Norma Wiles v. Ascom Transport System, Inc. , 478 F. App'x 283 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0448n.06
FILED
No. 11-5342
Apr 30, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
NORMA WILES, THOMAS WILES, )
THERESA GIBSON and WANTA EVITT, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiffs-Appellants, ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
v. )
) OPINION
ASCOM TRANSPORT SYSTEM, INC., dba )
ACS TRANSPORT SOLUTIONS, INC., )
)
Defendant-Appellee. )
BEFORE: COLE and McKEAGUE, Circuit Judges; and ZATKOFF, District Judge.*
Zatkoff, District Judge. Plaintiffs-Appellants, each of whom is a Kentucky resident holding
a driver’s license issued by the Commonwealth of Kentucky, filed this suit on behalf of themselves
and all others similarly situated, claiming that Defendant-Appellee1 violated the Driver’s Privacy
Protection Act, 18 U.S.C. § 2721 et seq. (the “DPPA”), Plaintiffs’ common law right to privacy and
42 U.S.C. § 1983 when Defendant obtained in bulk, used, resold and/or disclosed Plaintiffs’ personal
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
Defendant-Appellee Ascom Transport System, Inc., dba ACS Transport Solutions, Inc., is
the only defendant named in the appeal, as it was Ascom Transport System, Inc.’s motion to dismiss
the district court decided and, as a result, dismissed the action in its entirety. The other named
defendants to Plaintiffs’ lawsuit at the time of its dismissal were Downtown Owensboro, Inc.; Jones
& Wenner Insurance; Nationwide Debt Recovery Service, Inc.; Tennessee Valley Authority; and
Xerox Corporation.
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information contained in the Commonwealth of Kentucky’s motor vehicle records without a
permissible purpose under the DPPA.2 The district court held that the bulk purchase of motor
vehicle records without a specific need for every record does not violate the DPPA and ultimately
granted Defendant’s motion to dismiss Plaintiffs’ Third Amended Complaint. We affirm.
I. BACKGROUND
On January 10, 2010, Plaintiffs instituted a proposed class action lawsuit against numerous
defendants. Plaintiffs sought protection from, and the recovery of statutory damages for, each
defendant’s allegedly unlawful obtainment, use and/or disclosure of Plaintiffs’ protected personal
information contained in the motor vehicle records of the Commonwealth of Kentucky’s
Transportation Cabinet (hereinafter, the “K.T.C.”). Over the course of the next year, Plaintiffs filed
numerous complaints against an ever-evolving list of defendants, numerous motions to dismiss were
filed and numerous defendants were dismissed for a variety of reasons. Ultimately, the district court
approved Plaintiffs’ motion to file a third amended complaint on December 3, 2010, and Plaintiffs
filed their Third Amended Complaint the same day.
The Third Amended Complaint contained allegations against Defendant and each of the
defendants set forth in footnote 1, supra. Plaintiffs alleged, in relevant part, the following:
17. Defendants’ [sic] obtained the K.T.C. Database, and continued
updates thereto, in violation of relevant state and federal laws[,] including certain
provisions and protections afforded to each and every Kentucky resident by the
2
An amicus brief in support of allowing bulk disclosures under the DPPA was filed by The
Coalition for Sensible Public Records Access, a non-profit organization dedicated to promoting the
principle of open public records access, and The Consumer Data Industry Association, an
international trade association.
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[DPPA]. More specifically, the Defendants knowingly obtained Plaintiffs’ protected
personal information outside of any of the requisite permissible purposes enumerated
by the DPPA and in violation of Plaintiffs’ privacy rights. Moreover, each Defendant
. . . misrepresented to the K.T.C. that they [sic] had a permissible purpose for each
and every record and as to the personal information of each and every person therein
when they [sic] did not. Defendants knew that they had (and know they have) no
permissible purpose for each and every private personal record but obtained them
regardless.
*****
25. The K.T.C. only sells “personal information” from a motor vehicle
record to “persons” who represent that they have a lawful purpose for the
information.
26. Once a “person” certifies to the K.T.C. that they have [sic] a lawful
purpose for the personal information and/or have obtained requisite consent, the
K.T.C. provides that person with a copy of the ENTIRE DATABASE of names,
addresses and other personal information - millions of persons’ DPPA-protected
personal information. In other words, the K.T.C. simply hands over to a third-party
the DPPA-protected personal information of millions of Kentuckians. Of course
before doing so, the obtaining party must agree to indemnify the K.T.C. for any
damages as a result of obtainment.
