

No. 98-6261

D.C. Docket No. CV-97-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, 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 collec-
tively as Alabama or “the State”), sought a declaratory
judgment that the Driver’s Privacy Protection Act of

a

App. 36

1994, 18 U.S.C. §§ 2721-25, is unconstitutional under both
the Tenth and Eleventh Amendments to the United States
Constitution, and an injunction prohibiting the defen-
dants 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., regu-
lates the sale, dissemination and use by the State and
private individuals of personal information! contained in
the State’s motor vehicle records.2 The Act prohibits “a
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

1 Section 2725(3) of the act defines personal information as:

information that identifies an individual, including
an individual’s photograph, social security number,
driver identification number, name, address (but not
the five-digit zip code), telephone number, and
medical or disability information, but does not
include information on vehicular accident, driving
violations, and driver’s status.

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

any record that pertains to a motor vehicle operator's
permit, motor vehicle title, motor vehicle registration,
or identification card issued by a department of
motor vehicles.

App. 37

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 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
vehicles with a “policy or practice of substantial noncom-
pliance” 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 Attor-
ney 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 emis-
sions, motor vehicle product alterations, recalls, or advi-
sories, performance monitoring of motor vehicles and
dealers by motor vehicle manufacturers, and removal 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 further provides
that personal 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);

— iii iii

App. 38

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 jn research activities, and for use in
producing statistical reports, so long as the personal
information is not published, redisclosed, or used to con-
tact individuals, id. § 2721(b)(5); for use by ai insurer or
insurance support organization, or by a self-insured
entity, or its agents, employees, or contractors, in connec-
tion with claims investigation activities, anti-fraud activ-
ities, rating or underwriting, id. § 2721(b)(6); for use in
providing notice to owners of towed or impounded vehi-
cles, id. § 2721(b)(7); for use by a licensed private investi-
gative 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. § 27221(b)(9); and for use in connec-
tion with the operation of private toll transportation facil-
ities, 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 redisclosing per-
sonal information for a permissible use keep records for
five years stating to whom they have resold or redis-
closed the information and the purpose of any such

ee

App. 39

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 obtaining
personal information “by false representation,” 18 U.S.C.
§ 2722(b). Individuals who knowingly violate these provi-
sions are subject to criminal fines, 18 U.S.C. § 2723(a), and
private rights of action by the person to whom the per-
sonal 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 pro-
hibit 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 oppor-
tunity to prohibit such disclosures. 18 U.S.C.
§ 2721(b)(12).

Alabama contends that Congress exceeded its author-
ity under the Tenth and Eleventh Amendments when it
enacted the DPPA. The State contends that the DPPA is an
unconstitutional federal directive requiring it to adminis-
ter a federal program in violation of the Tenth Amend-
ment. The State further contends that the penalties
imposed by the Act for noncompliance violate the Elev-
enth Amendment. The United States counters that the Act
is a constitutional exercise of Congress’ power under the

App. 40

Commerce Clause of the United States Constitution to
regulate and control the dissemination of personal infor-
mation 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 Congress’ authority to regulate inter-
state commerce, and that it violates neither the Tenth nor
the Eleventh Amendment. Alabama appeals from the
entry of this judgment.

Il.

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, Ala-
bama contends that the Tenth Amendment prohibits Con-
gress from requiring it to administer a federal program.

1. Congress’ Authority to Enact the DPPA

Alabama argues that Congress exceeded its authority
in regulating the States’ release of motor vehicle informa-
tion because the dissemination of this information is nei-
ther commerce, nor an activity substantially affecting
commerce. Although it is abundantly clear that traffick-
ing in data bases is an activity that substantially affects

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.

App. 41

interstate commerce these days, we are, nonetheless,
sympathetic to this argument. Congress drew its author-
ity 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
legitimate governmental and business uses of such infor-
mation, 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 authority to regulate the
States’ dissemination of personal DMV information lies in
its power to regulate the commercial aspect of this infor-
mation 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 sufficient
connection between this legislation and interstate com-
merce to authorize Congress to enact the DPPA, the Act
violates the Tenth Amendment.

4 During floor debate on the Senate 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 private investigator. See 139 Cong.Rec. $15,766,
Comments of Senator Harkin. See also (Feb. 4, 1994) (statement
of Rep. Moran); 139 Cong.Rec. S15, 762 (Nov. 16, 1993)
(statement of Sen. Boxer); 139 Cong.Rec. S15, 765 (Nov. 16, 1993)
(statement of Sen. Robb); 139 Cong. Rec. S15, 765 (statement of
Sen. Biden).

App. 42

2. 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 Supreme Court
addressed the constitutionality of the Low-Level Radioac-
tive Waste Policy Act which required States to choose
between accepting ownership of radioactive waste gener-
ated within their borders and regulating this waste
according to instructions from Congress. 505 U.S. at 152.
The Court found that this 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
requirements on State chief law enforcement officers
(“CLEOs”) to conduct background checks on prospective
handgun purchasers and to perform related tasks. 117 S.
Ct. at 2368. 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 what-
ever state and local record keeping systems are
available.

