"Privacy Driven": Supreme Court Limits Use of Driver Data for Client Solicitation by Attorneys

Does the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-2725, allow lawyers to mine databases maintained by state departments of motor vehicles (DMVs) for the purpose of gathering plaintiffs for an emerging lawsuit? Is an otherwise-prohibited act of solicitation allowed where such a solicitation may facilitate the development of a class action? No, according to the U.S. Supreme Court in Maracich v. Spears (No. 12-25, argued Jan. 9, 2013). A 5-4 majority of the Court yesterday held that attorneys may not use Act-protected information for the primary purpose of client solicitation, even when such solicitation is meant to locate additional plaintiffs for a class action.

The Court’s ruling resolved a conflict in the circuits over the interpretation of several enumerated exceptions to the Act’s general prohibition against disclosing driver data gathered by state DMVs. The first of those exceptions is the “litigation exception,” which allows personal information to be disseminated if it is to be used “in connection with any” court proceedings, including the service of process, investigation in anticipation of litigation, and the execution of enforcement of judgments and orders. 18 U.S.C. § 2721(b)(4) (also known as the “(b)(4) exception”). The Act contains a separate “solicitation” exception, which allows a state DMV to disclose personal information for purposes of surveys, marketing or solicitation, but only if the department has implemented procedures allowing individuals an opportunity to prohibit such disclosures. 18 U.S.C. § 2721(b)(12) (also known as the “(b)(12) exception”).

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