*****
29. When each of the Defendants purchased the ENTIRE DATABASE,
those Defendants executed a contract with the K.T.C. whereby they specifically
claimed to possess a proper purpose for obtaining the information. Such was clearly
a misrepresentation because the Defendants had no purpose or intended use for the
private information of each and every personal record included in the database.
*****
31. First, each of the Defendants . . . violated the DPPA by unlawfully
obtaining the “personal information” of the Plaintiff[s] and putative class from the
K.T.C.’s “motor vehicle records” . . . Each of the Defendants also violated the DPPA
by unlawfully using and disclosing the “personal information” of the Plaintiff[s] and
putative class from the K.T.C.’s “motor vehicle records” . . .
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32. Second, each of the Defendants did not, and still do not, have a
permissible purpose to purchase the K.T.C.’s ENTIRE DATABASE of DPPA
protected personal information. Moreover, none of the Defendants obtained the
information with prior written consent thereto by the Plaintiffs (which, as previously
stated, include members of the Putative Class).
Based on the foregoing allegations, Plaintiffs claimed that Defendant violated: (1) the DPPA by
knowingly obtaining (Count I), disclosing (Count II) and using (Count III) personal information from
K.T.C. motor vehicle records for a purpose not permitted under the DPPA, (2) Plaintiffs’ common
law right to privacy (Count IV), and (3) 42 U.S.C. § 1983 (Count V).
On December 3, 2010, the district court also issued a memorandum opinion and order.
Relying on the reasoning set forth in a recent Fifth Circuit case, the district court held that the bulk
purchase of vehicle records without a specific need for every record does not violate the DPPA. See
Taylor v. Acxiom Corp., 612 F.3d 325 (5th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 908
(2011) (“A person who buys DMV records in bulk does so for the purpose of making permissible
actual use of information therein under [the DPPA], even if that person does not actually use every
single item of information therein”). The district court also instructed the parties that it would
consider dismissal of specific elements of the Third Amended Complaint affected by its ruling.
Shortly thereafter, Defendant filed a motion to dismiss the Third Amended Complaint. On February
17, 2011, the district court granted Defendant’s motion to dismiss and entered judgment in favor of
Defendant and the other named defendants. Plaintiffs timely appealed. This Court has jurisdiction
to review the final judgment of the district court under 28 U.S.C. § 1291.
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II. ANALYSIS
A. Standard of Review
We review the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
de novo, see Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005), and may “affirm the district
court’s dismissal of a plaintiff’s claims on any grounds, including grounds not relied upon by the
district court.” Hensley Mfg. v. ProPride Inc., 579 F.3d 603, 609 (6th Cir. 2009). In determining
whether a party has failed to state a claim, we construe the complaint in the light most favorable to
the non-moving party and accept all factual allegations as true. See Harbin-Bey, 420 F.3d at 575.
To survive a Rule 12(b)(6) motion to dismiss, a complaint “need contain only ‘enough facts to state
a claim to relief that is plausible on its face.’” Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
B. The Driver’s Privacy Protection Act of 1994
As this Court recently stated:
The federal DPPA was enacted in response to growing concerns over the ease
with which stalkers and other criminals could obtain personal information from state
departments of motor vehicles. Reno v. Condon, 528 U.S. 141, 143–44, 120 S. Ct.
666, 145 L. Ed. 2d 587 (2000). Congress was also concerned about the practice in
many states of selling personal information from motor vehicle records to businesses,
marketers, and others for, at times, significant revenue. Id. The DPPA, held to be
a proper exercise of the power to regulate interstate commerce, established a
regulatory scheme that both mandates and restricts the disclosure of personal
information from records maintained by state motor vehicle departments. Id. at 148,
120 S. Ct. 666.
At all times relevant to this case, the DPPA, as amended, imposed the
following general prohibitions against the disclosure of personal information
obtained from an individual's motor vehicle record:
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(a) In general.—A State department of motor vehicles, and any officer,
employee, or contractor thereof, shall not knowingly disclose or otherwise
make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. [§ ] 2725(3), about any
individual obtained by the department in connection with a motor vehicle
record, except as provided in subsection (b) of this section; or
(2) highly restricted personal information, as defined in 18 U.S.C. § 2725(4),
about any individual obtained by the department in connection with a motor
vehicle record, without the express consent of the person to whom such
information applies, except uses permitted in subsections (b)(1), (b)(4),
(b)(6), and (b)(9); Provided, That subsection (a)(2) shall not in any way affect
the use of organ donation information on an individual’s driver’s license or
affect the administration of organ donation initiatives in the States.
