License Revoked   

When Congress cut off access to motor vehicle records, it underscored the media's lack of lobbying clout when it comes to journalism issues. Now there are fears that other valuable data will be declared off limits.

Kathleen Ryan was kneeling in the street, crying uncontrollably as she held the broken, bloodied body of her youngest child. Seven-year-old Lynn Ryan, a second-grader preparing to receive her first Communion, had just become the third Rhode Island child to be run over and killed by a school bus in less than a year.

Following the October 1985 tragedy, the Providence Journal-Bulletin launched an investigation into school bus safety. The results were alarming. The story documented that some school bus drivers had among the worst driving records in the state. The article helped trigger a series of reforms, and Rhode Island has boasted a spotless school bus safety record ever since.

Journal-Bulletin reporter Elliot Jaspin relied heavily on what at the time was a rather unusual reporting tool: a computerized list of driving records from the state's Registry of Motor Vehicles.

Individual motorist records traditionally have been used by reporters for everything from tracking down hard-to-find sources to identifying participants in Ku Klux Klan rallies. Since Jaspin's ground-breaking work, however, scores of journalists have tapped into computerized motor vehicle databases for major investigative projects.

Computer analyses of motor vehicle records uncovered Florida drivers who were still on the road despite multiple drunken driving convictions, Kansas City police officers who hardly ever get tickets while off-duty, Minnesota airline pilots who lost their driving privileges because of alcohol abuse, and dozens of other harrowing stories.

But these relatively new public service investigations will soon be a thing of the past. Last year, Congress slipped into the much debated and highly publicized 355-page crime bill a little-noticed provision that will cut off public access to states' motor vehicle records on September 13, 1997.

The action underscores how journalists, influential players in the legislative process, find themselves handcuffed by a complex web of financial and ethical constraints when it comes to protecting their own interests.

And the dangers may reach far beyond motor vehicle records. Press advocates fear the logic behind the new law – that the open records constitute an invasion of privacy and an invitation to stalkers – could lead to similar government shutdowns of voter registration and other public records that have long been staples of investigative reporting.

The first press activists heard of any threat to Department of Motor Vehicle records was in late October 1993, when Sen. Barbara Boxer announced her Driver's Privacy Protection Act at a Washington news conference.

Boxer had crafted a politically savvy bill. For liberals, she explained how the records could be used by antiabortion zealots to track down abortion doctors and patients. For conservatives, the senator said keeping the records open would leave American motorists vulnerable to crazed stalkers.

Unfortunately for journalists, the California Democrat had been working aggressively behind the scenes for six months before the official announcement. By the time of the formal unveiling, 21 organizations – representing doctors, police, women, crime victims, insurance companies, abortion rights groups, privacy activists and consumers – and 10 senators had already signed on.

The battle had just begun, and the press was already far behind.

Unlike many other groups, journalists don't have a sensitive radar system in place on Capitol Hill to pick up on legislation that might cause problems for them. And even when they sense potential danger, they can't always afford to do what it takes to head it off.

The Newspaper Association of America has a substantial lobbying presence, spending $2.78 million to influence Congress in the past four years, according to lobbyist disclosure reports. But NAA's focus is almost exclusively on the business side of newspapers. Big outlets such as Gannett and Times Mirror also lobby, but they too focus on legislation that touches profit margins, not news stories (see "The Newspaper Lobby," page 45).

Looking out for newsroom issues is left largely to poorly funded journalism groups such as the Society of Professional Journalists and the American Society of Newspaper Editors. "We're not talking about industry lobbyists. We're talking about volunteers who are working full time jobs trying to stay on top of things," says Paul McMasters, the Freedom Forum's First Amendment ombudsman.

SPJ and ASNE hire Washington law firms to represent them, but there are so few dollars available that they do little lobbying, says Lucy Dalglish, chairwoman of SPJ's Freedom of Information Committee and leader of the fight to keep DMV records open.

In the weeks following Boxer's announcement, various journalism interests scrambled to lobby against the legislation, arguing that DMV documents are legitimate public records that provide invaluable information to citizens. They also noted that shutting down DMV records would do little to stop stalkers because the same home address information is available from a wide variety of easily accessible sources, such as property records, voter registration rolls and telephone directories.

