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Justices Consider Driver-Record Privacy


WASHINGTON — Actress Rebecca Schaeffer was shot and killed outside her apartment in Los Angeles in 1989 by a deranged fan who had stalked her.

Last year, Dr. Barnett Slepian, who performed abortions, was killed by a shot fired into the kitchen of his home near Buffalo, N.Y.

The two homicides had one thing in common: The killers are believed to have tracked their victims through state motor vehicle records. Armed only with a license plate number or a name, in most states a stalker, thief or murderer can obtain the owner's home address.

California is an exception. The state tightened its privacy protections after Schaeffer's death, but most states have not. Some states, including New York, Florida and Wisconsin, earn millions of dollars per year by selling computer motor vehicle records to mass marketers.

Citing examples of abusive ex-spouses and anti-abortion fanatics, the Los Angeles-based Feminist Majority Foundation calls the privacy of driving records "truly a life-and-death issue."

In the Supreme Court, however, the issue was debated Wednesday as a matter of federalism.

Congress passed the Driver's Privacy Protection Act of 1994 and barred states from disclosing "personal information" from motor vehicle records unless the motorist waives the "right to privacy."

However, the law was challenged on states' rights grounds by South Carolina's attorney general, and it was struck down as unconstitutional last year by a U.S. appeals court in Richmond, Va.

A Clinton administration lawyer vigorously defended the law Wednesday, but, as has become the norm, the court's conservative justices took up the cause of the states.

Justice Anthony M. Kennedy, the Sacramento native who was appointed by President Reagan, said that states can enact privacy protections on their own.

"You have to assume these states don't have it [a privacy shield] because their voters don't want it. . . . Here, the federal interest is unnecessary and intrusive," Kennedy said. "The assumption has been for 150 years that Congress cannot regulate the states."

Disagreeing, U.S. Solicitor Gen. Seth Waxman said that Congress in the 20th century has often regulated the states in areas ranging from the environment to minimum wages. A "uniform national law" on motor vehicle records makes sense, he argued, because Americans move between states not knowing of their privacy protections.

But Justice Antonin Scalia said a state should be able to control its own data.

South Carolina Atty. Gen. Charles Condon heartily agreed. "We're simply saying, 'Let South Carolina be run by South Carolinians.' "

All was not smooth sailing for the state's lawyer, however. Justices Stephen G. Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg have steadily supported federal laws over states' rights claims, and they sharply questioned Condon.

What about the federal law barring states from taxing the Internet, Breyer asked. Is that unconstitutional? "Do you want to set aside all federal regulation?" he prodded.

Condon repeated the theme that the federal privacy act is "complex and burdensome" for employees in state motor vehicle departments.

Regardless of how the court rules in the case (Reno vs. Condon, 98-1464), the protection is likely to survive, at least for a time.

Last month, the House and Senate passed a funding bill that says states must continue to enforce privacy protections even if the Supreme Court strikes down the 1994 law.

The case should not affect Californians, according to the Department of Motor Vehicles in Sacramento. "With limited exceptions, a home address is confidential in California," said DMV spokesman Evan Nossoff.

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