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Two class action lawsuits filed in U.S. District Court in West Palm Beach, Fla., allege that two of the nation’s largest information brokers have invaded the privacy of millions of Florida motorists by obtaining sensitive personal data from the state and reselling it. The suits also accuse the state of Florida of failing to protect its residents from criminal invasions of privacy. They seek billions of dollars in damages. According to the complaints, filed late last month, ChoicePoint Inc., which has its data mining operations headquartered in Boca Raton, and Reed Elsevier, the parent of LexisNexis, have violated the federal Driver’s Privacy Protection Act. They have done so, according to the complaints, by obtaining for resale personal information from Florida state records without the “express consent” of licensed drivers and registered car owners. The lawsuits are seeking $2,500 in damages per violation, per class member, in addition to unspecified punitive damages. There are more than 13 million licensed drivers in Florida, with more than 15 million registered vehicles. The two cases are assigned to U.S. District Judge Daniel T.K. Hurley. He will decide whether to certify the suits to proceed as class actions. Both defendant companies say they are protective of the personal privacy of the individuals whose personal information they buy and sell. “We believe the law is very clear in this matter and that we have complied with both the spirit and the letter of the law,” said ChoicePoint spokesman Chuck Jones. “We are prepared to vigorously defend ourselves.” While Florida’s Department of Highway Safety and Motor Vehicles, which maintains and sells the driver records, is not named as a defendant, the two suits allege that the state has failed to protect Florida citizens from criminals by not shielding “personal information” such as the names, addresses and birth dates of motorists as required by the federal Driver Privacy Protection Act. “Current Florida law, in direct violation of the DPPA, purports to authorize the sale of personal information from motor vehicle records for the purposes of resale to businesses ‘whose primary business interest is to resell or redisclose the personal information,’ ” the lawsuits say. The federal law does not allow individuals to sue states for violations. Enforcement is statutorily limited to action by the U.S. attorney general, who may impose a $5,000 per day penalty against any state agency that is not in “substantial compliance,” the lawsuits say. In April, citing concern for the growing problem of identity theft, the American Civil Liberties Union sent a letter to Attorney General John Ashcroft asking him to compel Florida officials to obey the law that keeps driver’s license records from getting into the wrong hands. Ashcroft has yet to respond, said ACLU Florida legal director Randall Marshall. “The attorney general has done nothing, the governor has done nothing and the DMV has done nothing to stop this blatantly illegal practice,” said West Palm Beach lawyer James K. Green, who with lawyer David J. Sales filed the twin suits on May 30. “We are in effect acting as private attorneys general. We are using these lawsuits as the enforcement tools that are clearly allowed by the statute.” The sole plaintiff and class representative in both suits is Rabbi Joel Levine of Temple Judea in West Palm Beach. Green, a former president and legal director of the ACLU in Florida, is a solo practitioner. Sales is a partner at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach. Congress passed the privacy law in 1993 in response to several notorious crimes — including the 1989 murder of actress Rebecca Schaeffer — in which perpetrators used information contained in publicly available motor vehicle records to identify, locate and stalk their victims. Despite the law, the buying and selling of public information is big business in Florida. During fiscal year 2001-2002, the state of Florida collected about $27 million from the sale of driving and motor vehicle registration records stored in its massive data banks, according to an official of the Florida Department of Highway Safety and Motor Vehicles. Fees charged by the department are set by statute. A three-year history for a single driver, for example, costs $2.10. A list of motor vehicle owners costs a penny a vehicle. The department sells information to a number of corporations. Two of the largest are ChoicePoint, based in Alpharetta, Ga., and Reed Elsevier, the U.S. holding company for Great Britain’s Reed Elsevier PLC and the Dutch Reed Elsevier NV. ChoicePoint, a publicly traded company with revenues last year of $753 million, describes itself as “the leading provider of identification and credential verification” information to business, government and individuals. Co-defendant ChoicePoint Public Records Inc. in Boca Raton has 300 employees and annual revenues of $50 million. Reed Elsevier’s LexisNexis Group is a global provider of information to government, legal, and academic markets. According to the lawsuit, LexisNexis obtains for resale personal data about millions of Florida drivers and car owners “on a weekly basis.” Purchasers in those markets can include insurance firms, auto manufacturers and car rental companies. LexisNexis spokeswoman Judith Schultz said the company is in the “early stages of investigating the allegations” and declined to comment on the lawsuits. “The protection of an individual’s personal privacy is something Lexis-Nexis takes very seriously,” Schultz said in a statement. “Lexis-Nexis requires our customers to declare a permissible purpose before they can run a search and obtain information from motor vehicle records. If the customer does not declare a permissible purpose, they are not permitted to access the motor vehicle records.” Jones called privacy class action lawsuits an “emerging trend” for plaintiffs’ lawyers. “It is unfortunate that in order to provide our valuable services we must deal with those that would attack legitimate services that we and our competitors have offered since the DPPA was passed nearly a decade ago,” he said. The way the case plays out may hinge on the court’s interpretation of Florida’s legal duty regarding the privacy of state records on its citizens. As stated in the complaint, a key question for the court will be whether obtaining personal motor vehicle information for resale is allowed even when the party buying it for resale intends to use it for a purpose specifically authorized in the federal act, such as research activities and court proceedings. As originally enacted, the Driver Privacy Protection Act made it unlawful in most cases to disclose or obtain personal information from any motor vehicle record unless the subject of the information had authorized such disclosure. Marketers were allowed to use the information as long as states gave licensed drivers and vehicle owners the opportunity to opt out if they wanted their personal data kept confidential, according to the lawsuits. In 1999, Congress amended the act to eliminate the opt-out provision for marketing to give drivers more control of their personal information. Now, such data can only be obtained if the subjects of that information give their “express consent” to its release, the suits say. The change took effect in June 2000. In addition, it is unlawful to obtain such information “for the purposes of reselling such information, even if the party engaged in the resale of such information intends that it be resold only for a purpose permitted under the DPPA,” the suits say. The Internet site of the Florida Department of Highway Safety and Motor Vehicles shows that the department requires licensed drivers to apply to the state to have their personal information shielded from release. State Sen. Jim Sebesta, R-St. Petersburg, proposed legislation earlier this year — S.B. 2416 — that would have amended Florida law to comply with the tougher disclosure requirements imposed by the 1999 congressional amendments to the federal driver’s privacy act. A statement of public necessity filed with the bill justified it as necessary to protect drivers and car owners from criminals. The bill failed. Florida Department of Highway Safety and Motor Vehicles spokesman Robert Sanchez acknowledged that state law does not conform to the current federal requirements for disclosure. Asked to explain why not, Sanchez said, “As a state agency, we are bound to comply with Florida statutes, and we do.” Sanchez added that some particularly sensitive personal information, including Social Security numbers, is exempt from release under state law.

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