But Boxer was intractable, according to Dalglish and others involved in the fight. Boxer, who did not return repeated phone calls for this story, moved quickly to line up support from key Senate Judiciary Committee members. Press advocates hoped they could count on Sen. Patrick Leahy, at the time a judiciary subcommittee chairman and a longtime press ally. But Boxer was nailing down the Vermont Democrat's pivotal commitment even as a delegation from the press groups was on the Hill lobbying aides to the two senators, Dalglish says she was told by a Leahy staffer.

Proponents of the Boxer bill provided no statistical evidence to support their case that open DMV records posed a grave danger, but sprinkled their arguments with a handful of anecdotes to illustrate their point. The most popular – and most powerful – was the story of actress Rebecca Schaeffer, the young costar of the "My Sister Sam" sitcom who was gunned down in the doorway of her Los Angeles apartment in 1989 by an obsessed fan. He had tracked her down through the address on her driver's license.

"Can we afford to wait until every state has their own tragedy?" Boxer asked her Senate colleagues. Ironically, Robert Bardo got Schaeffer's DMV information from a private investigative agency, which will still have access to DMV data under a special exemption for PIs inserted into the final bill.

Just three weeks after the bill's introduction, the Senate passed the measure with no hearings, little debate and no opposition.

The brief late-night discussion among six senators consisted largely of a recitation of the Schaeffer murder, Boxer reading graphic letters from a stalker to his prey, and Sen. John Warner, a Virginia Republican, saying he didn't know the information was public in the first place. No mention was made of the public service journalism that has stemmed from DMV data. Only one senator – conservative Republican Orrin Hatch of Utah – even touched on press concerns.

"It was amazing," says Dalglish, a former St. Paul Pioneer Press reporter and editor who is entering a new career as a media lawyer. "I always thought that any legislation that goes through Washington drags on and on and on... The speed that this flashed through the Senate just blew me away."

The next battle, which would last a year, was fought in the House. But the media's reluctance to lobby hampered that effort, as it has for many open records fights.

"To say we are lobbyists is a disservice to real lobbyists," says David Bartlett, president of the Radio-Television News Directors Association, which fought Boxer's proposal. "I often say we lobby with a small 'l' because..the two most powerful tools of the traditional lobbyist are not available to us, those being campaign contributions and grassroots telephone and letter-writing campaigns.

"Working journalists, whom we represent, are very hesitant of leaning on a member of Congress today who they are going to be covering tomorrow," Bartlett says. "Our members don't like to make phone calls and write to members of Congress because it immediately creates conflicts of interests... For us, they're not only lobbying targets, but targets of coverage, and it's very difficult to do both."

But Rich Oppel, editor of the Austin American-Statesman, says journalists must jump into the fray. "If we're not going to fight for open government in the form of meetings and records laws, I don't know who is."

Jim Keat, editorial page coordinator at Baltimore's Sun, says he used to look at lobbying by journalists "with horror." But he changed his mind after becoming involved in a revision of Maryland's open meetings law. "It finally dawned on a number of us that we were going to have our heads beaten in unless we got active and advocated our own views," Keat says. "So we became part of the process... Realistically, that's how you get things done."

Many journalists, however, still feel mixing journalism and lobbying poses too many dangers to the integrity and credibility of news organizations. In a Nieman Reports article last year, David DuBuisson, editorial page editor of the News & Record of Greensboro, North Carolina, warned journalists to stay out of the lobbying business. "When an editor..lobbies a politician, no matter how circumspectly, there is the inescapable insinuation of an editorial quid pro quo," DuBuisson wrote. "When it comes to election endorsements, how can we even pretend to be objective about someone whom we've asked for political favors?"

Without lobbying by editors, journalists are left largely dependent upon the efforts of journalism organizations. But with limited financial resources, these newsroom-oriented groups cannot put on the same type of full-court press that other special interests – including newspaper publishers and TV station owners – conduct on a regular basis.

Another traditional lobbying tool is developing a media strategy. Ironically, even here, the press is at a disadvantage.

