OFFICE OF THE ATTOREEY GENERAL - STATE OF TEXAS

JOHN ~~RNYN

October 19,200l

The Honorable Tony Goolsby Opinion No. JC-0423 Chair, Committee on House Administration % Texas House of Representatives Re: Limitation on disclosure of driver’s license P. 0. Box 2910 information imposed by the Federal Driver’s Austin, Texas 78768-29 10 Privacy Protection Act (RQ-03 81-JC)

Dear Representative Goolsby: House Bill 3016, adopted by the 77th Texas Legislature, “permits the use of information accessed by using the magnetic strip on a .. .driver’s license by persons other than law enforcement officials when used to prevent the purchase of alcoholic beverages by minors and to comply with Texas Alcoholic Beverage Commission record keeping rules regarding private club memberships.” HOUSECOMM. ON LICENSING &ADMINISTRATIVE PROCEDURES,

BILLANALYSIS,Tex. H.B. 3016,77th Leg., R.S. (2001). You ask whether this legislation falls afoul of the Federal Driver’s Privacy Protection Act, 18 U.S.C. §2721. In our view, it does not. *. House Bill 3016 amends the Alcoholic Beverage Code by adding section 109.61, which provides: (a) A person may access electronically readable information on a

driver’s license, commercial driver’s license, or identification certificate for the purpose ofcomplying with this code or arule ofthe commission, including for the purpose ofpreventing the persop from committing an offense under this code. (b) A person may not retain information accessed under this section unless the commission by rule requires the information tobe retained. The person may not retain the information longer than the commission requires. (c) Information accessed under this section may not be marketed in any manner.The Honorable Tony Goolsby - Page 2 (JC-0423)
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(d) A person who violates this section commits an ‘offense. An offense under this section is aClass A misdemeanor. Act of May 27’2001’77th Leg., R.S., ch. 1163,200l Tex. Sess. Law Serv. 2486 (to be codified at TEX.ALCO.BEV.CODEANN. 0 109.61). As the bill analysis indicates, House Bill 3016 was drafted in response to an opinion ofthis office, Attorney General Opinion JC-0337 (2001). That opinion considered whether the Department of Public Safety (the “DPS”), in adopting rules under section 521.126 of the Transportation Code to insure that magnetic stripe information “is used only for law enforcement or governmental purposes,” TEX.TRANSP.CODEANN. 8 521.126 (Vernon Supp. 2001)’ could restrict usage of the information provided on the magnetic stripe to law enforcement and government agency personnel acting in their official capacity. See Tex. Att’y Gen. Op. No. JC-0337 (2001). The opinion concluded, based on the language and legislative history ofthe Transportation Code section, that the proposed DPS rule “correctly interpreted the legislature’s intent
. . . [and] that magnetic stripe information contained on adriver’s license or identification card issued by the Department ofPublic Safety may be utilized only by law enforcement and other governmental agency personnel acting in their official capacities.” Id. at 5. / The opinion specifically rejected the view that “an alcoholic beverage retailer’s use of the magnetic stripe information serves a law enforcement purpose because it enables such aretailer to more easily identify, and thus refuse to serve minors, and to determine beyond doubt that aparticular driver’s license or identification card is fraudulent.” Id. at 3. While acknowledging the argument, the opinion took the view “that the DPS has the initial discretion to determine what [law enforcement or governmental] purposes are,” and had done so in the proposed rule in question. Id. House Bill 30 16, however, permits the use ofmagnetic stripe information by private parties to prevent underage drinking or other violations of the Alcoholic Beverage Code. You express concern about the relation of House Bill 3016 to the Federal Driver’s Privacy Protection Act, 18 U.S.C. 0 2721, which provides in relevant part:

(a) IN GENERAL.- A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly d&close or otherwise make available to any person or entity: (1) personal information, as defined in 18U.S.C. 2725(3), about any individual obtained by the department inconnection with amotor vehicle record, except as provided in subsection (b) of this section;The Honorable Tony Goolsby - 

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(b) PERMISSIBLEUSES. - Personal information referred to in subsection (a)
. . .may be disclosed as follows: (1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of aFederal, State, or local agency in carrying out its functions.

(3) For use in the normal course of business by a legi business or its agents, employees, or contractors, but only - timate

(B) if such information as so submitted isnot correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.

(14) For any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety. Driver’s Privacy Protection Act of 1994’18 U.S.C. 82721 (a), (b) (1994 & Supp. V 1999)’ amended hy Pub. L. No. 106-346. 114 Stat. 1356 (2000) (amendment to be codified at 18U.S.C. 92721(a)). The purpose of the Driver’s Privacy Protection Act (the “DPPA”), as the Supreme Court noted inReno v. Condon, 528 U.S. 141,144 (2000), isto establish “aregulatory scheme that restricts the States’ ability to disclose a driver’s personal information without tde driver’s consent.” Representative James Moran, who introduced the legislation in the United States House of Representatives, described the problem the statute seeks to correct thus:

In 34 states across the country, there are virtually no restrictions on who has access to the name and address of licensees. In fact, very few Americans realize that by registering their car or obtaining aThe Honorable Tony Goolsby - Page 4 (JC-0423)

driver’s license through the DMV, they are surrendering their personal and private information to anyone who wants to obtain it. 139 CONG.