18 U.S.C. § 2721(a)(1)–(2) (emphasis added). “Personal information” is defined as
“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.” Id. at
§ 2725(3). “Highly restricted personal information” is defined as “an individual’s
photograph or image, social security number, medical or disability information.” Id.
at § 2725(4).
Section 2721(b) carves out both mandatory and permissive exceptions to the
general prohibitions in subsection (a). Id. at § 2721(b). First, states must disclose
personal information for use in carrying out the purposes of several federal statutes
not relevant here. Second, states may disclose personal information (subject to §
2721(a)(2)), for any of the permissible uses or purposes listed in § 2721(b)(1)–(14).
Eleven of these permissible uses—including for “use in the normal course of
business” under § 2721(b)(3)—authorize nonconsensual disclosure of personal
information. Id. at § 2721(b)(1)–(10) and (14). The other three permissible uses
require the express consent of the persons to whom the information pertains. Id. at
§ 2721(b)(11)–(13).
The DPPA also regulates the “resale or redisclosure” of personal information
in § 2721(c), which provides, in pertinent part, that: “An authorized recipient of
personal information (except a recipient under subsection (b)(11) or (12)) may resell
or redisclose the information only for a use permitted under subsection (b) (but not
for uses under subsection (b)(11) or (b)(12)).” Id. at § 2721(c) (emphasis added).
Subsection (c) also imposes a record-keeping obligation on “[a]ny authorized
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recipient (except a recipient under subsection (b)(11)) that resells or rediscloses
personal information covered by this chapter” to keep for five years “records
identifying each person or entity that receives information and the permitted purpose
for which the information will be used and must make such records available to the
motor vehicle department upon request.” Id.[*]
The DPPA makes it unlawful for “any person knowingly to obtain or disclose
personal information, from a motor vehicle record, for any use not permitted under
[§ ] 2721(b),” or “to make false representation to obtain any personal information
from an individual’s motor vehicle record.” 18 U.S.C. § 2722(a)–(b). A person who
knowingly violates the DPPA is subject to criminal fine, id. at § 2723(a), and may
be held civilly liable for actual damages (but not less than $2,500 in liquidated
damages), punitive damages, attorney fees, and appropriate equitable relief[.] [I]d.
at § 2724. A “person” is defined as an individual, organization or entity, “but does
not include a State or agency thereof[.]”[I]d. at § 2725(2). Instead, the Attorney
General may impose civil penalties if a state has a policy or practice of “substantial
noncompliance” with the DPPA[.] [I]d. at § 2723(b) (civil penalty of not more than
$5,000 per day).
____________________
[*] Disclosure under subsections (b)(11) (for any use) and (b)(12) (for bulk distributions for surveys,
marketing or solicitation) is permissible “if the State has obtained the express consent of the person
to whom such personal information pertains.” Id. at § 2721(b)(11)–(12) (as amended eff. June 1,
2000).
Roth v. Guzman, 650 F.3d 603, 606-07 (6th Cir. 2011) (footnotes omitted).
1. Bulk Obtainment and Use
The basis for Plaintiffs’ DPPA claims (and their apparent basis for alleging that Defendant
misrepresented that it had a permissible purpose for obtaining the drivers’ personal information) is
that “Defendant[] had no purpose or intended use for the private information of each and every
personal record included in the database.” R. 158, Third Am. Compl., ¶29 (emphasis added). Thus,
the issue before this Court is whether, assuming Defendant asserted a permissible purpose to the
K.T.C. for obtainment of personal information in motor vehicle records, such purpose is rendered
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void because Defendant obtained the drivers’ records for all Kentucky drivers, without showing “a
permissible purpose for each and every record [in the K.T.C. database] and . . . the personal
information of each and every person therein.” In other words, even if Defendant had asserted a
permissible purpose for obtaining such records under § 2721(b), does the bulk obtainment of such
records for the purpose of “stockpiling” such records violate the DPPA?
Shortly after the parties filed their appellate briefs, this Court issued the Roth opinion.
