FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HOWARD, SAMANTHA
KOSSA, ORA HOOPER, and JEANNA
FUEHRE on behalf of themselves
and others similarly situated,
Plaintiffs-Appellants, No. 10-35751
v. D.C. No.
CRIMINAL INFORMATION SERVICES, 3:09-cv-01477-MO
INC., OREGONIAN PUBLISHING CO.,
and WESTERN MERCANTILE AGENCY
INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
DAWN RODRIGUEZ, ADRIAN SIMAYS,
and SHARON SWANN on behalf of
themselves and others similarly
situated, No. 10-35779
Plaintiffs-Appellants,
v. D.C. No.
2:09-cv-01789-MJP
AMPCO PARKING SYSTEMS, OPINION
AUTOMOTIVE.COM INC., and
MEMBERS ONLY INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
10823
10824 HOWARD v. CRIMINAL INFORMATION SERVICES
Argued and Submitted
July 12, 2011—Seattle, Washington
Filed August 15, 2011
Before: Richard R. Clifton and N. Randy Smith, Circuit
Judges, and Edward R. Korman, Senior District Judge.*
Opinion by Judge Clifton
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York sitting by designation.
HOWARD v. CRIMINAL INFORMATION SERVICES 10825
COUNSEL
Thomas M. Corea (argued), The Corea Firm, Dallas, Texas;
Elizabeth M. Quick, Kirkland, Washington; Joseph H. Mal-
10826 HOWARD v. CRIMINAL INFORMATION SERVICES
ley, Dallas Texas; Goerge A. Otstott, Otstott & Jamison, Dal-
las, Texas, for plaintiffs-appellants Dawn Rodriguez, Adrian
Simays, and Sharon Swann.
Thomas M. Corea (argued), The Corea Firm, Dallas, Texas;
William C. Carpenter, Eugene Oregon; Joseph H. Malley,
Dallas Texas; George A. Otstott, Otstott & Jamison, Dallas,
Texas, for plaintiffs-appellants Michael Howard, Samantha
Kossa, Ora Hooper and Jeanna Fuehre.
Charles F. Hinkle (argued) and Joel A. Mullin, Stoel Rives,
Portland, Oregon, for defendant-appellee Oregonian Publish-
ing Company.
Susan K. Sullivan (argued) and Douglas J. Collodel, Sedg-
wick, Detert, Moran & Arnold, Los Angeles, California, for
defendant-appellee Members Only Inc.
Jack Levy and Chin See Ming, Smith Freed & Eberhard, Port-
land, Oregon, for defendant-appellee Criminal Information
Services Inc.
Jeffrey I. Hasson, Davenport & Hasson, Portland, Oregon, for
defendant-appellee Western Mercantile Agency Inc.
James R. Evans, Jr. and Spencer Persson, Fulbright & Jawor-
ski, Los Angeles, California; Richard Yarmuth and Lyle A.
Tenpenny, Yarmuth Wilsdon Calfo, Seattle, Washington, for
defendant-appellee Automotive.com Inc.
Michael I. White and P. Arley Harrel, Williams Kastner, Seat-
tle, Washington, for defendant-appelle AMPCO Parking Sys-
tems.
Ronald I. Raether, Jr., Faruki Ireland & Cox, Dayton, Ohio,
for amicus curiae Coalition for Sensible Public Records
Access and The Consumer Data Industry Association.
HOWARD v. CRIMINAL INFORMATION SERVICES 10827
OPINION
CLIFTON, Circuit Judge:
These appeals involve two essentially identical actions filed
in two different states, Oregon and Washington, by different
groups of Plaintiffs, each of which seeks to represent a class.
The actions seek damages on the ground that Plaintiffs’ per-
sonal information was obtained by Defendants in violation of
the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C.
