Johnson v. West Publ'g Corp.

• Decision Date: 03 August 2011
• Docket Number: Case No. 2:10–CV–04027–NKL.
• Citation: 801 F.Supp.2d 862
• Parties: Marcy A. JOHNSON, individually and on behalf of others similarly situated, Plaintiff, v. WEST PUBLISHING CORP., Defendant.
• Court: U.S. District Court — Western District of Missouri

801 F.Supp.2d 862

Marcy A. JOHNSON, individually and on behalf of others similarly situated, Plaintiff,

v.WEST PUBLISHING CORP., Defendant.

Case No. 2:10–CV–04027–NKL.

United States District Court,W.D. Missouri,Central Division.

Aug. 3, 2011.

Blake Strautins, Ben Barnow, Barnow and Associates, P.C., Aron Robinson, Chicago, IL, Ralph K. Phalen, Ralph K. Phalen, Attorney at Law, Mitchell L. Burgess, Burgess & Lamb, P.C., Matthew D. Meyerkord, Meyerkord Law Firm of Kansas City, Kansas City, MO, for Plaintiff.

Kurt D. Williams, Nick J. Kurt, Berkowitz, Oliver, Williams, Shaw & Eisenbrandt, LLP, Kansas City, MO, Christopher Cwalina, Washington, DC, David Z. Smith, Diane Green–Kelly, Reed Smith, LLP, Chicago, IL, for Defendant.

ORDER

NANETTE K. LAUGHREY, District Judge.

This case concerns the sale by various states of their driver's license databases to Defendant West Publishing Corp. (“West”), which then disseminates the personal information to third parties. The first question presented is whether the Driver's Privacy Protection Act (“DPPA”) permits a reseller to obtain driver's license information from a state when its sole purpose is to resell the information to third parties. The second question presented is whether a reseller can disclose the entire database to a business or individual having only a potential future use for some of the information sold, so long as there is no evidence of specific misuse, such as identity theft or stalking. The majority of courts which have decided these questions have concluded that the DPPA permits the practices. The Court disagrees.

I. The Driver's Privacy Protection Act

In 1994, Congress enacted the DPPA to protect the privacy of drivers. The DPPA makes it generally “unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.” 18 U.S.C. § 2722(a). Section 2721(b) is the first of two sections central to this case. It lists the fourteen permissible uses that are exceptions to the general rule prohibiting obtainment and disclosure of drivers' personal information. Those uses are:

(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 a Federal, State, or local agency in carrying out its functions.

(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.

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

(A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and

(B) if such information as so submitted is not 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.

(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.

(5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.

(6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating or underwriting.

(7) For use in providing notice to the owners of towed or impounded vehicles.

(8) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this subsection.

(9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under chapter 313 of title 49.

(10) For use in connection with the operation of private toll transportation facilities.

(11) For any other use in response to requests for individual motor vehicle records if the State has obtained the express consent of the person to whom such personal information pertains.

(12) For bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.

(13) For use by any requester, if the requester demonstrates it has obtained the written consent of the individual to whom the information pertains.

(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.

18 U.S.C. § 2721(b).¹

The second section in dispute provides that an “authorized recipient” may resell driver's license information under certain limited circumstances:

(c) Resale or redisclosure.—An authorized recipient of personal information (except a recipient under subsection (b)(11) or (12)) may resell or redisclose the information only for a use permitted under subsection (b) (but not for uses under subsection (b)(11) or (12)). An authorized recipient under subsection (b)(11) may resell or redisclose personal information for any purpose. An authorized recipient under (b)(12) may resell or redisclose personal information pursuant to subsection (b)(12). Any authorized recipient (except a recipient under (b)(11)) that resells or rediscloses personal information covered by this chapter must keep for a period of 5 years records identifying each person or entity that receives information and the permitted purpose for which the information will be used and must make such records available to the motor vehicle department upon request.

18 U.S.C. § 2721(c).

The majority of courts reading these sections have concluded that they permit wholesale resellers to obtain in bulk every driver's personal information so long as there is no evidence of specific misuse. See, e.g., Taylor v. Acxiom Corp., 612 F.3d 325 (5th Cir.2010). In other words, a reseller is not limited to obtaining personal information only for a specific customer qualified to use it by the DPPA, nor need the reseller itself have a right to the information under one of the fourteen exceptions to the DPPA's rule of nondisclosure. In addition, the information can be sold in bulk to purchasers, even though the purchaser is only authorized under the DPPA to receive one piece of information. For example, according to the reasoning of Taylor and the majority of courts, since the DPPA permits driver's license information to be disclosed “for use in providing notice to the owners of towed or impounded vehicles,” 18 U.S.C. § 2721(b)(7), a Cabool, Missouri tow truck operator may obtain the entire license database, including highly restricted personal information such as social security numbers, because one day the tow truck operator might need a single piece of information from the database. The majority of courts reason that so long as the private information is not actually used in a “prohibited” manner there is no violation of the DPPA. Yet the DPPA never explicitly lists any prohibited uses; rather, it generally prohibits all but the fourteen permissible uses enumerated in section 2721(b).

Having reviewed the language of the DPPA and its legislative history, the Court concludes that Congress did not intend the DPPA to authorize this widespread dissemination of private information untethered from the very uses that Congress listed in the DPPA.

II. Background

On February 19, 2010, Plaintiff Marcy Johnson filed her Complaint [Doc. # 1], which made the following allegations. Defendant West is a corporation specializing in legal publishing, online information delivery, and various other legal information products. West has obtained, and continues to obtain, large databases of motor vehicle records containing personal information from each of the following states: Alabama, Alaska, Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Ohio, Tennessee, Texas, Utah, Wisconsin, Wyoming, and the District of Columbia (the “States”).

The information databases obtained by Defendant West from the States contained “personal information” and “highly restricted personal information”—as defined by the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721 et seq.—belonging to millions of licensed drivers, including Johnson and the putative class members. Defendant made the information available for search and sale on the Internet via websites that it controlled and operated. The personal information or highly restricted personal information of Plaintiff and the putative class members was obtained and disseminated by Defendant for purposes not permitted under the DPPA. Plaintiff has suffered damages as a result of Defendant's conduct.

Plaintiff Johnson's Complaint proposes the following class definition:

All individuals with a motor vehicle registration on file in the States of Alabama, Alaska, Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Louisiana, Main[e], Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Ohio,...