Antitrust Law Daily Wrap Up, PRIVACY NEWS: High Court asked to review Driver’s Privacy Protection Act access, (Aug 22, 2013)

By Peter Reap, J.D., LL.M.

Marcy Johnson, on behalf of herself and a putative class, has asked the U.S. Supreme Court to review a decision of the U.S. Court of Appeals in St. Louis interpreting the ability of information resellers, such as the defendant West Publishing Corp., to obtain and resell information provided to state motor vehicle agencies under the Driver’s Privacy Protection Act. According to Johnson, the question presented was: “Did the Eighth Circuit err in holding that Personal Information—information provided by drivers to state motor vehicle agencies—may be obtained in bulk for any reason, so long as the information is eventually used by a person under one of the DPPA’s 14 exceptions?” The petition for certiorari was filed with the Court on August 14 (Johnson v. West Publishing Corp., Dkt. No. 13-218.)

Johnson filed suit "on behalf of herself and all others similarly situated" against West, alleging that West "obtained, acquired, disclosed, sold, and/or disseminated [Johnson's] and putative Class members' personal information or highly restricted personal information for commercial purposes and profit, as prohibited by law." The complaint alleged that West "has obtained and continues to obtain a large database(s) of motor vehicle records, and the corresponding personal information or highly restricted personal information for each such record . . . directly from" 29 states and the District of Columbia, "or from entities who acquired it from the States, in violation of the DPPA."

In denying West's motion, the district court rejected the majority view that the DPPA permits wholesale resellers to obtain in bulk every driver's personal information so long as there is no evidence of specific misuse, according to the Eighth Circuit. The district court specifically rejected the conclusion that "a reseller is not limited to obtaining personal information only for a specific customer qualified to use it by the DPPA" and that "the reseller itself does not need a right to the information under one of the fourteen exceptions to the DPPA's rule of nondisclosure.

The district court denied West's motion for judgment on the pleadings before the Eighth Circuit decided Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989 (8th Cir. 2011). In that case, the plaintiffs brought a class action suit against a variety of defendants, alleging that each improperly obtained personal driver information from the Missouri Department of Revenue in violation of the DPPA.

Cook's holdings—that "[p]laintiffs cannot establish a violation of the DPPA if all the defendants have done is obtain driver information in bulk for potential use under a permissible purpose," and "[p]laintiffs cannot establish a DPPA violation by alleging that Defendants obtained personal information with the sole purpose of selling it to third parties who have permissible section 2721(b) uses for the information,"—were applicable to the present case, the Eighth Circuit ruled. As in Cook, Johnson did not allege that West "actually misused drivers' personal information," instead, she only alleged that West had an invalid purpose because it "obtained, acquired, disclosed, sold and/or disseminated . . . personal information for commercial purposes and profit." Because the Eighth Circuit found that Cook was controlling, it reversed the judgment of the district court and remanded.

In her Petition, Johnson contends that West’s conduct in obtaining Johnson’s Personal Information violates the DPPA because the DPPA prohibits obtaining Personal Information unless the obtainment falls under one of the 14 exceptions set forth in section 2721(b). Johnson argues that the Eighth Circuit opinion conflicts with the Supreme Court’s opinion in Maracich v. Spears, 133 S.Ct. 2191(June 2013) in which the Court held that none of the DPPA’s “exceptions are written to authorize private individuals to acquire the most restricted personal information in bulk merely to propose a commercial transaction for their own financial benefit.” This was precisely the conduct West engages in and which the Eight Circuit condoned in its opinion, Johnson asserts.

Johnson also contends that the Eighth Circuit’s opinion also conflicts with established rules of statutory interpretation and with the plain language of the DPPA. The DPPA states: “[i]t 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 2712(b) of this title.” 18 U.S.C. § 2722(a). Despite this plain text, the appellate court refused to apply the text as written, violating fundamental, statutorily protected privacy rights, in Johnson’s view.

The Eight Circuit’s opinion “frustrates, if not defeats, the intent and purpose of the DPPA because it allows for the excessive and unfettered obtainment and disclosure of Personal Information with nothing more than a promise to resell said information under one of section 2721(b)’s exceptions,” according to Johnson.

Attorneys: Ben Barnow (Barnow and Associates, P.C.) for Marcy A. Johnson.

Companies: West Publishing Corp.

News: Privacy