Friday, October 05, 2012

High Court to Rule on Exception to Driver's Privacy Law

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

The U.S. Supreme Court on September 25 agreed to hear a case that could clarify what uses of personal information obtained from driver's license and vehicle registration databases are "permissible" under the federal Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§2721-2725. The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle departments. The DPPA permits the disclosure of protected personal information for several "permissible uses" listed in §2721(b).

The Court granted a petition for certiorari filed by individuals asking the Court to review a decision of the U.S. Court of Appeals in Richmond (CCH Privacy Law in Marketing ¶60,751), holding that four attorneys who obtained motor vehicle records of South Carolina vehicle buyers for the purpose of engaging in mass solicitation without consent-a purpose prohibited by the DPPA-could not be liable for violating the DPPA, as a matter of law. According to the appellate court, the attorneys made permissible use of the buyers' personal information protected by the DPPA, specifically, use in connection with litigation, including investigation in anticipation of litigation, and the solicitation was conducted in the course of that permissible use.

The attorneys had sent several FOIA requests to the South Carolina Department of Motor Vehicles 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."

The DPPA provides that a state DMV may disclose personal information for use in connection with an investigation in anticipation of litigation. It was a matter of settled state law and practice that solicitation was an accepted, expected, and inextricably intertwined element of conduct satisfying the litigation exception under the DPPA, the Fourth Circuit said. Accordingly, such solicitation was not actionable by the buyers. Dismissal of the buyers' DPPA claims by the federal district court in Greenville, South Carolina, was affirmed.

The petition is Maracich v. Spears, 12-25.

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