Michigan Law shields drivers’ personal information from disclosure for ‘solicitation’ purposes; now auto accident victims need same protection
Last week, a letter I wrote to the Michigan Lawyers Weekly newspaper was published, urging support for House Bills 4770 and 4771. Passing these bills is the next step toward protecting the public from “ambulance chasing” personal injury lawyers, and protecting the profession of law from the damage these lawyers are creating.
These new legislative bills would impose some limits on access to the personal information that attorneys use to solicit people who’ve been injured in automobile accidents by obtaining police reports and then sending out letters (or using proxy groups and medical doctors to call them at home).
Here’s a chronology on privacy from accessing driver information:
- The first step came in 2000 when the Michigan Legislature amended Michigan’s “Driver Privacy Protection Act” (DPPA) to ban the disclosure and use of the personal information that drivers provide to the Secretary of State and other state agencies, such as the Department of Natural Resources, “for the purpose of … marketing … and solicitations.”
- The second step came on June 17, 2013, when the U.S. Supreme Court ruled that, under the “litigation” exception to the federal “Driver’s Privacy Protection Act,” the personal information that drivers provide to state departments of motor vehicles could not be obtained and used by attorneys to solicit new clients as plaintiffs for a lawsuit.
- Now, the third step is passing HB 4770 and 4771, which propose to build on the above protections by extending their disclosure and solicitation prohibitions to the personal information that car and truck accident victims provide to the police after a crash.
Together, the bills impose a 30-day restriction on access to the records or “motor vehicle accident reports” containing accident victims’ contact information and impose a 30-day prohibition on “direct solicitation” of accident victims by lawyers and non-lawyers.
I personally would prefer a 90 day time-limitation, which would also have the effect of wiping out much of the PIP insurance fraud that occurs in this state.
The sponsors of HB 4770 and 4771 are Rep. Ellen Cogen Lipton (D-27th District), a respected member of the Michigan Bar, and Rep. Joseph Graves (R-51st District), respectively. Take a look at a recent guest blog from Rep. Graves on these bills.
House Bills 4770 & 4771
If (and, hopefully, when) passed, HB 4770 and 4771 will stop “ambulance chasing” lawyers from “directly soliciting” car accident victims for their legal business by exploiting a loophole in the Michigan Rules of Professional Conduct.
Currently, there are nearly a dozen law firms and lawyers who, during the hours and days after an accident, are inundating accident victims with a barrage of mailers, brochures, and packages of glossy promotional materials.
Additionally, some lawyers have even become so brazen in their solicitations as to “hire” non-lawyer proxies such as chiropractors and front organizations with misleading names like “Michigan Accident Services” to call accident victims on the phone, knock on doors and ring doorbells.
By imposing stiff penalties, the bills by Rep. Lipton and Rep. Graves can be this disgraceful “tactic” to an end.
Under Lipton’s HB 4770, lawyers and non-lawyers working on their behalf who violate the 30-day waiting period for accessing records, such as the “motor vehicle accident reports” prepared by law enforcement at the crash scene, would be guilty of a felony punishable by up to two years imprisonment and/or a fine of up to $15,000.
Under Graves’s HB 4771, lawyers and non-lawyers working on their behalf who violate the 30-day waiting period on “direct solicitation” would be guilty of a misdemeanor, punishable by fines up to $15,000 and $30,000.
Both proposals are excellent, but I think they could be improved by increasing the waiting periods from 30 days to 90 days and by making the penalty for “direct solicitation” in HB 4771 a felony punishable by imprisonment, like the penalty in HB 4770.
Driver Privacy Protection Acts
In 1994, the U.S. Congress enacted the federal “Driver’s Privacy Protection Act” (DPPA) to protect the privacy of the personal information that drivers’ provide to State departments of motor vehicles (DMVs). (See 18 U.S.C. Sections 2721-2725) Subject to a few limited exceptions, the federal law prohibits DMVs from disclosing drivers’ personal information (which includes a driver’s name, address, phone number and driver’s identification number), and it prohibits “persons” from obtaining and disclosing the information.