§§ 2721-2725. That statute provides that personal information
from state driver license databases can be obtained, disclosed,
or used only for certain specified purposes. Each of the
Defendants purchased driver record information in bulk so it
would have the information available for its future use. Plain-
tiffs do not complain that the ultimate use of the information
by any of the Defendants was for purposes not permitted
under the DPPA. They argue, however, that the DPPA forbids
bulk purchasing of drivers’ personal information for future
use because obtaining the information for future use is not
itself a permitted purpose under the DPPA. Joining other
courts which have dealt with similar claims, we conclude that
Defendants’ actions were not unlawful under the DPPA and
affirm the dismissal of the actions by the district courts.
I. Background
States collect personal information about individuals who
obtain driver licenses including “name, address, telephone
number, vehicle description, Social Security number, medical
information, and photograph.” Reno v. Condon, 528 U.S. 141,
143 (2000). This information is included in a database con-
taining the personal information of all drivers licensed in the
state. “States, in turn, sell this personal information to individ-
uals and businesses.” Id.
Defendants are companies engaged in a variety of busi-
nesses that utilize the information from driver records in vari-
10828 HOWARD v. CRIMINAL INFORMATION SERVICES
ous ways. For example, Oregonian Publishing is a newspaper
company that uses the information in reporting stories involv-
ing the operation or safety of motor vehicles. Criminal Infor-
mation Services, Inc. is a company that performs background
checks. It uses the information to verify personal information
submitted by the person about whom the background check is
being performed. Automotive.com uses the information to
perform research about motor vehicles. AMPCO is a parking
lot management business that uses the information to check
information provided by its customers and to provide notice
to owners of towed or impounded vehicles. For these compa-
nies it is neither efficient nor cost-effective to request records
individually each time they have a need for the information or
to be limited to getting the information during business hours
when the state agency is open. Instead, they purchase the
entire database from the state and access specific information
when the need arises.
The DPPA enumerates specific purposes for which it is
permissible to obtain, disclose, or use personal information
contained in a motor vehicle record. Plaintiffs allege that pur-
chasing the entire database for future use, which Plaintiffs
refer to as stockpiling, is not a permitted purpose under the
DPPA.1
Both cases were dismissed on the ground that Plaintiffs
failed to state a claim under the DPPA, with both district
courts rejecting Plaintiffs’ argument that acquiring the infor-
mation in bulk and stockpiling it was an improper purpose
under the statute. Plaintiffs appealed the decisions in both
cases. We consolidated the appeals for argument and now
consolidate them for decision.
1
Specifically, they allege, using identical language in the two com-
plaints, that Defendants have obtained the personal information “so that
[they] could save [themselves] time and/or money by not having to go
back to the state[s’] offices each time [they] ‘might’ need addition infor-
mation.”
HOWARD v. CRIMINAL INFORMATION SERVICES 10829
II. Discussion
[1] The DPPA was enacted as an amendment to the Vio-
lent Crime Control and Law Enforcement Act of 1994. It
seeks to curtail the improper sale of personal information
from motor vehicle records while allowing individuals, gov-
ernments, and businesses to access the information if they
have acceptable reasons.
The DPPA has two main parts. First, it enumerates pur-
poses for which personal information from a motor vehicle
record can be disclosed.2
(Text continued on page 10831)
2
18 U.S.C. § 2721(b) provides:
(b) Permissible uses.—Personal information referred to in sub-
section (a) shall be disclosed for use in connection with matters
of motor vehicle or driver safety and theft, motor vehicle emis-
sions, motor vehicle product alterations, recalls, or advisories,
performance monitoring of motor vehicles and dealers by motor
vehicle manufacturers, and removal of non-owner records from
the original owner records of motor vehicle manufacturers to
carry out the purposes of titles I and IV of the Anti Car Theft Act
of 1992, the Automobile Information Disclosure Act (15 U.S.C.
1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and
chapters 301, 305, and 321-331 of title 49, and, subject to subsec-
tion (a)(2), may be disclosed as follows:
(1) For use by any government agency, including any court or
law enforcement agency, in carrying out its functions, or any pri-
vate person or entity acting on behalf of a Federal, State, or local
agency in carrying out its functions.