Therein, in the context of deciding a qualified immunity issue, this Court concluded that it was not
clearly established that “‘stockpiling’ or bulk disclosures of personal information for a permissible
purpose under § 2721(b)(3) would violate the DPPA.” Roth, 650 F.3d at 617. The Roth court
extensively cited and relied upon the Fifth Circuit’s opinion in Taylor, supra. Most notably, this
Court stated:
[T]he starting point is the ordinary meaning of the statute. Mills Music, Inc. v.
Snyder, 469 U.S. 153, 164, 105 S. Ct. 638, 83 L. Ed. 2d 556 (1985) (“In construing a
federal statute it is appropriate to assume that the ordinary meaning of the language
that Congress employed ‘accurately expresses the legislative purpose.’”) (citation
omitted). If the language of the statute is clear, the plain meaning of the text must be
enforced. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026,
103 L. Ed. 2d 290 (1989). “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997). When a
plain reading “leads to ambiguous or unreasonable results, a court may look to
legislative history to interpret a statute.” Limited, Inc. v. Comm’r, 286 F.3d 324, 332
(6th Cir. 2002).
[Section] 2721(b)(3) provides that state officials may disclose personal
information “[f]or use in the normal course of business ... to verify the accuracy of
personal information submitted by the individual to the business,” and to correct
inaccurate personal information for the purposes of “preventing fraud by, pursuing
legal remedies against, or recovering on a debt or security interest against the
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individual.” Plaintiffs interpret the references to “the individual” in § 2721(b)(3) as
unambiguously limiting disclosure to personal information pertaining to one
individual at a time. Defendants counter that “individual” in this subsection does not
refer to how many requests may be made at one time, but rather to the basis for
disclosures permitted under this subsection. The Fifth Circuit, the only circuit to
decide this issue, rejected the same arguments in Taylor v. Acxiom Corp., 612 F.3d
325, 335 (5th Cir.2010), cert. denied, ___ U.S. ___, 131 S. Ct. 908, 178 L. Ed. 2d 804
(2011).
Texas, like at least eleven other states, allows persons or entities to purchase
magnetic tapes of the database of driver’s license records upon certification of a
lawful purpose under the DPPA. Id. at 332. The defendants in Taylor were third
parties who did not use all of the records immediately, but maintained databases to
either use in the future (non-resellers) or to resell to others for lawful purposes
(resellers). The plaintiffs in Taylor argued that maintaining records not actually used
was itself an impermissible purpose; in other words, that “‘buying the records in bulk
with an expectation and purpose of valid potential use is not a permissible use under
the DPPA.’” Id. at 334. Examining § 2721(b)(3) in the context of all fourteen
permissible uses under § 2721(b), the court emphasized that only one subsection
limits permissible uses to individual motor vehicle records, while only one other
subsection limits permissible uses to bulk distributions. Id. at 335; compare §
2721(b)(11) (“[f]or any other use in response to requests for individual motor vehicle
records if the State has obtained the express consent of the person to whom such
personal information pertains”), with § 2721(b)(12) (“[f]or bulk distribution for
surveys, marketing or solicitations if the State has obtained the express consent of the
person to whom such personal information pertains”). For the rest of the permissible
uses, the court found there was more than one reasonable interpretation: “individual
release, bulk release, or both.” Id. at 335. The court explained:
It does not make sense that Congress would expressly limit
states to individual distribution with one permissible use if Congress
intended to limit all of the permissible uses to individual distribution.
If Congress intended only individual distribution, one would expect
either Congress to expressly limit all uses or, at least, to remain silent
on the matter. Likewise, if Congress intended only bulk distribution,
it makes no sense to expressly limit one of the fourteen uses to bulk
distribution and not the others. The text of the statute strongly
indicates that it allows both individual and bulk distribution.
Id. at 336. We agree.
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*****
To resolve the ambiguity, both parties point to aspects of the legislative
history to support their positions but nothing speaks directly to the issue of “bulk”
disclosures under § 2721(b)(3). More generally, Congress expressed an intention “to
strike ‘a critical balance between legitimate governmental and business needs for this
information, and the fundamental right of our people to privacy and safety.’” Russell
v. ChoicePoint Servs., Inc., 300 F. Supp. 2d 450, 456 (E.D.La.2004) (quoting 139
Cong. Rec. S15, 763 (1993)). Although plaintiffs rely on statements from the
legislative history reflecting an intention to give individuals control over the release
of their personal information, those statements are again directed at the bulk sale of
personal information for direct marketing purposes.