In 1997, Michigan enacted its own “Driver Privacy Protection Act” (DPPA), which was inspired by, modeled after and was nearly identical to the federal law, including the federal DPPA’s “exceptions” to its general prohibition on disclosure of drivers’ personal information.
However, in contrast to the federal law, which targets “State department[s] of motor vehicles,” the disclosure prohibitions in Michigan’s DPPA apply to “the secretary of state” and “any other state agency.”
U.S. Supreme Court Upholds Right To Privacy In Drivers’ Personal Information
On June 17, 2013, in Maracich v. Spears, the U.S. Supreme Court ruled that the “litigation” exception to the disclosure prohibition of the federal DPPA does not allow attorneys to obtain (from State departments of motor vehicles) and use drivers’ personal information to solicit new and prospective clients:
“Solicitation of prospective clients is not a permissible use ‘in connection with’ litigation or ‘investigation in anticipation of litigation’ under [the litigation exception] of the DPPA.”
The Maracich ruling came in response to efforts by a group of South Carolina lawyers to obtain drivers’ personal information from the state DMV and use that information to solicit new clients to serve as plaintiffs in a lawsuit the lawyers had filed.
It’s significant what the Supreme Court in Maracich had to say about how “solicitations” impact “privacy”:
“Direct marketing and solicitation present a particular concern not only because these activities are of the ordinary commercial sort but also because contacting an individual is an affront to privacy even beyond the fact that a large number of persons have access to the personal information.”
Although the Supreme Court’s Maracich decision involved the federal DPPA’s “litigation” exception, it is likely that Michigan drivers will benefit from the ruling’s protection of drivers’ privacy, because the “litigation” exception in Michigan’s DPPA is nearly identical to the federal version.
To read more, check out Michigan Auto Law’s blog post, “Lawyers can’t use state DMV records to solicit auto accident victims under ‘litigation’ exception to Federal Driver Privacy Act.”
Michigan’s Driver Privacy Protection Act prohibits disclosure for ‘solicitations’
Under a 2000 amendment to Michigan’s DPPA, the Secretary of State and other state agencies, such as the Department of Natural Resources, are absolutely prohibited from disclosing drivers’ personal information for marketing and/or solicitation purposes:
“The secretary of state or any other state agency shall not sell or furnish any list of [of drivers’ personal] information … for the purpose of … marketing, and solicitations.” (MCL 28.300(3); 257.232(3); 324.80130c(3); 324.80315c(3); 324.81114c(3); 324.82156c(3))
The “personal information” at issue includes drivers’ names, addresses, phone numbers, social security numbers and driver identification numbers. (MCL 28.291a(b))
A June 12, 2000, report from the House Legislative Analysis Section (HLAS), sheds light on what lawmakers’ reasoning may have been for enacting Michigan’s outright and absolute ban on the disclosure and use of drivers’ personal information “for the purpose of … solicitations”:
“According to reports, many citizens have no idea the state sells information to mass marketers, or that since 1997 they have had the right as citizens to opt-out as customers when their personal information is sold to those who would use it to solicit sales. When informed of the state’s practice of selling lists, they disapprove. The bills [proposing to ban all disclosures for solicitation purposes] would help to protect Michigan citizens’ right to privacy by prohibiting the sale of bulks lists containing citizens’ personal information to those who use the information to market goods.”
It’s worth noting that drivers’ personal information is safer and better protected from attorney solicitation by Michigan’s strict DPPA than it would be under the more lenient federal law.
In contrast to Michigan’s outright and absolute ban on the disclosure and use of drivers’ personal information “for the purpose of … solicitations,” the federal DPPA says drivers’ personal information “may be disclosed” by a “State department of motor vehicles” if the disclosure is for:
“[B]ulk distribution for … marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.” (See 18 U.S.C. Section 2721(b)(12))
