Candace D. Berg


This Note argues that the recent judicial interpretations of the DPPA by the Supreme Court and the Seventh Circuit have improperly limited the scope of permissible uses. The imposition of reasonableness limitations on disclosure, and the judicial analysis of disclosure to determine the exclusive predominant purpose, were novel judicial interpretations of a longstanding and established statute. Courts’ narrow interpretations of the permissible uses of the DPPA are contrary to the text of the statute and do not advance the statute’s central goals. The courts’ approaches are also likely to have significant practical effect contrary to general policy aims. Such changes are better considered by Congress than in the courts.

Part I of this Note details the origins of the DPPA and identifies the congressional intent underlying the text of the statute. Part II provides a brief history of the constitutional challenges to the DPPA and notes the past treatment of the statute’s permissible uses in various circuits. Parts III and IV give a detailed account of two recent court cases that have imposed new limits on permissible uses of personal information. Part V argues against these interpretations and explores their likely practical implications. The argument highlights the plain language of the statute and its relationship with the Act’s legislative history and purpose, while remarking on the implications of civil liability, the role of the rule of lenity, and the need to ensure proper notice of violations falling under the statute. The Note concludes that if new constraints are to be placed onto the scope of permissible uses under the DPPA, the limitations should arise from congressional action and should not be imposed through judicial usurpation of the lawmaking role.


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