The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

U.S. Supreme Court Recognizes Privacy Right in Residents’ Motor Vehicle Records

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On June 17, 2013, the U.S. Supreme Court issued its opinion in Maracich v. Spears, No. 12-25, 570 U.S. ___ (2013), to limit the disclosure of personal information covered by the federal Driver’s Privacy Protection Act of 1994 (“DPPA”). See 18 U.S.C. §§ 2721-2725. The case involved class action attorneys who submitted several state Freedom of Information Act (FOIA) requests to the South Carolina DMV to obtain personal information on thousands of car buyers, including buyers’ names, addresses, phone numbers, and car purchase information. The attorneys then used this information to identify potential class action plaintiffs and to send “solicitations” to join several lawsuits against South Carolina car dealerships for alleged violations of state law. The attorneys mailed 34,000 such solicitations under the heading, “ADVERTISING MATERIAL” and asked that recipients return an enclosed reply card if they wanted to participate in the case.

South Carolina residents brought suit against the attorneys for violating the DPPA by obtaining, disclosing, and using their personal information from motor vehicle records for solicitation without their express consent. The issue before the High Court was whether the use of DMV records to solicit clients for an incipient lawsuit fell into the “litigation exception” of the DPPA. This exception allows for the disclosure of DMV-held personal information “in connection with” litigation and for “investigation in anticipation of litigation.”

The majority (written by Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito) declined to find the litigation exception applicable. The majority’s holding turned on the distinction between an attorney’s solicitation of new clients and his or her conduct on behalf of an existing client or the court. As to the former, the Court held that an attorney’s solicitation of prospective clients was neither a use “in connection with” litigation nor “investigation in anticipation of litigation.”

The High Court noted this reading of the litigation exception of the DPPA was consistent with various provisions of the DPPA that protect an individual’s right to privacy in his or her motor vehicle records. It found the use of purchasers’ highly personal information in solicitations without their express consent was “so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard.” Indeed, the Court held “Congress chose to protect individual privacy by requiring a state DMV to obtain the license holder’s ex¬press consent before permitting the disclosure, acquisition, and use of personal information for bulk solicitation.”

The case addressed a narrow issue of statutory construction involving the scope of the litigation exception of the DPPA. Though there was no indication that the attorneys had misused in any way the personal information of consumers lawfully obtained from the state DMV, the majority opinion admonishes private attorneys that engage in fishing expeditions to gain access to this information for the purpose of expanding their client base.

Author: Sherrie Kim Schiavetti

Associate, Advertising and Marketing, Litigation, Kelley Drye & Warren LLP

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