Supreme Court Holds That Solicitation of Clients is Not a Permitted Use Under the Driver's Privacy Protection Act

On June 19, 2013, in Maracich v. Spears, No. 12-25, the Supreme Court of the United States issued an opinion interpreting the Driver’s Privacy Protection Act (the DPPA), which prohibits the use of personal information from motor vehicle records except for 14 specifically enumerated purposes. In an opinion written by Justice Kennedy, the Court held that if an attorney’s predominant purpose in contacting individuals whose addresses were obtained from motor vehicle records is the solicitation of clients, then the use of the information is not permitted under the DPPA’s “litigation exception,” one of the act’s permitted purposes. The 5-4 Maracich opinion resolved a split among the circuits about the interpretation of the litigation exception, which provides that motor vehicle record information may be used “in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self regulatory body, including the service of process, investigation in anticipation of litigation, and the execution of judgments and order, or pursuant to an order of a Federal, State, or local court.” 18 U.S.C. § 2721(b) (4). Justice Kennedy’s opinion, in which Justices Roberts, Thomas, Breyer, and Alito joined, set forth a “predominant purpose” test as the means to determine whether an individual’s obtainment and use of motor vehicle information is permitted by the litigation exception.

That is, if an attorney’s predominant purpose in obtaining or using motor vehicle information is the solicitation of clients (as contrasted with developing the factual basis for the complaint, locating witnesses, identifying additional defendants, or performing any other investigative function relating to litigation), then that obtainment or use is not permitted by the litigation exception. Yet despite this relatively narrow holding, it is the “predominant purpose” test itself that may be the most important legacy of the Maracich opinion, as that test establishes how courts likely will address the permissibility of how motor vehicle information is used in the future.

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