                                                                              [PUBLISH]


                    IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                                                                         FILED
                                                                 U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                        04/06/99
                                       No. 98-6261                  THOMAS K. KAHN
                                                                         CLERK

                            D. C. Docket No. CV-97-D-1396-N


BILL PRYOR, Attorney General for the State of
Alabama, STATE OF ALABAMA,


                                                                        Plaintiffs-Appellants,

                                          versus


JANET RENO, Attorney General of the United States,
UNITED STATES OF AMERICA,


                                                                       Defendants-Appellees.




                        Appeal from the United States District Court
                            for the Middle District of Alabama


                                      (April 6, 1999)




Before TJOFLAT, Circuit Judge, GODBOLD and HILL, Senior Circuit Judges.

HILL, Senior Circuit Judge:
      Plaintiffs, Bill Pryor, Attorney General for the State of Alabama, and the

State of Alabama (referred to collectively as Alabama or “the State”), sought a

declaratory judgment that the Driver’s Privacy Protection Act of 1994, 18 U.S.C.

§§ 2721-25, is unconstitutional under both the Tenth and Eleventh Amendments to

the United States Constitution, and an injunction prohibiting the defendants Janet

Reno and the United States from enforcing the Act in whole or in part. The district

court entered summary judgment for the United States, from which Alabama

appeals.

                                               I.

      The Driver’s Privacy and Protection Act of 1994 (“DPPA” or “the Act”), 18

U.S.C. §§ 2721, et seq., regulates the sale, dissemination and use by the State and

private individuals of personal information1 contained in the State’s motor vehicle

records.2 The Act prohibits “a State department of motor vehicles, and any officer,



      1
       Section 2725(3) of the Act defines personal information as:
             information that identifies an individual, including an individual’s
             photograph, social security number, driver identification number,
             name, address (but not the five-digit zip code), telephone number,
             and medical or disability information, but does not include
             information on vehicular accident, driving violations, and driver’s
             status.
      2
       Section 2725(1) of the Act defines a “motor vehicle record” as:
             any record that pertains to a motor vehicle operator’s permit, motor
             vehicle title, motor vehicle registration, or identification card
             issued by a department of motor vehicles.

                                               2
employee, or contractor, thereof, [from] knowingly disclos[ing] or otherwise

mak[ing] available to any person or entity personal information about any

individual obtained by the department in connection with a motor vehicle record.”

18 U.S.C. §2721(a). It makes it unlawful for a State department of motor vehicles

[DMV], and any officer, employee, or contractor thereof, to knowingly disclose or

otherwise make available personal DMV information for any purpose other than a

“permissible use.” 18 U.S.C. § 2721(b). State departments of motor vehicles with

a “policy or practice of substantial noncompliance” with the Act’s provisions are

subject to a civil penalty of up to $5,000 a day for each day of substantial

noncompliance, to be imposed by the United States Attorney General. 18 U.S.C. §

2723(b). Persons who knowingly violate the Act are subject to criminal fines. 18

U.S.C. § 2723(a).

      Reversing course, the Act then allows disclosure of personal information in

abundant circumstances. 18 U.S.C. § 2721(b). For example, the Act requires that

such information be disclosed for use in matters of motor vehicle or driver safety

and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or

advisories, performance monitoring of motor vehicles and dealers by motor vehicle

manufacturers, and removal of non-owner records from the original owner records

of motor vehicle manufacturers to carry out the purposes of titles I and IV of the


                                          3
Anti Car Theft Act of 1992, the Automobile Information Disclosure Act, the Clean

Air Act, and chapters 301, 305, and 321-331 of title 49. 18 U.S.C. § 2721(b)

(citations omitted). It further provides that personal information may be disclosed

for use by any government agency in carrying out its functions, id. § 2721(b)(1); in

connection with car or driver safety, theft and other motor-vehicle related matters,

id. § 2721(b)(2); for use in the normal course of business by a legitimate business

in certain instances, id. 2721(b)(3); for use in connection with any civil, criminal,

administrative or arbitral proceedings in any Federal, State, or local court or

agency or before any self-regulatory body, id. § 2721(b)(4); for use in research

activities, and for use in producing statistical reports, so long as the personal

information is not published, redisclosed, or used to contact individuals, id. §

2721(b)(5); for use by an insurer or insurance support organization, or by a self-

insured entity, or its agents, employees, or contractors, in connection with claims

investigation activities, anti-fraud activities, rating or underwriting, id. §

2721(b)(6); for use in providing notice to owners of towed or impounded vehicles,

id. § 2721(b)(7); for use by a licensed private investigative agency or licensed

security service for any purpose permitted under the Act, id. § 2721(b)(8); for use

by an employer or its agent or insurer to obtain or verify required information

relating to a holder of a commercial driver’s license, id. § 27221(b)(9); and for use


                                            4
in connection with the operation of private toll transportation facilities, id. §

2721(b)(10).

