[118739] in Cypherpunks
IP: [FP] Senate Passes [another] Bill On Drivers' Records
daemon@ATHENA.MIT.EDU (Robert Hettinga)
Thu Oct 7 00:08:57 1999
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Date: Wed, 6 Oct 1999 23:49:18 -0400
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From: Robert Hettinga <rah@shipwright.com>
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Subject: IP: [FP] Senate Passes [another] Bill On Drivers' Records
Date: Wed, 6 Oct 1999 19:48:57 -0500
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SCAN THIS NEWS
9/6/99
Senate Passes [another] Bill On Drivers' Records
Congress has just approved yet one more unconstitutional dictate to be
imposed upon the states with regard to driver's records and car title
registrations. Among the amendments to the recently approved transportation
appropriations bill was a measure to prohibit states from releasing
information maintained on individuals within the respective states' driver's
licensing databases.
This is the same bill which includes the amendment to overturn the National
ID law enacted in 1996 and slated to go into effect on October 1, 2000,
absent this repeal action measure.
The ink is not yet fully dry on the three (3) separate federal court
opinions wherein the courts correctly ruled that the misnamed Driver's
Privacy Protection Act (DPPA) was an unconstitutional infringement upon
purely state matters. The DPPA was a flagrant violation of state
sovereignty, the federal courts said. Those cases are now on appeal to the
United States Supreme Court where it is fully expected that the lower
courts' decisions will be upheld.
The intentionally misnamed DPPA created a great deal of confusion amongst
wannabe privacy activists who thought the measure was a good deal for
privacy. On the contrary, few understood that the real purpose of the DPPA
was to secure federal control over the state records.
Many, who made only a cursory study into the Act, overlooked the fact that
the "Privacy Protection Act" actually _required_ states to release driver
information for a long list of purposes. Included among the "approved"
releases were dissemination to federal agencies, and perhaps the most
perplexing, the sale of information to private database companies such as
Image Data. That company was later implicated in a scheme working with the
Secret Service to set up a huge database of driver's information --
including digital photos. For their effort, Image Data was paid $1.5 million
dollars by the government agency.
In Printz v. The United States, the United States Supreme Court stated:
: "We held in New York that Congress cannot compel the States to
: enact or enforce a federal regulatory program. Today we hold
: that Congress cannot circumvent that prohibition by conscripting
: the State's officers directly. The Federal Government may neither
: issue directives requiring the States to address particular
: problems, nor command the States' officers, or those of their
: political subdivisions, to administer or enforce a federal
: regulatory program. It matters not whether policymaking is
: involved, and no case-by-case weighing of the burdens or
: benefits is necessary; such commands are fundamentally
: incompatible with our constitutional system of dual sovereignty.
This time, the coy senators made the edict funding-contingent in an effort
to skirt the constitutional prohibitions. However, in the very same case as
mentioned above, Printz, the Supreme Court stated:
: "The Government points to a number of federal statutes enacted
: within the past few decades that require the participation of
: state or local officials in implementing federal regulatory
: schemes. Some of these are connected to federal funding measures,
: and can perhaps be more accurately described as conditions upon
: the grant of federal funding than as mandates to the States;
: others, which require only the provision of information to the
: Federal Government, do not involve the precise issue before us
: here, which is the forced participation of the States' executive
: in the actual administration of a federal program. We of course
: do not address these or other currently operative enactments that
: are not before us; it will be time enough to do so if and when
: their validity is challenged in a proper case. For deciding the
: issue before us here, they are of little relevance. Even assuming
: they represent assertion of the very same congressional power
: challenged here, they are of such recent vintage that they are
: no more probative than the statute before us of a constitutional
: tradition that lends meaning to the text. Their persuasive force
: is far outweighed by almost two centuries of apparent
: congressional avoidance of the practice. Compare INS v. Chadha,
: 462 U. S. 919 (1983), in which the legislative veto, though
: enshrined in perhaps hundreds of federal statutes, most of which
: were enacted in the 1970's and the earliest of which was enacted
: in 1932, see id., at 967-975 (White, J., dissenting), was
: nonetheless held unconstitutional.
What the Court effectively said was, although the case before them was not a
mandate conditioned upon federal funding, it appeared that all such
funding-contingent mandates are just as unconstitutional as the direct ones.
This issue has not yet been before the court, though many such
funding-contingent mandates have been enacted. Clearly, it is not beneficial
for the states to bite the hand that feeds them.
