Steven Pisano, self-portrait. Flickr.
In the early 1990’s, the U.S. Congress noted that there was misuse of state drivers’ license records. People were accessing these databases and using the information for improper purposes like stalking people or harassing abortion providers or their patients. Very few people would condone such misuse of drivers’ license records nor criticize the law, the Driver’s Privacy Protection Act (or DPPA), enacted to deter such misconduct.
But what if some police officers (or others with free access to the database) simply used it as their address book? Such a use would be improper but would, presumably, result in no harm to anyone. Nevertheless, such misuse would trigger liability of “actual damages but in no event less than $2,500 per violation”.
And what happens when someone like Katherine Ann Sapp, a former 911 dispatcher, finds out she’s been “looked up approximately 60 times” (that $150,000 worth of look-ups if they were for improper purposes (plus award of her reasonable attorneys’ fees))?
And, by the way, how in the world is Ms. Sapp to know whether her information was looked up for proper or improper purposes? 10 of the 60 times? All 60 times? How would she be in a position to know?
Is it sufficient for Ms. Sapp to plead that her driver’s license data was looked at 60 times to state plausible claims of DPPA violations? Or does she have to come up with more evidence that the look-ups were improper? How about if she pleads that 15 of the 60 times, her I.D. was looked up by her husband’s ex-girlfriend who worked for the Brooklyn Center police (which Sapp alleges)? Would that be sufficient for her to bring 15 DPPA claims, at least? 14? 5? 1?
U.S. District Court Judge Donovan W. Frank (D. Minn.) tossed out Ms. Sapp’s lawsuit based on his view that Ms. Sapp’s complaint did not meet the basic requirements of pleading “plausibility,” plus statute of limitations bar on some of her claims, plus a refusal to hold institutional defendants (like county employers) liable for errant employees’ alleged misuse of drivers’ license records. The U.S. Court of Appeals for the Eighth Circuit will hear oral argument on the appeal on March 15.
Hennepin County is a defendant because of a single allegedly improper look-up of Ms. Sapp’s driver’s license data. Hennepin County argues:
Sapp’s Complaint contains no meaningful factual allegations specific to Hennepin County that would plausibly suggest that its [Hennepin County Department of Community Corrections and Rehabilitation (“DOCCR”)] employee accessed her data for ‘personal’ reasons…Even crediting Sapp’s claims that she has not given ‘law enforcement’ any reason to investigate her, the reality is that a DOCCR user of the DVS database may have legitimately accessed her data in connection with an investigation involving her child, her spouse (or an ex-spouse), another family member, a neighbor or friend, or even a person whose name was the same as or similar to hers.
And here, linked, is Sapp’s reply brief in support of her appeal.
We’ll see how this plays out.
I, personally, am no fan of the DPPA, which I think is badly written legislation, imposing significant liability in many cases where the DPPA plaintiffs have suffered literally no harm of any kind. I have argued that the statute’s prohibition on the “misuse” of driver’s license data must require something more than a person’s simply having viewed the data without an officially approved purpose. Interpreting the statute’s prohibition of “obtaining, disclosing, or using” driver’s license data for improper purposes to require some affirmative wrong-doing would nail the bad actors that the statute targeted but would spare the imposition of liability in cases of harmless “look-ups.”
I have made this argument for a DPPA defendant client of mine (others have made the same argument in other DPPA cases). (I invoked “the rule of lenity.”) But Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) rejected my argument. In my view, Judge Frank’s analysis approaches the statute’s overuse from a different angle. We will see whether his analysis fares better on appeal than mine did before Judge Kyle.