      The DPPA also regulates private individuals’ sale or disclosure of the above

information. The Act prohibits authorized recipients of personal DMV information

from reselling or redisclosing personal information for a use which the State could

not have disclosed it in the first place. 18 U.S.C. § 2721(c); 18 U.S.C. § 2722(a).

The Act requires that individuals reselling or redisclosing personal information for

a permissible use keep records for five years stating to whom they have resold or

redisclosed the information and the purpose of any such release, and must make

these records available to the state department of motor vehicles upon request. 18

U.S.C. § 2721(c). The Act also bars any person from knowingly obtaining

personal DMV information for any unauthorized use, 18 U.S.C. § 2722 (a), and

from obtaining personal information “by false representation,” 18 U.S.C. §

2722(b). Individuals who knowingly violate these provisions are subject to

criminal fines, 18 U.S.C. § 2723(a), and private rights of action by the person to

whom the personal information pertains. 18 U.S.C. § 2724.

      In addition to the exceptions noted above, the Act allows States to establish

waiver procedures to handle requests for disclosures that do not fall within these

exceptions. 18 U.S.C. § 2721(d). The DPPA allows States to release personal


                                           5
information for any use not included in the Act’s list of permissible uses, if the

motor vehicle department provides individuals an opportunity to prohibit such

disclosure. 18 U.S.C. § 2721(b)(11). Also, departments of motor vehicles are

permitted to release personal information for “bulk distribution” for surveys,

marketing or solicitations if individuals have an opportunity to prohibit such

disclosures. 18 U.S.C. § 2721(b)(12).

       Alabama contends that Congress exceeded its authority under the Tenth and

Eleventh Amendments when it enacted the DPPA. The State contends that the

DPPA is an unconstitutional federal directive requiring it to administer a federal

program in violation of the Tenth Amendment. The State further contends that the

penalties imposed by the Act for noncompliance violate the Eleventh Amendment.

The United States counters that the Act is a constitutional exercise of Congress’

power under the Commerce Clause of the United States Constitution to regulate

and control the dissemination of personal information in state DMV records in

order to protect the privacy and safety of individuals. On cross-motions for

summary judgment,3 the district court held that the Act is a valid exercise of

Congress’ authority to regulate interstate commerce, and that it violates neither the



       3
        The United States’ motion was for dismissal which the district court construed as a
motion for summary judgment pursuant to Rule 12(b), Fed. R. Civ. P.

                                               6
Tenth nor the Eleventh Amendment. Alabama appeals from the entry of this

judgment.

                                           II.

      Alabama asserts that the DPPA violates the Tenth Amendment in two ways.

First, Alabama contends that the Commerce Clause does not authorize Congress to

invade the Tenth Amendment by regulating the States’ dissemination of motor

vehicle information. Second, Alabama contends that the Tenth Amendment

prohibits Congress from requiring it to administer a federal program.

A.    Congress’ Authority to Enact the DPPA

      Alabama argues that Congress exceeded its authority in regulating the

States’ release of motor vehicle information because the dissemination of this

information is neither commerce, nor an activity substantially affecting commerce.

Although it is abundantly clear that trafficking in data bases is an activity that

substantially affects interstate commerce these days, we are, nonetheless,

sympathetic to this argument. Congress drew its authority to regulate this activity

from its nexus to interstate commerce, and then proceeded to exempt from the

reach of the Act virtually all its interstate connections.




                                            7
       It is clear that Congress sought by this Act to protect the public from

“stalkers” who might use motor vehicle information to locate their victims.4 In

trying to protect legitimate governmental and business uses of such information,

however, Congress riddled the Act with more holes than Swiss cheese. Through

these holes escaped most of the interstate commerce activity covered by the Act.

Thus, Congress claims its authority to regulate the States’ dissemination of

personal DMV information lies in its power to regulate the commercial aspect of

this information which it then proceeded to exclude from the Act.

       We shall not resolve this troublesome issue, however, because we are

persuaded that even if there is a sufficient connection between this legislation and

interstate commerce to authorize Congress to enact the DPPA, the Act violates the

Tenth Amendment.