App. 43

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 admin-
istration of a federally enacted regulatory scheme. Id. at
2369, 2376. The Court held the requirement violated the
Tenth Amendment because:

[t]he Federal Government may neither issue
directives requiring the States to address partic-
ular problems, nor command the States’ officers,
or those of their political subdivisions, to
administer or enforce a federal regulatory pro-
gram. It matters not whether policymaking is
involved, and no case-by-case weighing of bur-
dens or benefits is necessary; such commands
are fundamentally incompatible with our consti-
tutional 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 iden-
tifying 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 fed-
eral 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 estab-
lishment 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

App. 44

in connection with matters of motor vehicle or driver
safety and theft and to carry out various federal statutes.°
It further provides that personal information may be dis-
closed in fourteen other circumstances. It seeks to regu-
late the circumstances under which private individuals
may obtain this information and to prevent the disclosure
at all in certain instances. No one disputes that Congress,
through the DPPA, has enacted a federal regulatory pro-
gram to control the dissemination and cloaking of the
States’ motor vehicle information.

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 2380-81.

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

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.

App. 45

way. Printz, 117 S. Ct. at 2380. As the Court stated in New
York:

States are not mere political subdivisions of
the United States. State governments are neither
regional offices nor administrative agencies of
the Federal Government. The positions occupied
by state officials appear nowhere on the Federal
Government's most detailed organizational
chart.

505 U.S. at 188.

The United States argues that it is permissible for
Congress to command state officers to assist in the imple-
mentation 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
directs the States or their officials to regulate their citi-
zens, 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 employers
must comply with the federal minimum wage law. Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528

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.

App. 46

(1985). See also South Carolina v. Baker, 485 U.S. 505, 511-15
(1988) (States may be required to issue bonds in regis-
tered form as are private corporations); 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 partic-
ularly strong federal interest permits Congress to bring
state governments within the orbit of generally applicable
federal regulation. Garcia, 469 U.S. at 554 (“San Antonio
faces nothing more than the same minimum-wage and
overtime obligations that hundreds of thousands of other
employers, public as well as private, have to meet”). In
Printz and New York, the Supreme Court distinguished
such laws of general applicability from laws targeted
exclusively at States. 117 S. Ct. at 2383; 505 U.S. at 160.
Although the Tenth Amendment does not automatically
permit the former and proscribe the latter, in the cases
cited above the issue was whether the incidental applica-
tion to the States of federal laws of general applicability
excessively interfered with the functioning of state gov-
ernments. The federal laws at issue were upheld because
the federal interest was strong enough to permit Con-
gress to bring state governments within the orbit of gen-
erally applicable federal regulation.

The Court has made clear, however, that where, as
here, the “whole object of the law [is] to direct the func-
tioning of the state executive, and hence to compromise
the structural framework of dual sovereignty, such a ‘bal-
ancing’ analysis is inappropriate.” 117 S. Ct. at 2383. See
also New York, 505 U.S. at 160 (radioactive waste statute

App. 47

unconstitutional because the “[take title] provision is
inconsistent with the federal structure of our Government
established by the Constitution”). Instead of bringing the
States within the scope of an otherwise generally applica-
ble law, Congress passed the DPPA specifically to regu-
late the States’ control of the States’ own property — the
motor vehicle records. “It is the very principle of separate
state sovereignty that such a law offends, and no compar-
ative assessment of the various interests can overcome
that fundamental defect.” Printz, 117 S.Ct. at 2383.7

It is not state power that the principle of state sover-
eignty protects. When States are forced to administer
federal programs, a fundamental attribute of State sover-
eignty is threatened: democratic accountability. It is this
basic principle upon which the Supreme Court rested its
holdings in New York and Printz:

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
subscribers). Even if a statute could be considered generally
applicable because it is part of some sort of scheme of
regulation, 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.

a,

App. 48

By forcing state governments to absorb the
financial burden of implementing a federal reg-
ulatory 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 immediate pos-
session of his gun. And it will likely be the
CLEO, not some federal official, who will be
blamed for any error (even one in the desig-
nated federal database) that causes a purchaser
to be mistakenly rejected.

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

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 elec-
toral ramifications of their decision. Accoun-
tability is thus diminished when, due to federal
coercion, elected state officials cannot regulate
in accordance with the views of the local electo-
rate in matters not pre-empted by federal regu-
lation.

505 U.S. at 169 (citations omitted). Thus, when Congress
requires the States to administer a federal program, dem-
ocratic accountability is diminished and for this reason
the Tenth Amendment is offended.

a eee ae ee AS

App. 49

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 of general applicability.’ Only
States collect driver’s license and motor vehicle informa-
tion. This is an exercise of sovereignty. See Peel v. Florida
Dept. of Transp., 600 F.2d 1070, 1083 (Sth Cir. 1979) (“Over-
seeing the transportation system of the state has tradi-
tionally 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

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 examining 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 constitutional problem
posits the impossible.

117 S.Ct. at 2383.

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.

App. 50

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 Amendment.!°
Accord Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). But see
Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998); Oklahoma v.
United States, 161 F.3d 1266 (10th Cir. 1998).