And why should Congress care? It costs them nothing to enact
unconstitutional laws. If they enact enough of them it will be impossible
for them all to be challenged in court. Ultimately, they achieve their
objective, which is more power and control for the federal government --
notwithstanding contrary constitutional principles.
The simple solution is for states to quite maintaining files and dossiers on
citizens. Why should the state keep records on innocent citizens in the
first place? If society concludes that it is a legitimate function of the
state to "qualify" driver's and then issue "certificates of qualification"
(which is all a driver's license is supposed to be), then let them issue
them and not keep records of it. Leave it up to each individual to keep up
with their own driver qualification records.
Scott McDonald
----------------------
[begin article]
Senate Passes Bill On Drivers' Records
http://www.washingtonpost.com/wp-srv/business/feed/a18091-1999oct5.htm
By Robert O'Harrow Jr.
Washington Post Staff Writer
Tuesday, October 5, 1999; Page E01
States would have to get drivers' permission before releasing personal data
from their motor vehicle records under a provision of the transportation
appropriations bill approved by the Senate yesterday.
The provision is one of the most aggressive efforts in recent years to
address privacy concerns by curbing the government sale of names, addresses,
Social Security numbers, license photos and other personal data to direct
marketers, information brokers and others.
It attempts to strengthen an earlier effort by Congress to restrict the use
of drivers' information, but it also raises new questions about open records
traditions and the rights of states to decide how to use information they
gather.
Next month, the Supreme Court will decide the constitutionality of the
Drivers Privacy Protection Act, which prohibited states from selling
information drivers provided, except to direct marketers, police and some
others who were listed as permissible buyers. The law, which took effect in
1997, was challenged in several states as an unconstitutional infringement
of states rights.
The new, tighter restrictions were attached to an appropriations bill to try
to get around those constitutional questions. The provision's sponsors
believe that if states can choose to comply--as technically they can under
the transportation bill, risking a possible loss of funding for projects if
they don't--states'-rights issues will not be raised. The provision has few
enforcement mechanisms attached, however, and would have to be renewed by
Congress each year to remain in force, so it is unclear how many states will
comply.
The restrictions, approved by the House on Friday, have two parts. The first
requires states to obtain consent before releasing to anyone sensitive data
such as details about drivers' medical conditions or disabilities, license
photos or Social Security numbers. The second would require states to get
permission before releasing less sensitive information--including names,
ages and addresses--to a third party for marketing purposes.
The changes would take effect next June. The bill will now go to President
Clinton, who is expected to sign it.
Privacy advocates and marketing specialists agreed the provision could have
a broad impact on the way personal information is gathered and used, in part
because it requires individuals to give consent before information is
shared. "It's a huge step," said Susan Fournier, a Harvard University
marketing professor.
Gregory T. Nojeim, legislative counsel for the American Civil Liberties
Union, predicted it will be "the opening salvo" in a decade-long fight over
privacy on the Hill. "Now, drivers will have more control over their
personal information," he said.
For years, states have raised millions of dollars selling information from
their motor vehicle databases. Direct marketers have relied on the records
as a source of names, addresses and other information. Automobile parts
dealers contact drivers with certain kinds of cars, for example, and
eyeglass manufacturers target people listed as having vision problems.
Information services such Experian Information Solutions Inc., Acxiom Corp.
and others have come to rely on drivers records as one layer of information
they use in highly refined marketing dossiers about millions of Americans.
Now, by requiring consent from drivers, marketers worry that Congress is
making it harder than ever for them to conduct business in the database age.
"It's going to have a widespread impact throughout the country," said
Stephen Altobelli, spokesman for the Direct Marketing Association.
Some open records advocates also worry about the impact. Gregg Leslie,
acting executive director of the Reporters Committee for Freedom of the
Press, an advocacy group in Virginia, said drivers' records are an important
source of information about public officials and others. "The privacy
interests, while important, should not outweigh the public interest," he
said.
Sen. Richard Shelby (R-Ala.) began pressing for the change last spring.
"Private information is too available," Shelby said, adding that the
Internet has made it "easy and cheap for almost anyone to access very
personal information."
"I believe there should be a presumption that personal information will be
kept confidential," he said.
© 1999 The Washington Post Company
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[end article]
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Robert A. Hettinga <mailto: rah@ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