"Newspapers' editorial staffs and editors.. lean over backwards not to campaign for their favorite projects and things that would benefit them directly," the Freedom Forum's McMasters says. He says that's a mistake. "Too many editors regard [access issues such as open records laws] as inside baseball, and they're wrong. It's not inside baseball. It's critical and they should be paying attention to it."

Dalglish saw the reluctance of editors firsthand. "We just papered the industry with literature on this, and none of the big papers bit," she says. "There's some sort of natural resistance that if it's about your industry or it's in your interest, you can't write about it."

Would editorial pressure have made a difference? Dalglish thinks so. "If the New York Times and the Washington Post wrote editorials about this, it never would have flown," she says. USA Today was one of the few newspapers to editorialize against the measure.

Editors also seem reluctant to run news stories about issues that affect them. The result can be a virtual news blackout. The lead reporters on three of the four DMV-related stories mentioned at the beginning of this article didn't know the bill had become law.

And the few news stories that were printed weighed heavily in favor of privacy advocates, according to Rosemary Armao, executive director of Investigative Reporters & Editors.

"We haven't done balanced coverage when we're the ones on the other side" of an issue, Armao says. "The media in this country knows that it's not popular, and they go out of the way to bash themselves."

Keith Woods, who specializes in journalism ethics at the Poynter Institute for Media Studies, agrees there's a tendency to "grab the reins" and pull back on stories that have an impact on the media. Woods urges using the "same news judgment that you apply to anything else."

But Armao advocates an activist approach. "We need to forget this idea of objectivity when it comes to matters of public records," she says. "Why is it that we have to be objective on that when it is clearly in our interest?" She encourages journalistic interests to lobby, write news stories and editorialize against such measures.

Jay Black, a journalism ethicist at the University of South Florida and editor of the Journal of Mass Media Ethics, is wary of that kind of coverage. Readers, he says, will "recognize that we have a vested interest in the outcome of this kind of story, and it will backfire." He suggests "fuller disclosure" of journalists' interest in such stories through editors' notes or interviews with editors.

Once it became clear that passage of the the Boxer bill was inevitable, the media groups focused on shaping the measure to make it journalistically palatable. But press advocates were divided over whether to accept a special press exemption, which proponents of the measure offered as a compromise. The bill's final version included exemptions for government agencies, courts, parties to lawsuits, insurance agents, tow truck operators, private toll companies, researchers, auto manufacturers and private investigators. Mass marketers also got an exemption, but states must provide motorists the opportunity to remove themselves from the mailing lists.

The Newspaper Association of America recommended a press exemption, but the leadership of SPJ, ASNE, RTNDA and the Reporters Committee for Freedom of the Press objected, according to NAA Senior Vice President John Sturm. The NAA went along with the other groups.

"We break faith with the public if we ask for special privileges," says Dalglish. "It reflects arrogance on our part. Our entire reason for existing is to benefit the public... It just seems to me incredibly hypocritical to say, 'Yes public, you can have it, but only through us.' "

Others worried about the notion of the government deciding who is a legitimate member of the media. "How do you define the press, and who does the defining? Who decides what's press and what's not?" asks Bartlett. "Nobody in the press, certainly not RTNDA, is comfortable about what is and what isn't a legitimate news organization, and we are even less comfortable having the government, any government, define what is a legitimate news organization and what is not."

But critics say by refusing an exemption, the press has crippled itself. "We basically said, 'If you're going to screw the public, screw us too.' And they did," says Brant Houston, managing director of the National Institute for Computer-Assisted Reporting. "We're supposed to inform the public, and so what did we do? We cut off some of our major sources of information."

Herb Strentz, professor of journalism at Drake University and executive secretary of the Iowa FOI Council, points to other special privileges traditionally enjoyed by the press – state shield laws, press rooms in legislatures and ball parks, cameras in the courtroom.

"There are many instances in law and in practice where journalists have, want and even demand access to information the public cannot have," Strentz wrote to SPJ officials. "In part, that's why we exist, to get such information and publish it."

Illinois limited access to its DMV records in 1992, but exempted the press. "Frankly, there was never a debate," says John Foreman, editor of the Champaign-Urbana News-Gazette and board member of the Illinois Press Association. "If it's a choice between having to seek some level of access the public can't have so we can serve the public, then that's not a hard call for me."

