Today's privacy column has nothing but bad news for marketers. If you have been having a tough day, maybe you should read this later.
The subject is the implementation of the 1994 federal Drivers Privacy Protection Act (DPPA) in Maryland. The act required any state wishing to sell or otherwise publicly disclose driver's license and motor vehicle registration information to give individuals the right to opt-out of some disclosures, including disclosures to marketers.
The choice for states was to stop disclosing lists for some purposes or to change its procedures to allow individuals a choice.
Two states sued to block enforcement of the law. Both South Carolina and Oklahoma were successful in convincing federal district courts that the federal law exceeded constitutional boundaries.
For the marketing industry, those decisions may be the only ray of sunshine here. However, enforcement of the law was enjoined only in those two states. Other states did not object, and some passed implementing legislation.
Maryland was one of those states. The first attempt to draft a law in Maryland came in 1996. State Senator Brian Frosh introduced a bill to implement the federal standards but with some strengthened privacy features. When the bill emerged from committee, most privacy features were weakened or removed. The bill was ultimately sidetracked.
In 1997, Frosh tried again, this time successfully. As enacted, the bill largely accepted the federal balance over privacy. The state Motor Vehicle Administration (MVA) was required to begin offering an opt-out to consumers in 1997.
The opt-out program began in the fall. For new or renewal licenses or registrations, opt-outs were included on the application form. One opt-out is for surveys and marketing, and the other is for individual look-ups. In addition, MVA established a Web site and a toll-free number to allow existing license holders to opt-out.
In November, word of the new choice began to circulate on the Internet. In the usual fashion, the Internet messages were a mixture of correct and incorrect information. The tenor of those that I saw was that people were unhappy — some would say outraged — that the state was selling their data. The advice to all was to opt-out quickly.
Newspapers picked up the story from the Internet, and the additional publicity expanded the demand for opt-out. The last statistics I have are from December. In early November, about 10,000 people opted out each week. When the Washington Post ran a news story about the new law, 25,000 people opted out in four days. Opt-out rates hit 50,000 a week by the end of November and beginning of December.
The toll-free number was perpetually swamped with calls, and people were advised to call only after 11 p.m. or later. In one office, opt-outs by license applicants were estimated to be running at 85 percent. By mid-December, Maryland had received nearly a quarter of a million opt-outs.
Under the traditional view, opt-outs are thought to favor data users. People will presumably accept the default choice, and an opt-out allows data to be disclosed unless action is being taken to block disclosure. Based on the results in Maryland, the demand for privacy of motor vehicle records is so strong that it may not matter, at least not in this context.
Based on the results so far, many people are unhappy that the state is selling their personal information. They are willing to take affirmative action to block disclosure of the data. By the time everyone has renewed his or her license, few records may remain available for disclosure.
The Maryland law was prompted by the federal DPPA. But it was not made contingent on the constitutionality of the federal statute. Even if the federal law is thrown out nationwide, the Maryland law will remain in force unless changed. Because of the tremendous public demand for privacy, it is apparent that the law is safe for the foreseeable future.
In fact, bills are being drafted to strengthen the privacy features of the Maryland law. Proposals are circulating to change the opt-out into an opt-in. The argument is that if most Maryland drivers want to keep their records closed, it make more sense to reflect their wishes in the default choice.
In addition, there is talk about further restricting the information elements that can be made public. Not everyone was happy that the law allows public disclosure of medical information.
I can't assess the likelihood that privacy features of the Maryland drivers law will be enhanced in the 1998 session. But legislators all over the state took notice of the public's desire for privacy. New legislation restricting the public disclosure of other state records could be proposed. Privacy could be a significant legislative issue this year in Maryland.
So let's summarize the bad news here. Activities on the Internet (always a hot bed for privacy) triggered enormous public and press interest in protecting the privacy of motor vehicle records.
The requirement for an opt-out rather than an opt-in created no real barrier to action for many individuals. Maryland drivers' records are being closed to marketers (and others) at a high rate, and it is possible that the law's privacy features will be strengthened.
We are not done yet. On Dec. 6, the Washington Post editorialized about the Maryland experience. The Post noted how the availability of public records on the Internet has resulted in a major psychological shift in attitudes toward public availability.
The editorial concluded that opt-out rules “help with what evidently scares people most, the passive and unintended exposure of material they cannot avoid filing with the authorities.”
Even the newspapers — heretofore staunch allies in the battle for openness of public records — seem to be abandoning the field. The Post is only one newspaper and Maryland is only one state. But it is hard to find a bright spot in any of this for marketers and other users of public records.
Robert Gellman is a Washington, DC-based privacy and information policy consultant and former chief counsel to the House of Representatives subcommittee on information, justice, transportation and agriculture. His e-mail address is [email protected].