A statement by the sponsor of the DPPA in the House expressed concern first
with the need to address the ease with which criminals and strangers could obtain
driver's license information and second with the desire to curb the sale of DMV
databases to direct marketers for commercial purposes by requiring consent. Taylor,
612 F.3d at 336–37 (quoting statement of Rep. Moran Feb. 4, 1994, 1994 WL
212698 (F.D.C.H.)). In that same statement, however, the sponsor also expressed the
intention that common uses being made of the information at the time—including by
businesses verifying personal information—should continue unfettered. Id. at 336.
Notably, the amendments to the DPPA, which restricted further the bulk
distribution provision to require express as opposed to implied consent, did not adopt
a consent requirement for disclosure under § 2721(b)(3), or clarify that requests for
disclosure under § 2721(b)(3) should be for one person's records at a time. The Fifth
Circuit was also persuaded by a Department of Justice (DOJ) advisory opinion issued
in October 1998, concluding that the DPPA allowed the State of Massachusetts to
release personal information to a commercial distributor who would disseminate the
information to any other authorized recipients or entities that use the information
solely for authorized purposes. Taylor, 612 F.3d at 339. We agree that the DOJ's
advisory opinion is inconsistent with the notion that bulk distribution is prohibited
by the DPPA. Id.
Finally, the court in Taylor concluded that the plaintiffs’ reading of §
2721(b)(3) would lead to “essentially absurd results,” explaining:
At a checkout line at a grocery store or similar establishment, when
a customer wishes to pay by (or cash) a check, and presents a driver’s
license as identification, it is obviously wholly impractical to require
the merchant for each such customer to submit a separate individual
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request to the state motor vehicle department to verify the accuracy
of the personal information submitted by the customer, under section
2721(b)(3). Any such process would obviously take way too long to
be of any use to either the customer or the merchant, and would
moreover flood the state department with more requests than it could
possibly handle. So, the merchant buys the state department’s entire
data base and from it extracts on that occasion that particular
customer’s information, and later performs the same task as to the
next such customer in the line. Plaintiffs would have us hold that the
merchant violates the DPPA by acquiring the data base even though
every single actual use made of it is an authorized use under section
2721(b), so long as there is at least one name in the data base as to
which no actual use is made.
Id. at 337. The court then analogized the situation to the purchase of a set of legal
reporters, which a lawyer purchases for the purpose of legal research even though the
attorney would never read every opinion in each volume. Id.
As interpreted by the court in Taylor, plaintiffs could not establish a violation
of the DPPA merely because the defendants sold personal information from motor
vehicle records in bulk where the disclosure was for use, or potential use, in “the
normal course of business” under § 2721(b)(3). The purchase in bulk for use as
needed for a permitted purpose under § 2721(b)(3), described by some courts as
“stockpiling,” has been found not to violate the DPPA by several district courts. See,
e.g., Wiles v. ASCOM Transp. Sys., Inc. (Wiles II), No. 3:10–cv–28–H, 2011 WL
672652 (W.D.Ky. Feb. 17, 2011) (unpublished); Cook v. ACS State and Local
Solutions, Inc., 756 F. Supp. 2d 1104 (W.D. Mo.2010).[3]
Roth, 650 F.3d at 614-17.
For the same reasons, several other Circuits have reached the same conclusion as the Taylor
court when considering whether “stockpiling” or bulk obtainment/disclosure of personal information
violates the DPPA. See Cook v. ACS State & Local Solutions, Inc., 663 F. 989, 994, 996 (8th Cir.
3
The Wiles district court case and the Cook district court case referenced by the Roth court
are the underlying cases in the appeal currently before this Court and the Cook decision discussed
herein (beginning at the next paragraph), respectively.
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2011) (“The proper focus for courts is not the manner in which the information was acquired, but
the use to which it is eventually put” and “Plaintiffs cannot establish a violation of the DPPA if all
the defendants have done is obtain driver information in bulk for potential use under a permissible
purpose”); Graczyk v. West Publ’g Co., 660 F.3d 275, 279 (7th Cir. 2011) (The DPPA “is concerned
with the ultimate use or uses to which personal information contained in motor vehicle records is
put”); Howard v. Criminal Info. Servs., Inc., 654 F.3d 887, 891, 892 (9th Cir. 2011) (The DPPA
“was written in a way that logically put the focus on the purpose for which the information would
eventually be used–on the ‘end’ sought by the purchaser–not on the reasons for buying it in bulk”
and “the portion of the statute that expresses the permissible purposes explicitly does so in terms of
the ‘use’ of the information. That is what should be considered in determining whether the
acquisition of the information is permitted under the statute.”).
