Staking Out the Border Between Comandeering and Conditional Preemption: Is the Driver’s Privacy Protection Act Constitutional Under the Tenth Amendment?

Congress passed the Driver’s Privacy Protection Act of 1994 (“DPPA”) in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles (“DMV”) records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the use of DMV information by murderers, robbers, and stalkers to identify their victims. In California, a man who had hired a private detective to obtain the address of actress Rebecca Shaeffer from the state department of motor vehicles brutally murdered her in the doorway of her Los Angeles apartment. Another California resident copied down the license plate numbers of five young women and sent them threatening letters after obtaining their home addresses from the California DMV. Anti-abortion groups have long used license plate numbers of cars parked in front of abortion clinics to track down and harass women seeking abortions by obtaining their addresses from DMV records. The abandon with which DMVs sell the complete contents of their records on registered drivers to national marketing companies is equally disconcerting. These national marketers specialize in identifying the overweight, divorced, wealthy, or short in stature in order to assist enterprises eager to target the consumer base most responsive to their form of solicitation. Because the compilation, analysis, and distribution of such information is in fact an important national industry, accounting for five percent of U.S. employment and $350 billion in annual revenue, the regulation of that industry is an area of immediate national concern.