Personal But Not Private   

A federal judge strikes down a law restricting access tomotor vehicle records.

On September 15, the New York Times ran a page one story headlined "On- Line, High-Tech Sleuths Find Private Facts." It breathlessly recounted how, thanks to the proliferation of computerized databases, private investigators can gain access to information about individuals such as their birth date, phone number and Social Security number.

The Times' article is a classic example of the news media shooting themselves in the foot, effectively arguing for tighter controls on information that has long been available through public and private sources such as deed books, tax records and telephone directories. It seems to presume that the revelation of virtually anything identifying an individual is a violation of that person's privacy. Fortunately for freedom of information interests, at least two federal judges disagree.

Four days before the Times' piece appeared, District Judge Dennis W. Shedd, sitting in Columbia, South Carolina, ruled that personal information in government records that can be readily obtained from public or private sources is not protected by the Fourteenth Amendment's right to privacy. He did so in striking down a federal statute called the Driver's Privacy Protection Act (DPPA). A federal judge in Oklahoma issued his own injunction on September 15. (The rulings apply only in the states where they were issued.)

This 1994 law was ostensibly enacted in response to the murder of actress Rebecca Schaeffer, whose home address was obtained by a private investigator from California motor vehicle records and then used by the individual who killed her.

The DPPA prohibits states from making available "personal information" contained in motor vehicle records unless they first provide car owners and holders of driver's licenses the opportunity to "opt out" of being part of the master databases (see "License Revoked," November 1995). But even if states choose not to adopt an opt out scheme and to exempt the records from their open records laws, the otherwise secret data would still be available to more than a dozen categories of people including, ironically, private investigators – but not to journalists or members of the general public.

More than two-thirds of the states allowed public access to motor vehicle records, forcing them to scramble to enact conforming legislation before the statute's effective date of September 13, 1997, or run the risk of incurring a civil penalty of $5,000 a day. Individuals or organizations violating the law would be subject to criminal prosecution as well.

In 1996, the state of South Carolina sued the federal government, claiming that the DPPA is unconstitutional because it infringes on the sovereignty of the states by compelling them to enforce a federal policy by regulating access to their own motor vehicle records.

Relying on recent U.S. Supreme Court cases – including last June's decision striking down the portion of the "Brady Law" requiring sheriffs to conduct background checks on gun license applicants – South Carolina argued that Congress has no authority to make the states implement federal regulatory programs, especially when the states retain the underlying responsibility for collecting and maintaining the records themselves.

Shedd agreed that, under the Tenth Amendment, Congress clearly exceeded its power. But, significantly, he also found that releasing personal information from motor vehicle records does not, as the government had argued, violate the constitutional right to privacy.

The law defines "personal information" as an individual's driver's license photograph, driver identification number, address and phone number. "These are clearly not the type of intimate matters for which individuals have a 'reasonable expectation of confidentiality' that the Constitution protects," Shedd wrote.

Even medical or disability information contained in DMV records might not raise constitutional privacy concerns, he added, because much of it, such as whether a person wears eyeglasses or uses a wheelchair, is readily discernible "to anyone who sees the individual."

In short, the judge found that information that can be obtained simply by observing an individual, or that can be found in myriad public and private places, isn't the type of highly intimate personal data that the Constitution intended to shield from public disclosure.

Computers have indeed made it easier to retrieve information about each of us. But new technology must not be used as a pretext to force the states to gut their open records laws in order to regulate the dissemination of harmless data.

Just because information is "personal" doesn't necessarily mean that it is intimate and that disclosing it is offensive. To protect the free flow of information, as well as their own newsgathering interests, the news media would be wise to recognize that.