(2) For use in connection with matters of motor vehicle or driver
safety and theft; motor vehicle emissions; motor vehicle product
alterations, recalls, or advisories; performance monitoring of
motor vehicles, motor vehicle parts and dealers; motor vehicle
market research activities, including survey research; and
removal of non-owner records from the original owner records of
motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate busi-
ness or its agents, employees, or contractors, but only—
10830 HOWARD v. CRIMINAL INFORMATION SERVICES
(A) to verify the accuracy of personal information submitted
by the individual to the business or its agents, employees, or con-
tractors; and
(B) if such information as so submitted is not correct or is no
longer correct, to obtain the correct information, but only for the
purposes of preventing fraud by, pursuing legal remedies against,
or recovering on a debt or security interest against, the individual.
(4) For use in connection with any civil, criminal, administrative,
or arbitral proceeding in any Federal, State, or local court or
agency or before any self-regulatory body, including the service
of process, investigation in anticipation of litigation, and the exe-
cution or enforcement of judgments and orders, or pursuant to an
order of a Federal, State, or local court.
(5) For use in research activities, and for use in producing statisti-
cal reports, so long as the personal information is not published,
redisclosed, or used to contact individuals.
(6) For use by any insurer or insurance support organization, or
by a self-insured entity, or its agents, employees, or contractors,
in connection with claims investigation activities, antifraud activ-
ities, rating or underwriting.
(7) For use in providing notice to the owners of towed or
impounded vehicles.
(8) For use by any licensed private investigative agency or
licensed security service for any purpose permitted under this
subsection.
(9) For use by an employer or its agent or insurer to obtain or ver-
ify information relating to a holder of a commercial driver’s
license that is required under chapter 313 of title 49.
(10) For use in connection with the operation of private toll trans-
portation facilities.
(11) For any other use in response to requests for individual
motor vehicle records if the State has obtained the express con-
sent of the person to whom such personal information pertains.
(12) For bulk distribution for surveys, marketing or solicitations
if the State has obtained the express consent of the person to
whom such personal information pertains.
HOWARD v. CRIMINAL INFORMATION SERVICES 10831
[2] Second, the DPPA creates several enforcement mecha-
nisms. One mechanism is a civil action against any “person
who knowingly obtains, discloses or uses personal informa-
tion, from a motor vehicle record, for a purpose not permitted
[by the DPPA].” 18 U.S.C. § 2724(a).
Section 2724(a) “sets forth the three elements giving rise to
liability, i.e., that a defendant (1) knowingly obtained, dis-
closed or used personal information, (2) from a motor vehicle
record, (3) for a purpose not permitted.” Thomas v. George,
Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A.,
525 F.3d 1107, 1111 (11th Cir. 2008). The burden of proving
these elements is on the plaintiffs. Id. at 1113.
The grant of a motion to dismiss is reviewed de novo.
Cohen v. Stratosphere Corp., 115 F.3d 695, 700 (9th Cir.
1997). We must construe the allegation made in the com-
plaints in Plaintiffs’ favor. Gordon v. City of Oakland, 627
F.3d 1092, 1095 (9th Cir. 2010).
We conclude that Plaintiffs have not stated a claim because
stockpiling information for a permitted use does not constitute
a violation under the DPPA. Plaintiffs’ allegation that Defen-
dants obtained the information for the improper purpose of
stockpiling misconstrues the meaning of “purpose.”
[3] Purpose is defined as “something that one sets before
himself as an object to be attained; an end or aim to be kept
in view.” Webster’s Third New International Dictionary
(13) For use by any requester, if the requester demonstrates it has
obtained the written consent of the individual to whom the infor-
mation pertains.
(14) For any other use specifically authorized under the law of
the State that holds the record, if such use is related to the opera-
tion of a motor vehicle or public safety.
18 U.S.C. § 2721(b).
10832 HOWARD v. CRIMINAL INFORMATION SERVICES
(2002) 1847; see Merriam-Webster’s Collegiate Dictionary,
10th ed. (2002) 947 (“something set up as an object or end to
be attained”); Black’s Law Dictionary 9th ed. (2009) 1356
(“an objective, goal, or end”).