B.     The DPPA and the Tenth Amendment

       The Supreme Court has recently made clear that the federal government may

not command the States to administer or enforce a federal regulatory program.



       4
        During floor debate on the Senate version of the Act, Senators invoked the example of
Rebecca Shaeffer, an actress from California, who was murdered by an obsessed fan who
obtained her address from the department of motor vehicles through a private investigator. See
139 Cong. Rec. S15,766, Comments of Senator Harkin. See also (Feb. 4, 1994) (statement of
Rep. Moran); 139 Cong. Rec. S15,762 (Nov. 16, 1993) (statement of Sen. Boxer); 139 Cong.
Rec. S15,765 (Nov. 16, 1993 )(statement of Sen. Robb); 139 Cong. Rec. S15,765 (statement of
Sen. Biden).

                                               8
Printz v. United States, 521 U.S. 98, 117 S. Ct. 2365, 2384 (1997); New York v.

United States, 505 U.S. 144, 176-77, 112 S. Ct. 2408 (1992). In New York, the

Supreme Court addressed the constitutionality of the Low-Level Radioactive

Waste Policy Act which required States to choose between accepting ownership of

radioactive waste generated within their borders and regulating this waste

according to instructions from Congress. 505 U.S. at 152. The Court found that

this provision “commandeers the legislative processes of the States by directly

compelling them to enact and enforce a federal regulatory program,” in violation of

the Tenth Amendment. Id. at 176. In Printz, the Court extended the holding of

New York to recognize that the Tenth Amendment protects state officers, as well as

States, from federal commandeering. In Printz, the Court held unconstitutional

provisions of the Brady Handgun Violence Prevention Act which imposed interim

requirements on State chief law enforcement officers (“CLEOs”) to conduct

background checks on prospective handgun purchasers and to perform related

tasks. 117 S. Ct. at 2368. The Act required CLEOs to:

      make a reasonable effort to ascertain within 5 business days whether
      receipt or possession [of a firearm by a particular purchaser] would be
      in violation of the law, including research in whatever state and local
      record keeping systems are available.

Id. at 2369 (quoting 18 U.S.C. § 922(s)(2)). The Court characterized this provision

as one directing or forcing state law enforcement officers to participate in the

                                          9
administration of a federally enacted regulatory scheme. Id. at 2369, 2376. The

Court held the requirement violated the Tenth Amendment because:

      [t]he Federal Government may neither issue directives requiring the
      States to address particular problems, nor command the States’
      officers, or those of their political subdivisions, to administer or
      enforce a federal regulatory program. It matters not whether
      policymaking is involved, and no case-by-case weighing of burdens or
      benefits is necessary; such commands are fundamentally incompatible
      with our constitutional system of dual sovereignty.

Id. at 2384.

      Although New York and Printz make clear that federal law may not direct

state officials to administer or enforce a federal regulatory scheme, they are less

helpful in identifying the attributes of such a law. We recognize that the DPPA

does not compel Alabama to enact legislation as in New York; nor does it conscript

state officers to help the federal government search for potential violations of

federal law as in Printz.

      Nevertheless, the DPPA does establish a detailed set of rules under which

Alabama’s disclosure or refusal to disclose to third parties the personal information

in its motor vehicle records shall be done as the federal establishment wishes it to

be done. The Act requires that department of motor vehicle officers disclose

personal information contained in its motor vehicle records for use in connection

with matters of motor vehicle or driver safety and theft and to carry out various


                                          10
federal statutes.5 It further provides that personal information may be disclosed in

fourteen other circumstances. It seeks to regulate the circumstances under which

private individuals may obtain this information and to prevent the disclosure at all

in certain instances. No one disputes that Congress, through the DPPA, has

enacted a federal regulatory program to control the dissemination and cloaking of

the States’ motor vehicle information.

        Furthermore, the Act is neither self-administering nor self-enforcing. State

officers are directed to administer and enforce these rules. They must insure that

protected information is disclosed only for the designated purposes specified by the

federal rules. In complying with the Act, state officers must review requests for

information to determine whether the request is for a permissible use. The Act

contains no explicit instructions regarding the extent to which the state officer must

investigate and confirm the accuracy of the claims made by individuals requesting

the information. In reviewing requests and interpreting the rules, state officers will

be acting as federal agents making federal policy. See Printz, 117 S. Ct. at 2380-

81.




