Rine v. Imagitas, Inc.
| Decision Date | 21 December 2009 |
| Docket Number | No. 08-14880.,08-14880. |
| Citation | 590 F.3d 1215 |
| Parties | Marvin N. RINE, on behalf of himself and all others similarly situated, Jacalyn Smith, on behalf of herself and all others similarly situated, Martin Martinez, on behalf of himself and all others similarly situated, Violet Beckman, on behalf of herself and all others similarly situated, Randall Heavrin, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. IMAGITAS, INC., a Delaware corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Todd S. Heyman, Edward F. Haber, Shapiro Haber & Urmy LLP, Boston, MA, Stephanie J. Hartley, Norwood S. Wilner, Frank Fratello, Jr., Wilner, Hartley & Metcalf, P.A., Jacksonville, FL, Robert Earl Case, Jr., Lake city, FL, for Plaintiffs-Appellants.
Joel Allan Mintzer, Robions, Kaplan, Miller & Ciresi, Minneapolis, MN, John A. DeVault, III, R.H. Farnell, II, Bedell, Dittmar, DeVault & Pillans, P.A., Jacksonville, FL, for Defendant-Appellee.
Abby C. Wright, Mark B. Stern, USDOJ, Civ. Div., Appellate Staff, Washington, DC, Mindy Worly, Columbus, OH, Louis F. Hubener, III, Tallahassee, FL, for Amici Curiae.
Appeal from the United States District Court for the Middle District of Florida.
Before CARNES, FAY and ALARCÓN,* Circuit Judges.
This appeal arises from a series of multi-district litigation cases regarding the disclosure and use of drivers' personal information under the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. §§ 2721-25. The plaintiff-appellants are Florida drivers who received automobile registration renewal mailings from the state, which included advertisements and solicitations. The registration renewals were distributed pursuant to a contract between the Florida Department of Highway Safety & Motor Vehicles ("Florida DHSMV") and the defendant-appellee, Imagitas, Inc.1 ("Imagitas"). The plaintiff-appellants assert that use of personal information by the state or its contractors to send commercial solicitations to non-consenting Florida drivers violated the DPPA. Imagitas maintains that its DriverSource program is a permissible use of drivers' personal information under the DPPA. The district court granted summary judgment holding that "Imagitas has not violated the DPPA in its implementation of the DriverSource program in Florida." In re Imagitas, Inc., Drivers' Privacy Protection Act Litigation, Nos. 3:07-md-2-J-32HTS, 3:06-cv-690-J-32HTS, 2008 WL 977333, at *15 (M.D.Fla. Apr. 9, 2008). We affirm.
States require individuals to provide personal information, such as name, address, telephone number, Social Security number, medical information, and photograph, as a condition of obtaining a driver's license or registering an automobile. See Reno v. Condon, 528 U.S. 141, 143, 120 S.Ct. 666, 668, 145 L.Ed.2d 587 (2000). In the early 1990s, Congress found that the sale of this personal information to individuals and businesses had become a significant source of revenue for many states. See id. at 143-44, 120 S.Ct. at 668. Florida was one such state.
Responding to privacy and safety concerns, Congress enacted the DPPA to regulate the disclosure and resale of an individual's personal information from state motor vehicle records. "The DPPA generally prohibits any state DMV, or officer, employee, or contractor thereof, from `knowingly disclos[ing] or otherwise mak[ing] available to any person or entity personal information2 about any individual obtained by the department in connection with a motor vehicle record.3'" Condon, 528 U.S. at 144, 120 S.Ct. at 668 (quoting 18 U.S.C. § 2721(a)) (alteration in original) (footnotes added).
The DPPA's prohibition against disclosure does not apply if a driver consents to the release of their personal information. As originally enacted, the DPPA contained an opt-out provision which allowed individuals to request that their personal information not be released for marketing purposes. See Pub.L. 103-322, 108 Stat. 1796, § 300002. If a driver failed to opt-out, their consent to the release of personal information was implied. However, in October 1999 Congress amended the DPPA to change the opt-out provision to an express consent opt-in requirement. See Pub.L. 106-69, 113 Stat. 986, §§ 350(c), (d), and (e). Under the amended DPPA, states must "obtain a driver's affirmative consent to disclose the driver's personal information for use in surveys, marketing, solicitations, and other restricted purposes." Condon, 528 U.S. at 145, 120 S.Ct. at 669.
