Feminist Law Professors

Over at Prawfsblawg Scott Moss asked readers for their favorite bad legal argument. On entrant was the South Carolina Attorney General Charlie Condon’s position in Reno v. Condon. You can listen to here. The stupid starts really flying around 30 minutes in.

Although not yet a part of the University of South Carolina faculty when it was decided, I’d already accepted my offer here and was bemused when several of my future colleagues took pains to point out that unlike most political figures in the state, Condon was NOT a graduate of the University of South Carolina School of Law. (It is not uncommon to see bumper stickers in my neighborhood that say “Friends don’t let friends go to Duke,” but that is where Condon obtained his law degree.)

Condon had mounted a “states rights” challenge to The Driver’s Privacy Protection Act of 1994. He lost badly. All of the Supreme Court Justices voted to overrule the 4th Circuit’s validation in the case, and C.J. Rehnquist write the opinion. Here are the opening paragraphs, with emphasis added:

The Driver’s Privacy Protection Act of 1994 (DPPA or Act), 18 U.S.C. § 2721:2725 (1994 ed. and Supp. III), regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs). We hold that in enacting this statute Congress did not run afoul of the federalism principles enunciated in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997).

The DPPA regulates the disclosure and resale of personal information contained in the records of state DMVs. State DMVs require drivers and automobile owners to provide personal information, which may include a person’s name, address, telephone number, vehicle description, Social Security number, medical information, and photograph, as a condition of obtaining a driver’s license or registering an automobile. Congress found that many States, in turn, sell this personal information to individuals and businesses. See, e.g., 139 Cong. Rec. 29466, 29468, 29469 (1993); 140 Cong. Rec. 7929 (1994) (remarks of Rep. Goss). These sales generate significant revenues for the States. See Travis v. Reno, 163 F.3d 1000, 1002 (CA7 1998) (noting that the Wisconsin Department of Transportation receives approximately $8 million each year from the sale of motor vehicle information).

The DPPA establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent. The DPPA generally prohibits any state DMV, or officer, employee, or contractor thereof, from”knowingly disclos[ing] or otherwise mak[ing] available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record.”18 U.S.C. § 2721(a). The DPPA defines”personal information”as any information”that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information,”but not including”information on vehicular accidents, driving violations, and driver’s status.” §2725(3). A”motor vehicle record”is defined as”any record that pertains to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.” §2725(1).

The DPPA’s ban on disclosure of personal information does not apply if drivers have consented to the release of their data. …

So the “state’s right” that Condon was fighting for was the right of South Carolina to continue selling “personal information, which may include a person’s name, address, telephone number, vehicle description, Social Security number, medical information, and photograph” of anyone who obtained a South Carolina Driver’s License WITHOUT THEIR CONSENT.

Have you spotted the feminist issue yet? As this EPIC page notes:

The DPPA was passed in reaction to the a series of abuses of drivers’ personal information held by government. The 1989 death of actress Rebecca Schaeffer was a prominent example of such abuse. In that case, a private investigator, hired by an obsessed fan, was able to obtain Rebecca Schaeffer’s address through her California motor vehicle record. The fan used her address information to stalk and to kill her. Other incidents cited by Congress included a ring of Iowa home robbers who targeted victims by writing down the license plates of expensive cars and obtaining home address information from the State’s department of motor vehicles.

Senator Barbara Boxer, who sponsored 103 S. 1589, a version of the DPPA, cited other examples where stalkers were able to find victims by simply visiting a DMV.

Condon thought that the ability of South Carolina to generate money from the non-consensual sale of personal information was more important than giving people, not only women but disproportionately women, some semblance of privacy and security in their homes. And scarily enough, he got two federal courts to go along with this position in the guise of “states rights.” Here is a final excerpt from the Supreme Court’s decision:

Following the DPPA’s enactment, South Carolina and its Attorney General, respondent Condon, filed suit in the United States District Court for the District of South Carolina, alleging that the DPPA violates the Tenth and Eleventh Amendments to the United States Constitution. The District Court concluded that the Act is incompatible with the principles of federalism inherent in the Constitution’s division of power between the States and the Federal Government. The court accordingly granted summary judgment for the State and permanently enjoined the Act’s enforcement against the State and its officers. See 972 F. Supp. 977, 979 (1997). The Court of Appeals for the Fourth Circuit affirmed, concluding that the Act violates constitutional principles of federalism. See 155 F.3d 453 (1998). We granted certiorari, 526 U.S. 1111 (1999), and now reverse.

–Ann Bartow