With the continuing computerization of government records and the development of sophisticated new database technologies, journalists should be in the midst of a government-access renaissance. But with the information revolution has come heightened fears that increased access will lead to excessive intrusions on personal privacy. Shielding the public from perceived violations of their privacy has become one of the principal preoccupations of state and federal lawmakers.
The Minnesota Legislature is no exception. It considered several privacy proposals in the 1999-2000 session. The proposals came from all directions - from Attorney General Mike Hatch, from the DFL Senate and House caucuses, and from House Republicans under their "Privacy Bill of Rights" banner. Although none of these proposals was passed last session, most are sure to reappear in the next session beginning in January 2001.
The U.S. Congress also passed several laws limiting public access to information in the name of privacy protection. A new federal law requires web sites collecting information on customers under age 13 to first obtain parental permission. More privacy legislation can be expected soon from Congress. Senate Democrats recently formed a Privacy Task Force to design measures to close off access to "personal information," and a bi-partisan Congressional Privacy Caucus was also formed to consider additional privacy legislation.
The White House has been working with the Federal Trade Commission to devise a regulatory scheme to govern the handling of personal information by commercial Web sites. And in March 1999, President Clinton appointed law professor Peter Swire to be the new White House "privacy czar."
The courts have for the most part endorsed these mounting restraints.
In its 1999-2000 term, the U.S. Supreme Court became the venue for two access-privacy battles. The Court decided Los Angeles Police Dept. v. United Reporting Publishing Corp., 120 S.Ct. 483 (1999) and Reno v. Condon, 120 S.Ct. 666 (2000), both of which rejected constitutional challenges to access restrictions.
In LAPD, the Court considered whether a California law prohibiting the release of police blotter information to those using the information for a "commercial" purpose violates the First Amendment. The law permits access to this information only when used for a "scholarly, journalistic, political or governmental purpose."
The Court ruled (7-2) that because the government is not constitutionally compelled to provide access to its records, the limitations imposed do not raise a First Amendment problem. In fact, the Court said the government could deny access to arrest information altogether without violating the First Amendment. The Court also sanctioned a system of discriminatory access. Although journalists were included in the favored class of requestors under California law, they might not be in other legislation. Many journalists reject laws giving them a special status because they require the government to determine who is and who is not a journalist.
In Reno, Congressional authority to dictate state records policy was the issue before the Court. The Driver's Privacy Protection Act, passed by Congress in 1994, regulates the release of driver information collected by states through their licensing and registration processes. South Carolina challenged the law as an infringement of states' rights under the 10th Amendment.
The Supreme Court unanimously ruled that because the DPPA regulates the sale of data, the Commerce Clause enables Congress to regulate its dissemination. The Court rejected the states' rights argument, saying the DPPA regulates states only as owners of databases; it does not intrude on their "sovereign capacity to regulate their own citizens."
Reno affirmed the federal government's dominion over the sale of all government records, raising concern that access-friendly state laws are now at risk of being overrideen by federal restrictions.
While the DPPA case was pending before the Supreme Court, Congress passed an amendment to the law, which provides specific penalties for states that grant access to individuals' motor vehicle records without their consent. Commonly referred to as the Shelby amendment, this legislation changed the law from an "opt-out" to an "opt-in" system. "Opt-out" means records are presumptively open to the public, unless the individual record subject objects. "Opt-in" means records are closed, unless the subject affirmatively consents to their release. The Shelby amendment provides that states will be fined up to $5,000 for each day they are in violation of the law.
In January 2000, Minnesota Sen. Leo Foley introduced a bill to require state government compliance with the Shelby amendment. But after considering the policy issues involved, the extent to which the law intrudes on the state's autonomy, and the fact that the state makes more than $10,000 a day by selling motor vehicle records, the Senate Data Practices subcommittee amended its bill to require compliance only if the federal government begins imposing fines. The amended bill was never considered by the full Senate before the end of the session in May 2000.
Nevertheless, on July 6, 2000, Minnesota Commissioner of Public Safety Mike Weaver took what appears to be an unprecedented step by ignoring the sentiments of the Legislature and unilaterally mandating Shelby compliance as of August 1, 2000. The impact of implementation of this policy on journalists may be insignificant, however. In practice, Minnesota journalists have been treated as exempt from the DPPA under a "catch all" exemption that allows access for those whose use of motor vehicle information promotes highway safety. Because the Department of Public Safety has said in the past that journalists qualify under that exemption, Weaver's action may have little practical effect on them, although it will largely shut out access by the general public.
More than a dozen privacy initiatives were introduced by legislators in the last session. Among the most comprehensive was the Attorney General's proposal that would have restricted the release of customer data by banks, phone companies, telemarketers and medical companies absent customer consent.
Broad bi-partisan support for additional privacy legislation, acquiescence by the courts and public support sugget that the government's movement to reshape the balance between privacy and access may have only just begun.