Friday, November 06, 2009

Using Motor Vehicle Data to Solicit Legal Clients Would Violate Federal Privacy Law

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

A purported class of individuals could pursue claims against attorneys for violating the Driver's Privacy Protection Act (DPPA) by unlawfully obtaining personal information pursuant to the Freedom of Information Act (FOIA) from the South Carolina Department of Motor Vehicles (SCDMV) for the impermissible purpose of soliciting clients, the federal district court in Greenville, South Carolina has ruled.

The attorneys allegedly sent several FOIA requests to the SCDMV seeking information regarding individuals who purchased automobiles during specific periods of time, including the name, address, and telephone number of the buyer; the dealership where the automobile was purchased; the type of vehicle purchased; and the date of the purchase.

The attorneys then mailed a letter to the individuals, whose information was obtained, offering a free consultation and inviting the individuals to hire the attorneys to represent them in a lawsuit against certain dealerships. The letter included the label “ADVERTISING MATERIAL.”

Litigation, State-Action Exceptions

This conduct would not fall under the DPPA's “litigation exception,” according to the court. The DPPA provides that a state DMV may disclose personal information for use in connection with an investigation in anticipation of litigation. The exception permitted the attorneys to request information in an attempt to obtain evidence, but not to find and solicit clients.

The attorneys also did not qualify for the DPPA's state-action exception by functioning as “private attorneys general.” The attorneys did not allege that they provided any information to any government agency.

Knowledge, Damages Requirements

The individuals did not have to allege that the attorneys knowingly violated the DPPA, only that they knowingly obtained their personal information, the court said. The individuals were not required to plead actual damages in order to receive statutory liquidated damages under the DPPA.

The DPPA did not violate the Commerce Clause, the court determined. The personal information regulated by the DPPA was in interstate commerce and was therefore a proper subject of congressional regulation.

The decision is Maracich v. Spears, CCH Privacy Law in Marketing ¶60,380.

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