Friday, November 14, 2008

Union Organizers Liable Under Driver Privacy Law for Using Motor Vehicle Data

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

A labor union was liable under the Driver's Privacy Protection Act of 1994 (DPPA) for accessing motor vehicle records of an industrial laundry company's employees in order to contact them with regard to an organizing campaign, the U.S. Court of Appeals in Philadelphia has held. Employees of the company, and certain of their relatives and friends, could be entitled to damages for the violations.

The labor union used license plates on cars found in the company's parking lots to access information contained in state motor vehicle records relating to those license plates. The union accessed the records of between 1,758 and 2,005 of the company's employees, or relatives or friends of employees, and contacted the subjects of the records regarding its campaign to organize the company's workers.

Permissible Uses

Labor organizing was not one of the 14 specific "permissible uses" of motor vehicle data excepted from liability under the DPPA, according to the court.

The union unsuccessfully argued that its labor-organizing purpose could not be severed from its purposes in using the data under the litigation exception and the exception for actions taken on behalf of the government. The union asserted that it accessed the vehicle records, in part, because it required the records to conduct an investigation of alleged illegal labor practices by the company. The investigation was being conducted, the union said, in connection with planned litigation against the company.

The litigation component of its activities could not obscure the union's primary purpose—organizing labor, the court said. The union could not "mask" this non-permissible use of the data behind the veil of other, permissible uses.

The DPPA prohibited obtaining or using personal information "for a purpose not permitted" under the statute. It contained no language excusing an impermissible use merely because it was executed in conjunction with a permissible purpose. The court declined to "engraft" a "labor exception" onto the DPPA.

Liquidated Damages

The plaintiffs could be entitled to cumulative liquidated damages awards of $2,500 for each of a labor union's alleged multiple DPPA violations. They would be limited to one damage award for both aspects of the union's violation of the DPPA: (1) obtaining the data and (2) using the data. Obtaining the data and using it were not, themselves, two separate violations, the court said. The plaintiffs would, however, be entitled to further liquidated damages awards for any subsequent violations found to have occurred by the trial court.

Punitive Damages

A district court's determination that the union would be "effectively deterred" from further violations of the DPPA without an award of punitive damages was vacated. The district court did not apply the proper standards for summary judgment, and improperly engaged in weighing of evidence on the summary judgment record, the appellate court said. The case was remanded for the district court to address explicitly whether summary judgment was appropriate on the issue of punitive damages.

Individuals Not Included in Records

Two of the plaintiffs lacked standing to pursue DPPA claims because neither of them were the registered owners of the vehicles about which the union obtained information. These plaintiffs were the wives of vehicle owners whose data had been obtained by the union. They suffered no invasion of an interest protected by the DPPA, the court said.

The DPPA provides that a person who knowingly obtains, discloses, or uses personal information from a motor vehicle record for a purpose not permitted under the statute shall be liable to the individual to whom the information pertains. The DPPA thus confers a cause of action to "the individual" whose personal information from the motor vehicle records is at issue.

The reach of the DPPA was limited to the single individual to whom a particular vehicle record pertained, and did not extend to other individuals who happened to share an address or telephone number with that individual, the court held.

The Third Circuit decision is Pichler v. Unite, CCH Privacy Law in Marketing ¶60,254.

CCH Privacy Law in Marketing provides comprehensive coverage of federal, state, and international privacy law governing the collection, maintenance, and use of personal data in marketing efforts. The publication features treatise-style explanations by authors D. Reed Freeman, Jr., and J. Trevor Hughes, in addition to the full text of laws from 46 states and 35 international markets. Monthly reports contain law updates, court decisions, enforcement actions, and an informative newsletter.

Further details regarding CCH Privacy Law in Marketing appear here at the CCH Online Store.

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