REC.E2747-02 (1993) (statement ofRep. James P.Moran). Accordingly, Representative Moran described the DPPA as “safeguard[ing] the privacy of drivers and vehicle owners by prohibiting the release ofpersonal information - including aperson’s name and address - to anyone without a specific business-related reason for obtaining the information.” I& As the statutory language, legislative history, and case law recited above all make clear, it is the dissemination ofprivate information by state departments ofmotor vehicles such as the Texas Department ofPublic Safety that the DPPA seeks to regulate. But the transactions atissue in House Bill 3016 do not directly involve the DPS. The person accessing information from the magnetic stripe has presumably obtained possession ofthe license from the licensee, rather than from the DPS. Accordingly, it does not appear to be the case that in this situation the DPS has, in the terms of the DPPA, “knowingly disclose[d] or otherwise [made] available” any information. (We note as an aside that, given that the magnetic stripe information is “the information printed on the license and aphysical description ofthe licensee,” TEX. TRANSP.

CODE ANN.0521.126(a) (Vernon Supp. 2001)’ atransaction permitted by House Bill 3016 would not seem to implicate the DPPA any more than would any other instance in which a driver’s license was used as proof of age for a commercial transaction.) Assuming for the sake ofargument, however, that acourt were to take the view that allowing the use ofmagnetic stripe information by persons who sell alcoholic beverages to check for underage drinkers did constitute the making available of information protected under the DPPA, we believe a case could be made that transactions permitted under House Bill 3016 are permissible under at least two separate exceptions permitted by the federal statute - the exceptions for use inthe normal course ofbusiness to verify the accuracy ofpersonal information submitted, see 18U.S.C. 8272 1(b)(3) (1994 & Supp. V 1999)’ and for “any other use specifically authorized [by state law]
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. .related to . . .public safety.” Id. tj272 1(b)( 14). While there is little case law interpreting the DPPA, and accordingly little guidance concerning the breadth of the statutory exceptions, we note that subsection (b)(3)‘s exception of “use in the normal course ofbusiness by alegitimate business
.. .to verify the accuracy ofpersonal information submitted by the individual” appears to us precisely to describe the activity popularly known as “carding” by those who sell alcoholic beverages. That is, aperson attempting to purchase such abeverage is asked to provide verification for the claim that he or she is twenty-one years of age. What House Bill 3016 provides is amethod by which that claim may be verified. When the license is provided, its electronic reading assures that the information on the face of the license has not been tampered with. Such ause asthis is exactly the sort excepted by the language of 18U.S.C. 6272 1(b)(3).The Honorable Tony Goolsby - Page 5 (JC-0423)

Further, subsection (b)( 14)’the DPPA’s “catch-all” provision, excepts from its coverage “any other use specifically authorized under the law ofthe State that holds the record, ifsuch use isrelated to the operation of a motor vehicle or public safety.” 18 U.S.C. 9 2721(b)(14) (1994). The laws related to the possession of alcohol by minors are to be found in chapter 106 of the Alcoholic Beverage Code. The public policy which that Code articulates, and in light of which it is to be construed, is stated in section 1.03 of the Code: This code is an exercise ofthe police power ofthe state for the protection ofthe welfare, health, peace, temperance, and safety ofthe people of the state. It shall be liberally construed to accomplish this purpose. TEX.ALCO.BEV.CODEANN. 8 1.03 (Vernon 1995). In light of the fact that preventing minors from acquiring alcoholic beverages is therefore a matter related to the public safety, and the use of magnetic stripe information is specifically authorized by House Bill 3016 for that purpose, as well as for the other reasons articulated above, we conclude that House Bill 3016 does not fall afoul ofthe Federal Driver’s Privacy Protection Act.The Honorable Tony Goolsby - Page 6 (Jc-0423)

SUMMARY House Bill 3016, which permits the use of magnetic stripe information on drivers’ licenses and identification cards issued by the Texas Department of Public Safety for the purpose of compliance with the Alcoholic Beverage Code and rules promulgated by the Alcoholic Beverage Commission, does not violate orconflict with the Federal Driver’s Privacy Protection Act, 18U.S.C. 52721. Yo rs very trul , 4Qb-r JO&N C&RNYN Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General - General Counsel SUSAN D. GUSKY Chair, Opinion Committee James E. Tourtelott Assistant Attorney General, Opinion Committee