[4] Stockpiling was plainly not Defendants’ purpose for
obtaining the information, as that term is used in the statute.
The object or end to be attained by Defendants in obtaining
the driver record information — the reason they wanted the
information — was not just to have it available. Defendants
obtained the information so that they would be able to use it.
Plaintiffs do not allege that the ultimate uses intended by
Defendants, such as checking the information of customers or
in connection with matters of motor vehicles or driver safety,
were not permitted purposes.
Plaintiffs’ argument confuses Defendants’ purposes for
obtaining the information with Defendants’ reasons for
obtaining the information in bulk form. It is certainly true that
Defendants had one or more reasons for obtaining the infor-
mation in bulk. By purchasing the entire database in bulk
rather than waiting to obtain individual records when they
were needed, Defendants no doubt wanted to make their
access to the information easier when the time came to use it
and probably hoped to get the information at less cost as com-
pared with the expenses of requesting one record at a time.
But that was not, in any real sense, the “purpose” for obtain-
ing the information. Someone who buys toilet paper in a
package of 48 rolls from a warehouse store, for example, ordi-
narily buys it for the same purpose as the person who buys it
one roll at a time. That it might save money or extra trips to
the store to buy in bulk isn’t why the toilet paper is bought in
the first place.
[5] The DPPA is concerned with the use to which the
information will be put. The portion of the statute that lists the
permissible reasons for getting the information, subsection
2721(b), is entitled “Permissible uses.” The list of permissible
HOWARD v. CRIMINAL INFORMATION SERVICES 10833
purposes repeatedly speaks in terms of the “use” to which the
information will be put. See note 2 above. If Congress aimed
to prohibit the sale of a state’s driver record database in bulk,
the statute could have and presumably would have said as
much. Instead, the statute was written in a way that logically
put the focus on the purposes for which the information would
eventually be used — on the “end” sought by the purchaser
— not on the reason for buying it in bulk.
Plaintiffs argue that the DPPA prohibits more than just the
“use” of driver information, noting that a civil action for dam-
ages may be brought against any “person who knowingly
obtains, discloses or uses personal information . . . for a pur-
pose not permitted.” 18 U.S.C. § 2724(a) (emphasis added).
Thus, they contend, we should separately examine the “pur-
pose” Defendants had for “obtaining” the information, sepa-
rate from the ultimate use of the information. But the portion
of the statute that expresses the permissible purposes explic-
itly does so in terms of the “use” of the information. That is
what should be considered in determining whether the acqui-
sition of the information is permitted under the statute.
[6] There is also no problem with Defendants obtaining the
personal information for potential future use, even if they may
never use it. The DPPA does not contain a temporal require-
ment for when the information obtained must be used for the
permitted purpose. Nor is there a requirement that once the
information is obtained for a permitted purpose that it actually
be used at all. The DPPA only requires that Defendants
obtained the information for a permitted purpose. Plaintiffs
have not alleged that Defendants have used the information
for a purpose not permitted, nor have they disputed Defen-
dants’ statements that they only access or use information
about a specific individual when they have a permitted pur-
pose.
Two other circuits have addressed similar claims, the Fifth
and Sixth Circuits, and both have rejected them. See Taylor
10834 HOWARD v. CRIMINAL INFORMATION SERVICES
v. Acxiom Corp., 612 F.3d 325, 340 (5th Cir. 2010), cert.
denied ___ U.S. ___, 131 S.Ct. 908 (2011) (“A person who
buys DMV records in bulk does so for the purpose of making
permissible actual use of information therein under [the
DPPA], even if that person does not actually use every single
item of information therein.”); Roth v. Guzman, ___ F.3d ___,
2011 WL 2306224 at *9-11 (6th Cir. 2011) (citing Taylor).
We agree.
III. Conclusion
[7] We conclude that Plaintiffs have failed to allege that
Defendants had an improper purpose under the DPPA for
obtaining their personal information. The complaints were
properly dismissed for failure to state a claim.
AFFIRMED.