In addition to the express consent provision, the DPPA contains a number of statutory exceptions to the general prohibition against disclosure of drivers' personal information. See id. In fact, the DPPA requires disclosure of personal information to ensure compliance with various federal statutes concerning motor vehicle safety, theft, and emissions. See 18 U.S.C. § 2721(b). The DPPA also permits disclosure of personal information for a number of limited purposes. See id. One such purpose is to allow government agencies to carry out their functions. See 18 U.S.C. § 2721(b)(1). Under that exception, disclosure is permitted "[f]or use by any government agency" or "any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions." Id.
While the DPPA primarily addresses the disclosure of drivers' personal information, the DPPA also makes it "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) (emphasis added). Thus, third parties who obtain drivers' personal information for other than a permissible use, are in violation of the DPPA. To ensure compliance, the DPPA provides a civil cause of action to drivers whose personal information has been obtained, disclosed, or used by a person4 in violation of the DPPA. See 18 U.S.C. § 2724.
As mentioned previously, Florida has a history of generating revenue through the sale of drivers' personal information. In May 2004, almost four years after the effective date of the DPPA amendment, Florida amended its public records statute to comply with the DPPA's express consent requirements. See Fla. Stat. § 119.07(3)(aa)(12). However, Florida continued to utilize drivers' personal information for advertising purposes through a newly formed partnership with the marketing company Imagitas. In July 2004, Imagitas entered into a five year contract with the Florida DHSMV to develop, produce, and distribute registration renewal notices to Florida drivers in participating counties.5 The registration renewal notices were mailed in official envelopes, which included public service and commercial advertising inserts. Florida's contract with Imagitas has since ended.
In accordance with their agreement, Imagitas mailed renewal notices to Florida drivers whose motor vehicle registration was scheduled to expire the following month. Imagitas placed public service information mandated by Florida law and commercial solicitations from it's client-advertisers in the renewal envelopes. Imagitas marketed this service to advertisers as its DriverSource program. Advertisers included Ford Motor Company, Sirius Radio, Home Depot, and DirecTV among others. Advertising revenues were intended to offset the costs of producing and mailing registration renewals, saving Florida counties from the expense.6 After program costs and overhead were covered, any remaining profits were shared by Florida and Imagitas.7
The entire DriverSource program was subject to DHSMV review and Florida controlled all content within the renewal envelopes. Under the terms of the contract, Florida approved each advertisement in writing and retained the right to reject any ads that "may conflict with the best interest of the state at the [DHSMV's] discretion." DHSMV Contract No. M001-05. In addition, the terms of the contract required the advertising to be in accordance with Florida Statute § 283.58, which authorizes state agencies to "[e]nter into agreements with private vendors for the publication or production of such public information materials ... in return for the right to select, sell, and place advertising that publicizes products or services related to and harmonious with the subject matter of the publication." Fla. Stat. § 283.58(1)(a).
The Florida DHSMV periodically furnished Imagitas with both a renewal file and a registration file for the DriverSource program. The renewal file, which was updated monthly, contained information on only those drivers scheduled to receive a reminder notice that month. The registration file, which was updated weekly, contained information on all registered drivers within Florida. Together, these files allowed Imagitas to generate a "household view," which included detailed information about all registered drivers at a particular address. The "household view" allowed Imagitas to selectively target advertising based not only on the vehicle that was up for renewal, but on all vehicles owned by drivers living in the same household. During negotiations with the DHSMV, Imagitas maintained that the "household view" was absolutely critical to creating an effective and economically sustainable advertising program. Neither file was released by Imagitas to its client-advertisers and such release was expressly forbidden by its contract with the DHSMV. Under the contract, Florida retained full ownership of both the renewal and registration files. As such, Imagitas never acquired ownership rights in any of Florida's data.
In addition to drivers' personal information, Imagitas analyzed drivers' vehicle information to develop a marketing profile for each household. Imagitas's proprietary segmented advertising model used the vehicle identification number, the date of purchase, and the five-digit zip code in determining...
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