This Court agrees with the reasoning of Roth and the referenced DPPA cases from other
Circuits. Plaintiffs have not cited any case law, legislative history or other “any authority or
persuasive argument for concluding that [the DPPA] clearly and unambiguously limits disclosure
of personal information to one individual at a time.” Roth, 650 F.3d at 615. In contrast, as noted
in several of the cases discussed above, the legislative history clearly establishes that Congress did
not intend to alter the traditional method of bulk disclosures by states, subject to the express
limitations set forth in the DPPA.4
4
In addition to the statements of Congressman Moran set forth in the Taylor and Roth
decisions, supra, several other congressman made similar proclamations regarding the purpose and
scope of the DPPA. See, e.g., 139 Cong. Rec. 29468 (1993) (statement of Senator Boxer, describing
the bill in the Senate as “strik[ing] a critical balance between the legitimate governmental and
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Plaintiffs also contend that “stockpiling” of the personal information is prohibited because
the personal information must be used immediately after it is obtained. Plaintiffs, however, fail to
identify any language in the statute that requires immediate use. They cannot do so because there
is no such language in the DPPA. See Cook, 663 F.3d at 995 (citing Howard, 654 F.3d at 892
(“There is also no problem with Defendants obtaining the personal information for potential future
use, even if they may never use it. The DPPA does not contain a temporal requirement for when the
information obtained must be used for the permitted purpose.”)). This Court therefore declines to
read such a requirement into the statute.
For the foregoing reasons, we hold that bulk obtainment of personal information for a
permissible purpose does not violate the DPPA. We also conclude that, as Defendant obtained the
personal information from the K.T.C. under one or more of the permissible purposes set forth in the
DPPA, Plaintiffs cannot establish a violation of the DPPA if the only alleged wrongdoing Defendant
has committed was obtaining the personal information in bulk for use or potential use.
2. Disclosure (Resale of Personal Information)
The district court dismissed Plaintiffs’ DPPA disclosure claim, finding that Plaintiffs’
“allegations of unauthorized disclosure are deficient because they do not state either a specific
unlawful third party to whom [Defendant] disclosed the data or a specific unlawful disclosure by a
business needs for this information, and the fundamental right of our people privacy and safety”);
140 Cong. Rec. 7929 (1994) (statement of Representative Goss that “The flow of information would
only be denied to a narrow group of people that lack legitimate business. The Amendment defines
‘legitimate business’ broadly, including all the duties of Federal, State, and local law enforcement
agencies and courts, verification and/or correction of personal information, private investigations,
and anything related to the operation of a motor vehicle.”).
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third party.” Again, this is an issue other Circuits have addressed. For example, the Eighth Circuit
recently stated:
Some of the Defendants in this case obtained personal information in bulk from the
Missouri DOR not for their own permissible use, but to sell to third parties who have
permissible uses of their own. There is no dispute that 18 U.S.C. § 2721(c) explicitly
authorizes the resale and redistribution of personal information, however Plaintiffs
contend that this section does not provide a stand-alone justification for businesses
to obtain records from the state. Plaintiffs argue that the DPPA requires resellers to
have their own permissible use for personal information before selling it to third
parties. Plaintiffs interpret the phrase “authorized recipient” under section 2721(c)
as an individual or entity who has an immediate permissible use for the information
under section 2721(b).
The statute does not define “authorized recipient,” and therefore does not provide
direct guidance on this issue. However, Plaintiffs identify no support in either the
language of the statute or the legislative history that suggests an authorized recipient
must have an authorized use. As other courts have pointed out, section 2721(c)
restricts only “authorized recipients,” not “authorized users” or “permissible users”
(which would more closely mirror section 2721(b)). Taylor, 612 F.3d at 338; Russell
v. ChoicePoint Servs. Inc., 300 F. Supp. 2d 450, 455–61 (E.D. La. 2004). So long as
personal information is ultimately used only for permitted purposes, it is not clear
why Congress would have intended to regulate who could obtain it. The statute as
a whole is concerned only with the use of the information, not the entity requesting
it. See Russell, 300 F. Supp. 2d at 457 (“The plain language of the DPPA is written
in terms of permissible ‘uses' rather than permissible ‘users.’”); Graczyk, 660 F.3d
at 279 (pointing out that the statute permits an agent to obtain information for use by
a business without requiring the agent to have a separate use).
