Wednesday, September 05, 2007

High Court Review Sought in Driver Privacy Class Action

This posting was written by William Zale, Editor of CCH Privacy Law in Marketing.

Officials of the Florida Department of Highway Safety & Motor Vehicles, who face potential liability of billions of dollars for selling drivers’ personal information to mass marketers, have asked the U.S. Supreme Court to review the drivers’ putative class action.

The officials seek review of a decision by the U.S. Court of Appeals in Atlanta that they were not entitled to qualified immunity.

Driver’s Privacy Protection Act

The appellate court held that, although the officials’ alleged sale of drivers’ personal information to mass marketers did not violate a constitutional right, a statutory right to privacy in motor vehicle information was clearly established by the federal Driver’s Privacy Protection Act, giving fair notice that the alleged conduct violated federal law.

The plain language of the Act clearly, unambiguously, and expressly created a statutory right enforceable by enabling aggrieved individuals to sue persons who obtain, disclose, or use their personal information in violation of the Act.

Private Suit Authorization

The Act’s private suit provision (18 U.S.C. Sec. 2724(a)) states:

“A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.”

The remedies provision (18 U.S.C. Sec. 2724(a)) states:

“The court may award—(1) actual damages, but not less than liquidated damages in the amount of $2,500; (2) punitive damages upon proof of willful or reckless disregard of the law; (3) reasonable attorneys’ fees and other litigation costs reasonably incurred; and (4) such other preliminary and equitable relief as the court determines to be appropriate.”

The appellate court noted that, in Reno v. Condon, 528 U.S. 141 (2000), the U.S. Supreme Court had determined that, under the statute as amended in 1999:

“States may not imply consent from a driver’s failure to take advantage of a state-afforded opportunity to block disclosure, but must rather obtain a driver’s affirmative consent to disclose the driver’s personal information for use in surveys, marketing, solicitations, and other restricted purposes.”

Petition for Review

In their petition for Supreme Court review, the Florida officials contend that the appellate court’s decision that the DPPA created a private cause of action for damages against state officials for complying with state law is wrong and will have disastrous consequences for the states. The officials further contend that the suit for damages solely for compliance with or implementation of state law is barred by the Eleventh Amendment. Finally, the officials argue that they did not violate clearly established law and were entitled to qualified immunity.

Further developments relating to the petition for certiorari filed August 13, 2007, in Dickinson v. Collier, U.S. S.Ct. Dkt. 07-197, will be reported at CCH Privacy Law in Marketing ¶20,000.

The February 12, 2007, decision of the U.S. Court of Appeals for the Eleventh Circuit in Collier v. Dickinson, No. 06-12614, will be reported at CCH Privacy Law in Marketing ¶60,109.

Details regarding recently-issued CCH Privacy Law in Marketing appear at the CCH Online Store.

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