The Constitutionality of the Driver’s Privacy Protection Act: A Fork in the Information Access Road

I. INTRODUCTION * City police departments discovered to have abused the cover of immunity to avoid prosecution for major traffic violations, leaving citizens to cover accident damages caused by at-fault police officers.(1) * Minorities driving through mostly white suburbs found twice as likely to be ticketed for traffic violations as whites.(2) * Drunken snowmobile driver kills child in an accident, yet the snowmobiler's license and licenses of more than 2,000 other snowmobile owners had been suspended for alcohol-related offenses.(3) All of these public safety news stories were constructed with the use of motor vehicle records.(4) And all of these stories--and stories like them--may never again be possible in the wake of the federal Driver's Privacy Protection Act of 1994 (DPPA).(5) The DPPA, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality.(6) Decisions in the Fourth, Seventh, Tenth, and Eleventh Circuit courts over the past year have disputed the DPPA's validity under the Tenth, Eleventh, Fourteenth, and First Amendments. A split among these courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, have drawn increased attention towards the DPPA. The concern for information access in light of the DPPA, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument--or at least brushed to the side. Only one of the courts--the Seventh Circuit--actually examined the DPPA's effect on the First Amendment. This issue should not only be considered as a serious factor, but scrutinized carefully within the discussion surrounding the DPPA's constitutionality, especially since the Act's ramifications now have spread into virtually every corner of the news-gathering process. This Note does not delve with extensive detail into the legal arguments behind dual sovereignty or right to privacy, but rather utilizes these issues generally in order to properly frame a comprehensive discussion about the constitutionality of the DPPA in light of the First Amendment and information access. In addition, rather than focus on the rights of private individuals, this Note centers on the insidious effects of the DPPA on the ability of the news media and commercial institutions to access motor vehicle records. Part II of this Note provides an overarching examination of the DPPA as a statute and as a policy, presenting a detailed look at the legislative history and congressional intent behind the Act as well as its consequent statutory construction. Part III examines the states' options under the DPPA and the difficulty they faced in implementing the Act while simultaneously striving to preserve notions of state sovereignty and information access. Part IV presents the recent decisions of the four circuits currently split over the DPPA's constitutionality, summarizing the arguments presented within Tenth, Fourteenth, Eleventh, and First Amendment contexts. Part V reviews these decisions and the DPPA's ramifications from a First Amendment standpoint and argues in favor of finding the Act unconstitutional for several enumerated reasons. This Note concludes by noting that although the Act may have been well-intended and even necessary on an individual state-by-state bases, the federal DPPA ultimately not only infringes on the First Amendment, but unduly inhibits the news-gathering process and severely restricts the right of information access. II. BACKGROUND OF THE DRIVER'S PRIVACY PROTECTION ACT A. Historical and Legislative Background Senator Barbara Boxer (D-California) introduced the DPPA into the U.S. Senate on November 16, 1993,(7) as an amendment to the Violent Crime Control Act of 1994. …