The documentation requirements in section 2721(c) seem to further indicate that
Congress was primarily concerned with the end use of personal information.
Congress provided additional safeguards in section 2721(c) that require resellers to
document each sale to a third party. Section 2721(c) requires that “[a]ny authorized
recipient ... that resells or rediscloses personal information covered by this chapter
must keep for a period of 5 years records identifying each person or entity that
receives information and the permitted purpose for which the information will be
used and must make such records available to the motor vehicle department upon
request.” 18 U.S.C. § 2721(c). These safeguards support our view that Congress was
focused more on the end use of the information than the manner in which it was
obtained.
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The Fifth and the Seventh Circuits have found persuasive support for this view in an
unpublished Department of Justice opinion letter. The letter responded to an inquiry
from the Commonwealth of Massachusetts about whether it was permitted under the
DPPA to provide driver information to a commercial distributor who would resell the
information only to third parties that themselves had permissible uses. See Letter
from Robert C. McFetridge, Special Counsel to the Assistant Attorney Gen., to Peter
Sacks, Office of the Attorney Gen. For the Commonwealth of Mass. (Oct. 9, 1998)
(on file with the Fifth and Seventh Circuits). In response, the DOJ reasoned that the
DPPA “regulated only the ultimate use of personal information without specifying
or restricting who may obtain the information in order to accomplish that authorized
purpose.” Id. The DOJ posited that Massachusetts could provide information to
resellers so long as it could reasonably conclude that the information would be used
only for authorized purposes. Id. We agree with our sister circuits that this is the
most reasonable reading of the statute. See Graczyk, 660 F.3d at 280–81; Taylor, 612
F.3d at 339.
Section 2721(c) explicitly permits the resale of drivers’ information, and it does not
require that resellers must first use the information themselves. We hold that
Plaintiffs cannot establish a DPPA violation by alleging that Defendants obtained
personal information with the sole purpose of selling it to third parties who have
permissible section 2721(b) uses for the information.
Cook, 663 F.3d at 996-97.
We find persuasive the analysis and conclusions of the Eighth Circuit, as well as those of the
Fifth and Seventh and the DOJ, and we hold that obtaining personal information solely for the
purpose of reselling such information is permitted under the DPPA, so long as the personal
information will ultimately be used only for purposes permitted under Section 2721(b).
In this case, Plaintiffs have not alleged that the ultimate “use” of the information is for an
impermissible purpose. Rather, Plaintiffs’ allegations pertaining to the resale/disclosure of the
personal information are based on Defendant allegedly obtaining the personal information for the
sole purpose of reselling it to third parties, without use of such information by Defendant. As stated
by the Eighth Circuit, however, “Section 2721(c) explicitly permits the resale of drivers’
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information, and it does not require that resellers must first use the information themselves.” Id. at
997. Therefore, we find that Plaintiffs have failed to state a claim upon which relief can be granted
because Plaintiffs cannot establish a violation of the DPPA even if Defendant obtained Plaintiffs’
personal information with the sole purpose of selling it to third parties who have a permissible
Section 2721(b) use for such information.
C. Common Law Right to Privacy
Plaintiffs’ common law invasion of privacy claim is based on two theories: (a) unreasonable
intrusion upon the seclusion of another, and (b) unreasonable publicity to another’s private life.
An intrusion upon seclusion claim requires a plaintiff to show: (1) an intentional intrusion
by the defendant, (2) into a matter that the plaintiff has a right to keep private, and (3) that the
intrusion would be highly offensive to a reasonable person. See Restatement (Second) of Torts §
652B; Johns v. Firstar Bank, N.A., No. 2004-CA-001558-MR, 2006 Ky. App. LEXIS 85, at *7 (Ky.
Ct. App. Mar. 24, 2006); Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808, 822 (W.D. Ky.
