WASHINGTON -- Earlier this year, citizens in Colorado, Florida and South Carolina were enraged to learn that their states were quietly selling driver's license photographs to Image Data Corp., a New Hampshire fraud-fighting company.
In a case that touches on, but doesn't directly relate to that controversy, the U.S. Supreme Court is reviewing the issue of how freely states can release driver's license information. Oral arguments in the case were set for Wednesday. The lawsuit drawing the court's scrutiny, Condon v Reno, pits South Carolina against the federal government.
The Magnolia State wants to kill the Driver's Privacy Protection Act (DPPA), a 1994 federal law restricting states' disclosure of driver's license information.
South Carolina says DPPA violates the 10th Amendment of the U.S. Constitution, which holds that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Pacific Legal Foundation, a Sacramento-based conservative public law organization that filed a friend-of-the-court brief in Condon v Reno on behalf of South Carolina, agrees.
"This, we thought, was a pretty straightforward case of state powers being infringed," Pacific Legal Foundation spokeswoman Anne M. Hayes says. "Our view on issues like this is that these state government policy choices are ones that ought to be made by state citizens."
Lower federal courts have disagreed on whether DPPA is enforceable. The 10th U.S. Circuit Court of Appeals ruled that the law didn't violate Oklahoma's rights, and the 7th U.S. Circuit Court of Appeals made a similar ruling with regard to Wisconsin.
On the other hand, when the 4th U.S. Circuit Court of Appeals in Chicago reviewed Condon v Reno last year, it ruled that DPPA was unconstitutional.
Federal attorneys appearing before the 4th Circuit's three-judge panel asserted that South Carolina was stepping on the privacy rights of its citizens by making driver's license information readily available.
The court disagreed in a 2 to 1 ruling, pointing out that "a State-issued driver's license is often needed to cash a check, use a credit card, board an airplane, or purchase alcohol. We seriously doubt that an individual has a constitutional right to privacy in information routinely shared with strangers."
The issue was pushed to the forefront this year, when South Carolina, Florida and Colorado sparked furors in their dealings with Image Data. The company paid each state to use driver's license photos in its "TrueID" system, which fights fraud by allowing sales clerks to retrieve postage stamp-size photos of customers using checks to buy merchandise.
At least 100,000 angry South Carolinians requested that information about them not be used by Image Data, prompting the state to cancel its contract with the company.
Florida Gov. Jeb Bush stopped the sale of driver's licenses from his state to Image Data, and Colorado also backed out of its contract.
All states collect a wealth of information about their citizens, including names, dates of birth, addresses, physical descriptions and photographs, in the course of registering and licensing motorists.
The Driver's Privacy Protection Act restricts the release of driver records to the general public, but allows for exceptions, to include lawyers. The law was sponsored by Democratic U.S. Sen. Barbara Boxer (Calif.), and prompted by the death of actress Rebacca Schaeffer. She was killed in her California home in 1989 by a man who employed a private detective to obtain Schaeffer's driver's records.
When DPPA went into effect in September 1997, it provided civil and criminal penalties for violators. A newer version instead makes scofflaw states subject to the loss of federal highway funds.
DPPA runs counter to policies in 34 states that make it relatively easy to access driver's license information.
One state on the opposite end of the spectrum is California, which has tighter restrictions than the DPPA's, according to Hayes, with the Pacific Legal Foundation.
Fifteen other states that make it difficult to obtain driver's information are Alaska, Arkansas, Alabama, Delaware, Georgia, Hawaii, Kentucky, Oklahoma, New Mexico, New Hampshire, New Jersey, Nevada, Pennsylvania, Utah and Virginia.
South Carolina became the first state to challenge the Driver's Privacy Protection Act, in a lawsuit filed by Attorney General Charlie Condon against U.S. Attorney General Janet Reno and the United States.
"I'm for protecting privacy, but also for following the Constitution," Condon told the The State, a Columbia, S.C. newspaper. "We believe South Carolina should be run by South Carolinians."
Alabama has also filed a lawsuit to stop implementation of the Driver's Privacy Protection Act.
South Carolina and Alabama may prevail when the issue goes before the Supreme Court, given its recent track record of siding with state governments over the federal government.