Maracich v. Spears
By Natalie Kim – Edited by Mary Grinman
Maracich v. Spears, No. 12-25, 570 U.S. ___ (June 17, 2013)
On Monday, the Supreme Court held that the “litigation exception” of the Driver Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721–2725, did not apply to attorney solicitation of clients, vacating a decision of the 4th Circuit. On remand, the lower court must determine whether Spears’ communications were sent with “the predominant purpose of solicitation.” Maracich, slip op. at 29.
Overlawyered summarizes the holding, speculating which points may be more relevant on remand. Cato expresses surprise at how every Justice switched sides since another significant privacy case two weeks ago, Maryland v. King, No. 12-207, 569 U.S. ___ (June 3, 2013) (holding that post-arrest cheek swabs were legitimate police booking procedures under the Fourth Amendment). NYTimes mentions that this could expose routine attorney activity to “huge” civil and criminal liability.
Spears, et al. (“Spears”), attorneys in South Carolina, had obtained drivers’ personal information from the DMV to solicit clients to join a lawsuit against certain car dealerships. Id. at 2. Maracich was among those contacted, and sued Spears for violation of the DPPA. Id. Spears claimed their activity was sanctioned under the DPPA’s § 2721(b)(4) exception to the general ban on disclosure of drivers’ personal information, for purposes “in connection with any civil, criminal, administrative, or arbitral proceeding” including “investigation in anticipation of litigation.” Id. at 3. Both the United States District Court for the District of South Carolina and United States Court of Appeals for the Fourth Circuit held for Spears, ruling that their activity fell under the (b)(4) exception. Id. at 6.
Writing for the 5-4 majority, Justice Kennedy incorporated many suggestions from the Electronic Privacy Information Center’s (“EPIC”) amicus brief, which argued for a broad definition of “personal information” and a narrow definition of the 14 exceptions under the DPPA. Kennedy stated that a broad interpretation of “in connection with” as used in (b)(4) should be avoided because such a broad phrase (1) must have a limiting principle; (2) is inconsistent with Congress’s intent; (3) is an undue invasion of the privacy of drivers, who are required to submit personal information to the DMV; and (4) erodes other exceptions using the same language such as (b)(6) (relating to underwriting) and (b)(10) (relating to operation of private toll roads). Id. at 9–14. As one of the four exceptions that allow for disclosure of not only “personal information” but also of “highly restricted personal information” – including sensitive information such as Social Security Numbers, photographs, and medical information – prudence demanded a narrow reading of the exception. Accordingly, the court limited “investigation in anticipation of litigation” to background research in order to determine the necessity of a complaint. Id. at 26.
Further, Kennedy rejected Spears’ claim that their activity was meaningful solicitation for legitimate purposes and could be distinguished from “mere trolling.” Id. at 20. The majority noted that solicitation is already addressed explicitly in the (b)(12) exception and operates under a tighter disclosure standard of explicit consent. Additionally, solicitation could be distinguished from other “aspects of the legal profession” due to its pecuniary motive and potential conflict of interest, making it more like a commercial transaction. Id. at 14. On remand, the Court instructed the lower court to determine whether solicitation was the “predominant purpose” for sending the letters, warning that downstream uses of data may not be legitimate, even if the initial collection is for legitimate purposes. Id. at 29.
Justice Ginsburg penned the dissent, which Justices Sotomayor, Kagan and Scalia joined. The dissent claimed that Spears’ actions fell under a “plain language” reading of (b)(4) as any investigation tied to a specific litigation. Id. at 38. According to the dissent, the majority opinion would expose attorneys to civil and criminal liability for engaging in acts standard and necessary to the legal profession. Id. at 50.
Maracich holds important repercussions for privacy. Drivers constitute a vast majority of the adult population, and a too-wide exception to the general ban on disclosure of sensitive driver information could result in data breaches and unwelcome targeted advertising. This is especially important, as the DMV database contains sensitive information about a large swathe of the population. The DMV mandates disclosure of this sensitive information, giving drivers no meaningful chance to consent and making post-collection privacy practices more significant. While civil liberties groups celebrate Maracich as a win for privacy, Congress may still widen the exceptions if it decides that the Court’s interpretation is too narrow.