       5
         This requirement nullifies the United States’ argument that the Act does not command
the States to do anything because the States may simply opt out of this legislation by deciding to
close their DMV records completely.

                                                11
       Thus, we conclude the DPPA is a federal regulatory program which

Congress has directed state officers to administer. Congress may not enlist state

officers in this way. Printz, 117 S. Ct. at 2380. As the Court stated in New York:

              States are not mere political subdivisions of the United States.
       State governments are neither regional offices nor administrative
       agencies of the Federal Government. The positions occupied by state
       officials appear nowhere on the Federal Government’s most detailed
       organizational chart.

505 U.S. at 188.

       The United States argues that it is permissible for Congress to command

state officers to assist in the implementation of federal law so long as Congress

itself devises a clear legislative program that regulates the States directly rather

than requiring them to regulate third parties. The DPPA, it is said, is constitutional

because it directly regulates state activities and neither directs the States or their

officials to regulate their citizens, nor to construct any regulatory regime.

       We disagree. To be sure, Congress may require the States to comply with

federal regulation of an activity affecting interstate commerce when the States

choose to engage in that activity.6 Thus, the States as employers must comply with


       6
         In fact, Congress may totally occupy a field of regulation of interstate commerce but
permit continued state regulation of the activity so long as a State meets certain preconditions.
The DPPA does not, however, preempt the field of licensing drivers. Nor does it impose
preconditions to the States’ continued regulation of a totally preempted field. It seeks only to
direct the States in that regulation.

                                                12
the federal minimum wage law. Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985). See also South Carolina v. Baker, 485 U.S. 505,

511-15 (1988) (States may be required to issue bonds in registered form as are

private corporations); United Transp. Union v. Long Island R. Co., 455 U.S. 678

(1982) (labor laws apply to state-owned railroads); Fry v. United States, 421 U.S.

542 (1975) (States are bound by generally applicable wage and price controls).

      But all of these cases are examples of when a particularly strong federal

interest permits Congress to bring state governments within the orbit of generally

applicable federal regulation. Garcia, 469 U.S. at 554 (“San Antonio faces nothing

more than the same minimum-wage and overtime obligations that hundreds of

thousands of other employers, public as well as private, have to meet”). In Printz

and New York, the Supreme Court distinguished such laws of general applicability

from laws targeted exclusively at States. 117 S. Ct. at 2383; 505 U.S. at 160.

Although the Tenth Amendment does not automatically permit the former and

proscribe the latter, in the cases cited above the issue was whether the incidental

application to the States of federal laws of general applicability excessively

interfered with the functioning of state governments. The federal laws at issue

were upheld because the federal interest was strong enough to permit Congress to

bring state governments within the orbit of generally applicable federal regulation.


                                          13
       The Court has made clear, however, that where, as here, the “whole object of

the law [is] to direct the functioning of the state executive, and hence to

compromise the structural framework of dual sovereignty, such a ‘balancing’

analysis is inappropriate.” 117 S. Ct. at 2383. See also New York, 505 U.S. at 160

(radioactive waste statute unconstitutional because the “[take title] provision is

inconsistent with the federal structure of our Government established by the

Constitution”). Instead of bringing the States within the scope of an otherwise

generally applicable law, Congress passed the DPPA specifically to regulate the

States’ control of the States’ own property – the motor vehicle records. “It is the

very principle of separate state sovereignty that such a law offends, and no

comparative assessment of the various interests can overcome that fundamental

defect.” Printz, 117 S. Ct. at 2383.7

       It is not state power that the principle of state sovereignty protects. When

States are forced to administer federal programs, a fundamental attribute of State

       7
         The United States suggests that the DPPA is generally applicable when considered in the
context of other federal laws which regulate the dissemination of personal information, such as
the Video Privacy Protection Act, 18 U.S.C. § 2710 (restricting disclosure of personal
information contained in video rental records) and the Cable Communications Policy Act, 47
U.S.C. § 551 (restricting disclosure of personal information about cable subscribers). Even if a
statute could be considered generally applicable because it is part of some sort of scheme of
regulation, Congress has thus far regulated the disclosure of personal information by holders of
databases only in a piecemeal fashion. There is no generally applicable Congressional regulation
of the disclosure of such information even if all such laws are considered part of such a scheme.
Thus, there is no generally applicable Congressional regulation of this activity of which the
DPPA is a part.

