US v. Kimberly Hastie (11th Cir., filed 4/25/17) Email addresses are “personal information” under the Driver’s Privacy Protection Act. Judge Jordan disagrees; argues it is a jury issue.

File this in the Things Not to do When You Hold a Position of Trust in the Government file. Ms. Hastie was the License Commissioner of Mobile, Alabama. She was responsible for issuing driver’s licenses and automobile titles, and she maintained motor vehicle registrations for the citizens of Mobile County.  She also supported a particular candidate for Mayor!  She asked her manager of information technology to send her the emails addresses from the License Commission’s database to her so she could use that list in her endorsement of Sandy Stimpson for Mayor.  The manager at first refused, saying that “everybody would know that we just used our E-mail database to send out this list.”  Instead, he downloaded the addresses onto a flash drive that was given to Hastie’s secretary who then gave those addresses to the Stimpson campaign.  Forthwith, the campaign used those addresses delivering Hastie’s personal endorsement of Sandy Stimpson for Mayor!

For this, Hastie was indicted for violating the Driver’s Privacy Protection Act.  She valiantly fought this case at trial, but lost.  She was sentenced to a fine of $5,000.  Damn right she appealed.  She first argued that the statutory definition of “personal information” did not include email addresses and that “the Government…failed to present sufficient evidence from which the jury could find beyond a reasonable doubt that she is an ‘officer, employee, or contractor of a STATE department of motor vehicles.”  Over both statutory construction issues and sufficiency of the evidence, the appellate court reviews de novo.  See United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009); Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235 (11th Cir. 1997).

The Court rejected both claims.  First, the Court notes there was specific testimony presented that addressed the relationship between Mobile County License Commission and the State of Alabama.  The jury heard, for instance, that the State oversees aspects of the License Commission. The Court noted other things, too.  In short, the jury could properly find that she was a state employee.  As to the privacy of the email issues, the Court notes that the Driver’s Privacy Protection Act defines “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.”  18 USC §2725(3).  The Court found that email addresses fall within the ordinary meaning of “information that identifies an individual.”  They can “prove” or “establish the identity of” an individual.  It is of no relevance that “email addresses” is not explicitly enumerated since the language of the statute states “including . . .” and then specifically exempts information on car wrecks, driving violations and a driver’s status.  There’s a nice discussion in the opinion about statutory construction.

Judge Gordon offered a thoughtful dissent.  He notes that Hastie asked the district court to give the jury the statutory definition of “personal information” and allow it to decide whether email addresses constitute “information that identifies an individual.”  Instead, the district court decided, as a matter of law, that email addressed did, in fact, identify the individual. In Judge Gordon’s view, this failure to give the requested jury charge constituted reversible error:

That, in my view, was reversible constitutional error.  It is undisputed that the disclosure of “personal information” is an element of a DPPA offense, and the Sixth Amendment and the Due Process Clause require that “each element of the crime be proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013).  As a result, the jury should have been allowed to decide whether the email addresses provided by Ms. Hastie constitute “personal information.”

Judge Jordan pointed to prior appellate court precedent that militates in favor of submitting the issue to the jury.  Two courts of appeal earlier reversed two other cases where the district court judges found, as a matter of law, that certain documents filed with the IRS did not constitute “returns” (US v. Goetz, 746 F.2d 705 (11th Cir 1984), and that certain oil leases constituted “investment contracts” and therefore “securities” (Roe v. United States, 287 F.2d 435 (5th Cir. 1961).  Judge Jordan would grant Ms. Hastie a new trial.

I sense a petition for rehearing en banc in Ms. Hastie’s near future with a robust dissent such as this.