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A federal privacy law for drivers doesn’t bar West Publishing from reselling plaintiffs’ personal information, the U.S. Court of Appeals for the 7th Circuit has ruled. The Sept. 28 unanimous panel ruling in Graczyk v. West Publishing Co. affirmed a September 2009 dismissal by Judge Robert Gettleman of the Northern District of Illinois — but only on one of two grounds. The 7th Circuit affirmed Gettleman’s ruling that the Driver’s Privacy Protection Act does not bar West Publishing from reselling the plaintiffs’ personal information to parties who will use it for purposes allowed by the law. Some of the 14 permitted uses are government-related, such as for law enforcement or motor vehicle safety and theft. Allowable private uses include certain research activities, licensed private investigation agency requests and employer verification of prospective employees’ information. But the court disagreed with Gettleman that the plaintiffs lacked standing and found that the law does create a federal private right of action for individuals who claim their personal information was improperly released. Lisa Graczyk and two other named plaintiffs filed a purported class action on behalf of licensed drivers in 28 states and the District of Columbia against West Publishing in August 2009. They claimed that West violated the Driver’s Privacy Protection Act, which was enacted in 1993. The law limits how state motor vehicle department can share drivers’ personal information, such as names, addresses and Social Security numbers. They also claimed unjust enrichment and asked the court to issue an injunction against the company. The plaintiffs claimed that West Publishing’s bulk assembling and distribution of their personal information violates the law and that “resale” to the public is not on the law’s list of permitted uses for the information. Judge Ann Claire Williams authored the ruling, joined by judges Joel Flaum and Richard Posner. On the standing issue, Williams wrote that the law “protects individuals from certain uses or disclosures of their personal information and creates a federal right of action for the same.” She observed that the plaintiffs are claiming that the law prohibits West Publishing’s actions, and a court ruling for the plaintiffs would bar West Publishing from gathering and reselling the plaintiffs’ information. “The plaintiffs have therefore alleged an injury in fact, caused by West Publishing, that would be redressed by a decision in their favor, and so they have standing to bring this case,” Williams wrote. On the issue of West Publishing’s use of the information, Williams wrote that considering the law as a whole, “it is concerned with the ultimate use or uses to which personal information contained in motor vehicle records is put.” If West Publishing sells the drivers’ records only to parties using the information for one of the expressly permitted purposes, “why would Congress care whether each record is obtained individually by someone who intends to put the record to immediate use, or in bulk by someone who intends to sell and transmit the records to others with valid uses?,” Williams asked. Williams also shot down the plaintiffs’ argument that Congress intended the states to be “gatekeepers” of the drivers’ personal information. The law does not bar record storage if the storing party has a valid use, Williams noted. She also found that one of Congress’ purposes in crafting the law was to “allow legitimate users to access the records.” “If these business had to send a request to the DMV every single time they needed to verify an individual’s information, the process would become unwieldy for both the companies and the state,” Williams wrote. “We do not interpret statutes to lead to absurdities or to defeat Congressional intent.” Williams noted that the 5th Circuit addressed the same question and concluded in its 2010 ruling in Taylor v. Tex. Farm Bureau Mut. Ins. Co. that the law does not bar companies from reselling the information to other parties with permissible uses. Williams also addressed two other circuit rulings on related issues. The 6th Circuit ruled year, in Roth v. Guzman, that the law allows motor vehicle departments “to release records to those who vouch for their lawful uses.”Also this year, the 9th Circuit held in Howard v. Criminal Inf. Servs. Inc. that it is “lawful for private individuals to store records obtained” for one of the permitted purposes. “In line with these cases, we hold the [law] does not prohibit West Publishing from reselling records it obtains from state [motor vehicle departments] to persons with permissible uses,” Williams wrote. Blake Anthony Strautins of Chicago’s Barnow & Associates, who argued the plaintiffs’ case, did not respond to requests for comment. Diane Green-Kelly, a Chicago partner at Reed Smith, who represented West, said she and her client “are really gratified to see that the 7th Circuit has joined the 5th Circuit and every other court of appeals that has heard similar litigation in its finding that West acts lawfully in its sale to government, law enforcement and qualified commercial subscribers who have permitted uses for the information.” “Congress fully understands the important role that drivers’ license data serves in law enforcement and homeland security,” Green-Kelly said. “Reselling this type of information for permitted uses is explicitly permitted by the [statute].” Sheri Qualters can be contacted at [email protected].

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