                                               14
sovereignty is threatened: democratic accountability. It is this basic principle upon

which the Supreme Court rested its holdings in New York and Printz:

      By forcing state governments to absorb the financial burden of
      implementing a federal regulatory program, Members of Congress can
      take credit for “solving” problems without having to ask their
      constituents to pay for the solutions with higher federal taxes. And
      even when the States are not forced to absorb the costs of
      implementing a federal program, they are still put in the position of
      taking the blame for its burdensomeness and for its defects. . . . Under
      the present law, for example, it will be the CLEO and not some
      federal official who stands between the gun purchaser and immediate
      possession of his gun. And it will likely be the CLEO, not some
      federal official, who will be blamed for any error (even one in the
      designated federal database) that causes a purchaser to be mistakenly
      rejected.

117 S. Ct. 2365. The Court also observed in New York:

      But where the Federal Government directs the States to regulate, it
      may be state officials who will be the brunt of public disapproval,
      while the federal officials who devised the regulatory program may
      remain insulated from the electoral ramifications of their decision.
      Accountability is thus diminished when, due to federal coercion,
      elected state officials cannot regulate in accordance with the views of
      the local electorate in matters not pre-empted by federal regulation.

505 U.S. at 169 (citations omitted). Thus, when Congress requires the States to

administer a federal program, democratic accountability is diminished and for this

reason the Tenth Amendment is offended.

      This Act cannot be saved by the argument that it simply regulates a realm of

national economic activity – the buying and selling of personal information –


                                          15
whether or not the economic actors happen to be State or citizens.8 The DPPA is

not a law of general applicability.9 Only States collect driver’s license and motor

vehicle information. This is an exercise of sovereignty. See Peel v. Florida Dept.

of Transp., 600 F.2d 1070, 1083 (5th Cir. 1979) (“Overseeing the transportation

system of the state has traditionally been one of the functions of state government,

and thus appears to be within the activities protected by the tenth amendment”);

United States v. Best, 573 F.2d 1095, 1103 (9th Cir. 1978) (“[T]here is little

question that the licensing of drivers constitutes ‘an integral portion of those

governmental services which the States and their political subdivisions have

traditionally afforded their citizens’”).




       8
        A similar argument was made in Printz that the burden on officers of the state would be
permissible if a similar burden were also imposed on private parties with access to relevant data.
The Court rejected this argument by noting:
       The Brady Act does not merely require CLEOs to report information in their
       private possession. It requires them to provide information that belongs to the
       State and is available to them only in their official capacity; and to conduct
       investigations in their official capacity, by examining databases and records that
       only state officials have access to. In other words, the suggestion that extension
       of this statute to private citizens would eliminate the constitutional problem posits
       the impossible.
117 S. Ct. at 2383.
       9
        Although the Act restricts the way in which private parties who obtain personal
information from a motor vehicle department may resell or redisclose such information, the
Act’s applicability to private parties is incidental to its foremost purpose: regulating the way in
which state disseminate information collected by their motor vehicle divisions.

                                                 16
       Thus, we conclude that the DPPA is a federal program which Congress has

commanded the States to administer. As such, it offends the Tenth Amendment.10

Accord Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). But see Travis v. Reno, 163

F.3d 1000 (7th Cir. 1998); Oklahoma v. United States, 161 F.3d 1266 (10th Cir.

1998).

                                                III.

       The judgment of the district court is hereby REVERSED, and the case is

REMANDED. The district court shall grant Alabama’s motion for an injunction

against the enforcement of the DPPA.




       10
         We find no merit in the United States’ contention that the Act is a valid exercise of
Congress’ power to enforce the Fourteenth Amendment. U.S. Const. amend. XIV, §§ 1, 5.
Whether Congress properly exercised its power under Section 5 in enacting the DPPA depends
upon whether the Act enforces some right guaranteed by the Fourteenth Amendment. According
to the United States, we have held that there is a “right to confidentiality” in the sort of personal
information protected by the DPPA. We disagree. For example, in one of the cases cited by the
United States, James v. City of Douglas, 941 F.2d 1539, 1544 (11th Cir. 1991), we acknowledged
a constitutional right to privacy only for intimate personal information given to a state official in
confidence. Because information contained in motor vehicle records is not this sort of
information, an individual does not have a reasonable expectation that the information is
confidential. Thus, there is no constitutional right to privacy in motor vehicle record information
which the DPPA enforces.
        We do not reach the Eleventh Amendment issue involving the constitutionality of the
fines provided for by the DPPA because we hold the Act unconstitutional under the Tenth
Amendment.

                                                 17