2003). “What constitutes a private matter is dependent upon whether the plaintiff has a reasonable
expectation of privacy in the subject information.” Webb v. Bob Smith Chevrolet, Inc., 2005 WL
2065237, at *6 (W.D. Ky. Aug. 24, 2005) (citing McCall v. Courier-Journal & Louisville Times Co.,
623 S.W.2d 882, 887 (Ky. 1981), cert. denied, 456 U.S. 975 (1982)).
Plaintiffs contend that the district court erred in concluding as a matter of law that
Defendant’s alleged intrusion into Plaintiffs’ privacy was not “highly offensive”– a determination
that is to be made by the trier of fact. This Court need not consider that argument as it finds that
Plaintiffs cannot establish a prima facie intrusion upon seclusion claim, specifically, the second
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element. The DPPA expressly allows the publication of Plaintiffs’ personal information to third
parties under the parameters set forth in Section 2721. As this federal statute authorizes the
disclosure of the personal information, a person whose information is disclosed pursuant to that
statute cannot have a reasonable expectation that such personal information would be kept private.
Accordingly, this Court concludes that Plaintiffs had no reasonable expectation of privacy in the
personal information and, as such, that Plaintiffs’ intrusion upon seclusion claim fails as a matter of
law.
Plaintiffs also challenge the district court’s dismissal of their “publicity given to a private
life” claim, referenced in Restatement (Second) of Torts § 652D as “unreasonable publication.” A
cause of action for unreasonable publication requires that a plaintiff prove that a defendant
publicized material that: (a) would be highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public. Id. Publicizing material “means that the matter is made public, by
communicating to the public at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.” Id. cmt. (a). See also Ghassomians v.
Ashland Indep. Sch. Distr., 55 F. Supp. 2d 675, 693 (E.D. Ky. 1998) (citation omitted) (a claim for
unreasonable publicity requires disclosure of private information “in a way substantially certain to
become general knowledge either through dissemination to the public at large or a multitude of
persons.”). In the instant case, Plaintiffs have not alleged that Defendant disclosed, or caused to be
disclosed, Plaintiffs’ personal information to the public at large or a multitude of persons such that
the information could be regarded as substantially certain to become a matter of public knowledge.
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No. 11-5342
Wiles v. Ascom
Accordingly, this Court finds that Plaintiffs have failed to state an actionable claim for unreasonable
publication.
Therefore, we conclude that Plaintiffs failed to state a claim for common law invasion of
privacy claim upon which relief can be granted.
D. 42 U.S.C. § 1983 Claim
The district court found that Plaintiffs failed to state a cognizable § 1983 claim because
Defendants are not state actors, as required to impose § 1983 liability, and did not meet the
nexus/symbiotic-relationship test by which private action may be attributed to the state. See Wiles
v. ASCOM Transp. Sys., Inc., No. 3:10-CV-28-H, 2011 WL 672652, at *3 (W.D. Ky. Feb. 17, 2011).
We think the better grounds on which to dismiss Plaintiffs’ § 1983 claims is their failure to
establish any violation of a federal right. Section 1983 “is not itself a source of substantive rights,
but a method for vindicating federal rights elsewhere conferred . . . .” Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979); see also Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009), cert.
denied. Plaintiffs allege they have been deprived of their privacy rights as secured by the DPPA, the
Privacy Act (codified at 5 U.S.C. § 552a),5 and the federal constitution. We have already considered
Plaintiffs’ DPPA claims and found no DPPA violation. Plaintiffs fail to state a Privacy Act claim
because we have previously held that the Privacy Act applies only to federal agencies. Schmitt v.
City of Detroit, 395 F.3d 327, 331 (6th Cir. 2005). And Plaintiffs’ constitutional privacy claims are
5
Plaintiffs’ complaint cites to 5 U.S.C. § 552, the Freedom of Information Act, which
requires federal agencies to make certain information available to the public. We assume Plaintiffs
meant 5 U.S.C. § 552a, the Privacy Act, and construe their complaint accordingly.
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also foreclosed by this Court’s prior case law. As we observed in Lambert v. Hartman, 517 F.3d
433, 440 (6th Cir. 2008), “this court has recognized an informational-privacy interest of
constitutional dimension in only two instances: (1) where the release of personal information could
lead to bodily harm (Kallstrom [v. City of Columbus, 136 F.3d 1055, 1061 (6th Cir. 1998)]), and (2)
where the information released was of a sexual, personal, and humiliating nature (Bloch [v. Ribar,
156 F.3d 673, 683 (6th Cir. 1998)]).” Plaintiffs have not alleged any facts that would support an
inference that the information disclosures here fall into either category. As Plaintiffs have not
established the deprivation of any federal constitutional or statutory right, their § 1983 claims must
fail.
III. CONCLUSION
For the reasons above, we conclude that the district court properly dismissed Plaintiffs’ Third
Amended Complaint for failure to state a claim, and we affirm the order of the district court.
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