• April 9, 2014
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Local TV News Personality: Tim Sherno

1992 independent presidential candidate, Ross Perot, conjured up the metaphor of a “giant sucking sound,” the sound of jobs and dollars that, in Perot’s view, would be “sucked” South of the border to Mexico if the U.S.A. passed the North American Free Trade Agreement ( or “NAFTA”).

NAFTA passed and it turns out that Perot might have been right.

There is another “giant sucking sound” going on right now in Minnesota civil litigation — it is the sound of money being sucked from public coffers of Minnesota cities, towns, municipalities, and from the state of Minnesota itself to plaintiffs’ lawyers and folks like the pictured Tim Sherno thanks to claims being brought under the federal Drivers’ Privacy Protection Act (or “DPPA”) and the state of Minnesota’s apparently abject failure to train public employees as to permissible access to Minnesota drivers’ license records.

The DPPA prohibits unauthorized “use” of drivers’ license data. The DPPA provides for damages of $2,500 per violation. Mr. Sherno’s lawyers have brought a complaint saying that his drivers’ license records were accessed in violation of the DPPA “approximately four hundred thirty (430) times.” That’s over $1 million in statutory penalties (plus attorneys’ fees).

To be clear, because publicly employed workers allegedly looked at Sherno’s drivers’ license data without a “permissible purpose,” it is possible that Sherno might have an award of over $1 million coming his way for the supposed impermissible “use, disclosure, or obtaining” of his “confidential” drivers’ license information.  He does not need to show that he suffered any kind of harm at any time.

With apologies for the blunt language, that sucks, in my opinion.

In full disclosure, I am defense counsel in a DPPA case, which means that I am admittedly and obviously biased.

But, having said that, I still think my arguments are worthy of your consideration.

The DPPA prohibits “using, disclosing, or obtaining” drivers’ license data without a permissible purpose. I believe that merely looking at the data should not be understood as “using, disclosing or obtaining.” The DPPA has a criminal component. Courts are supposed to interpret our laws, both criminal and civil (where there is a criminal application), with “the rule of lenity,” meaning in favor of defendants. These city, state, or county employees who perhaps saw Mr. Sherno on television and just wondered, for example, how old he is and did not know that looking at his driver’s license was illegal (because that would not be a “permissible purpose”) face the possibility of criminal consequences for violating the DPPA? It cannot be said that they “used” the information in any sense. It was not alleged that they “disclosed” the information to anyone. It was not alleged that they “obtained” the data in the sense of appropriating it, taking physical possession of it, or copying and retaining it.

Is it really fair to say they “obtained” it by looking at it? Does the server at a bar “obtain” your drivers’ license data? If some clerk or administrator mistyped “Sjerno” and accidentally typed “Sherno,” calling up Mr. Sherno’s license for a split second, is it fair to say the clerk “obtained” Mr. Sherno’s drivers’ license data?

Folks like Mr. Sherno appear to have suffered literally ZERO harm or damage but they seek to sock Minnesota cities and municipalities with over a million dollars in damages? Can someone convince me that this makes sense?

The vast majority of these cases are “rent seeking.” That is, they amount to reallocations of money without creating any actual value of any kind, whether social or economic. If a judicial solution to this rent-seeking conduct is not adopted (and there is no sign of courts adopting my argument), the only other ways to clean up the problem are either legislative (good luck getting the U.S. Congress to give attention to this issue when it cannot seem to tackle much of anything these days) or to process this litigation like some unlucky people have to pass kidney stones — with pain, patience, and perseverance.

(I qualify my opinion to address “the vast majority of these cases” rather than all of them because, in rare circumstances, the DPPA does address and remedy some cases of actual wrong-doing — for example, where government workers inappropriately exploit access to drivers’ license records in ways that result in actual harm (identity theft, stalking, aiding/abetting stalking, etc.)).

 

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