Governors in Florida, South Carolina and Colorado said in late January they were shocked to discover that digitized versions of driver's license photos had been sold to a New Hampshire company at a handsome profit for the states' treasuries.
In response to cries of outrage from drivers offended by the thought of their mug shots being zapped out of state, the governers sought court injunctions and legislation to stop it.
What does Image Data LLC want to do with the photos? Its nefarious scheme is to create a national database that would be sold to retailers who want to verify a customer's identity before accepting a credit card or check. If this is such an offensive idea, you'd think it would be simpler to pass a law making the creation of such databases illegal.
But aside from interfering with free enterprise, passing legislation like that would implicate the First Amendment, because peddling accurate information--which journalists also do--is protected by the Constitution. Rather than grapple with that issue head on, the three states are working to cut off access to the information at the source. No sale. No data. No database.
At about the same time this photo furor was going on, the U.S. Supreme Court agreed to review a decision of the 9th U.S. Circuit Court of Appeals, which last June declared unconstitutional a California statute prohibiting the release of addresses of people who have been arrested if the requester plans to use the records for "commercial purposes."
Before the law was enacted in 1996, a private publishing service called United Reporting Publishing Corp. had obtained this arrest information from various California police departments. United Reporting then passed it on, for a fee, to its clients, including lawyers, insurance companies and driving schools. But under the new law, only requesters falling under protected categories would be allowed access. They include journalists, scholars, private investigators and those seeking information for political purposes and who are prepared to swear under penalty of perjury that the data wouldn't be used to sell a product or service.
United Reporting sued the California Highway Patrol and the Los Angeles Police Department, among others, contending that by enforcing a law that limits access to information, they violated a constitutional right to disseminate the truth. Consistent with many state access laws and the federal Freedom of Information Act, which do not consider journalism to be a commercial activity, United Reporting argued its publishing business wasn't commercial at all, but pure speech, entitled to the highest level of First Amendment protection. Alternatively, United Reporting said, even publications that are commercial speech enjoy some protections.
The 9th Circuit made short work of the pure speech argument, finding that United Reporting sells arrest information to clients, "nothing more." But the court also found that United Reporting's publishing was commercial speech. As such, it can't be regulated by the government unless it is false or misleading or implicates a substantial government interest.
The three-judge panel ruled last June that the government's interest in protecting the privacy of arrested persons was substantial. But the court struck down the statute because its multiple exceptions to the rule of secrecy meant the information wasn't secret at all.
Judge Diarmuid F. O'Scannlain reasoned that it was not rational for a statute purporting to protect privacy to allow newspapers and magazines to obtain and publish information that would be denied to a commercial requester. "Having one's name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance abuse counselor, or driving school eager to help one overcome his present difficulties," he wrote.
Reasonable people might disagree over that analysis. In any event, the 9th Circuit's ruling, if affirmed by the high court, will imperil at least a dozen state laws that prohibit the disclosure or sale of public record information to requesters seeking access for commercial purposes.
On the surface, that makes sense. If information is public, it should be available to anyone on demand, and it is none of the government's business what the requester plans to do with it. But such a ruling could have a more insidious effect that could be bad news for journalists.
If the Supreme Court finds that states can't deny access to records based on what the requester plans to do with them, the states may respond by simply closing off access to multiple categories of public records to anyone--including journalists. All in the name of protecting privacy, of course.