10 We find no merit in the United States’ contention that the
Act is a valid exercise of Congress’ power to enforce the
Fourteenth 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 confidentiality” 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 confidence. Because information contained in
motor vehicle records is not this sort of information, an
individual does not have a reasonable expectation that the
information is confidential. Thus, there is no constitutional right
to privacy in motor vehicle record information 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.

|
|

App. 51

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.

App. 52

Title 18 U.S.C. Sec. 2721 provides:

Sec. 2721. Prohibition on release and use of certain per-
sonal information from State motor vehicle records

(a) In General. - Except as provided in subsection (b), a
State department of. motor vehicles, and any officer,
employee, or contractor, thereof, shall not knowingly dis-
close 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 alter-
ations, recalls, or advisories, performance monitoring of
motor vehicles and dealers by motor vehicle manufac-
turers, and removal of non-owner records from the origi-
nal 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, including any
court or law enforcement agency, in carrying out its func-
tions, or any private person or entity acting on behalf of a
Federal, State, or local agency in carrying out its func-
tions.

(2) For use in connection with matters of motor vehicle
or driver safety and theft; motor vehicle emissions; motor

settee

App. 53

vehicle product alterations, recalls, or advisories; perfor-
mance 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
manufacturers.

(3) For use in the normal course of business by a legiti-
mate business or its agents, employees, or contractors,
but only -

(A) to verify the accuracy of personal information sub-
mitted 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 informa-
tion, but only for the purposes of preventing fraud
by, pursuing legal remedies against, or recovering
on a debt or security interest against, the individual.

(4) For use in connection with any civil, criminal,
administrative, or arbitral proceeding in any Federal,
State, or local court or agency or before any self-regula-
tory body, including the service of process, investigation
in anticipation of litigation, and the execution or enforce-
ment 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 produc-
ing statistical reports, so long as the personal information
is not published, redisclosed, or used to contact individ-
uals.

(6) For use by any insurer or insurance support organi-
zation, or by a self-insured entity, or its agents,
employees, or contractors, in connection with claims

a

iia

App. 54

investigation activities, antifraud activities, rating or
underwriting. ,

(7) For use in providing notice to the owners of towed
or impounded vehicles.

(8) For use by any licensed private investigative 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 required under chap-
ter 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 indi-
vidual motor vehicle records if the motor vehicle depart-
ment has provided in a clear and conspicuous manner on
forms for issuance or renewal of operator’s permits,
titles, registrations, or identification 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 oppor-
tunity to prohibit such disclosures.

(12) For bulk distribution for surveys, marketing or
solicitations if the motor vehicle department has imple-
mented methods and procedures to ensure that —

(A) individuals are provided an opportunity, in a clear
and conspicuous manner, to prohibit such uses; and

(B) the information will be used, rented, or sold solely
for bulk distribution for surveys, marketing, and

a...

iiiiiiciiiuiiaeeaeeiaill

App. 55

solicitations, and that surveys, marketing, and solic-
itations will not be directed at those individuals
who have requested in a timely fashion that they
not be directed at them.

(13) For use by any requester, if the requester demon-
strates it has obtained the written consent of the individ-
ual 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 subsection (b) (but not for
uses under subsection (b)(11) or or [sic] redisclose per-
sonal information for any purpose. An authorized recip-
ient under subsection (b)(12) may resell or redisclose
personal information pursuant to subsection (b)(12). Any
authorized recipient (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
information will be used and must make such records
available to the motor vehicle department upon request.

(d) Waiver Procedures. — A State motor vehicle depart-
ment 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

App. 56

of the request to the individual about whom the informa-
tion 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 sec-
tion.

Title 18 U.S.C. Sec. 2722 provides:

(a) Procurement for Unlawful Purpose. - 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 unlawful for any
person to make false representation to obtain any
personal information from an individual’s motor
vehicle record.

Title 18 U.S.C. Sec. 2723 provides:

(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 civil penalty
imposed by the Attorney General of not more than
$5,000 a day for each day of substantial noncom-
pliance.

Title 18 U.S.C. Sec. 2724 provides:

(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

Seer

App. 57

information pertains, who may bring a civil action in a

United States district court.

(b)
(1)

(4)

Remedies. - The court may award -

actual damages, but not less than liquidated dam-
ages in the amount of $2,500;

punitive damages upon proof of willful or reckless
disregard of the law;

reasonable attorneys’ fees and other litigation costs
reasonably incurred; and

such other preliminary and equitable relief as the
court determines to be appropriate

Title 18 U.S.C. Sec. 2725 provides:

In this chapter -

(1)

“motor vehicle record” means any record that per-
tains to a motor vehicle operator’s permit, motor
vehicle title, motor vehicle registration, or identifica-
tion card issued by a department of motor vehicles;

“person” means an individual, organization or entity
agency thereof; and

“personal, but does not include a State or informa-
tion” means information that identifies an individ-
ual, including an individual’s photograph, social
security number, driver identification number, name,
address (but not the 5-digit zip code), telephone
number, and medical or disability information, but
does not include information on vehicular accidents,
driving violations, and driver’s status.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0752%3A1. Public record. Not legal advice.