In February 1994, two-and-a-half months after ýhe Senate passed its bill, the House Judiciary Subcommittee on Civil and Constitutional Rights held two days of hearings. The press groups rallied behind what they called the least objectionable alternative – keeping the records open but giving individual motorists the option of closing their own files.

The House bill, drafted by Rep. Jim Moran, a Virginia Democrat, was changed to include the so-called "opt-out" provision. But under the legislation ultimately adopted, it's up to the states to decide to enact a law providing motorists with the opt-out option. If states take no action, the records remain closed to everyone except the groups that received exemptions from Congress.

Following final passage, SPJ launched a 50-state campaign to pass opt-out bills. But even proponents of the plan concede they face an uphill battle. "We'll be lucky if we come out 50-50," says McMasters. So far, it hasn't even been that good. Only New Mexico has enacted an opt-out law, according to Dalglish. South Carolina, meanwhile, decided not to wait for the federal law to kick in, passing its own statute to seal motor vehicle records.

Critics say even with state laws, the opt-out provision would do journalists little good. "The people who will be opting out are precisely the people who we want the information about," says the News-Gazette's Foreman. "If I'm an airline pilot with six convictions for drunk driving, what do you think [I'll do]?"

Opt-out proponents remain optimistic, pointing to states like Minnesota, which already gives its motorists the option to keep their driving records private. Mark Anfinson, an attorney for the Minnesota Newspaper Association, says only 1,500 of Minnesota's 3.2 million licensed drivers opted out in the law's first 15 months.

But the Minnesota statute is very different from what would be allowed under the new federal law. The Boxer law mandates that motorists be informed in a "clear and conspicuous manner" on license applications or renewals that their personal data may be disclosed to "any business or person," and that they be given the option – again in a "clear and conspicuous manner" – to bar such disclosures.

In Minnesota, motorists must fill out a separate form, state that they want the information private for "the safety of myself or family," provide a valid secondary address that is public and in many cases pay an $8 fee.

While journalism groups fight for opt-out provisions on the state level, media lawyers are hoping to challenge the law in court. Washington attorney Robert Becker says the law violates the First Amendment. He argues that the business side of a newspaper could gain access to the information under the new law for marketing purposes, but if the paper published the information, it would be violating the statute. Preventing the newspaper from publishing the information, Becker says, would be an unconstitutional prior restraint.

"If the government makes the information available, [it] can't condition how it's used," Becker says. "Once you put it out there..you can't say you can't use it."

Other lawyers focus on what they say is the statute's violation of the 10th Amendment, which gives states authority over issues not constitutionally delegated to the federal government. Jerome Wilson, a press lawyer and former New York state senator, is buoyed by a 1992 Supreme Court ruling that concluded the federal government cannot require states to carry out federal regulatory programs.

Wilson says press advocates continue to approach attorneys general in various states, but so far none has agreed to file suit.

Many journalists and media lawyers fear the restrictions are merely the beginning, and that soon other government records will be sealed. "It's the next logical step," says Becker. "If you can seal DMV records maintained by the government, why can't you seal voter registration lists?"

Allan Adler, a lawyer representing ASNE, says he doesn't believe Congress understands the precedent created by the DMV law. He says he wouldn't be surprised to see more record-closing legislation in the name of privacy. David Beatty of the National Victim Center has said that voter registration records and postal forwarding addresses should be next on the agenda to close.

Rebecca Daugherty, an attorney with the Reporters Committee for Freedom of the Press, says closing voting records would be a "complete disaster" for the public. "Voting is the most prominent of our democratic rights. Keeping the process sacred [by making sure voters] live in the district, that they are alive, that they're not voting from vacant lots or the grave, [is] just an integral part of the democracy."

But privacy advocates are making their moves.

In California, Gov. Pete Wilson last year signed into law a measure that closes voter registration records. That statute, however, provides the kind of media exemption that some press advocates in the DMV debate found so abhorrent.

In Oklahoma, the state Senate in March passed a measure to cut off access to computerized voter registration records. California legislators have talked about restricting the property records of police officers, judges and prosecutors.

"There is no way," warns Dalglish, "this is just going to stop at DMV records." l