BMV policy needed to prevent identity theft

The inconvenience of a few Hoosiers outweighs the very real threat of identity theft, so the trial court was correct in denying a preliminary injunction against the Bureau of Motor Vehicle's verification of records using Social Security Administration data, the Indiana Court of Appeals ruled today. Judge Patricia Riley dissented, believing the BMV needs to have legislation amended before it can institute its policy.

Although the class of affected plaintiffs showed the BMV's challenged policy violates constitutional guarantees of due process, a preliminary injunction wouldn't be in the public's interest, wrote Judge Cale Bradford for the majority in the interlocutory appeal of Lyn Leone, et al. v. Commissioner, Indiana Bureau of Motor Vehicles, et al., No. 49A02-0804-CV-377. The plaintiffs – a class of people who received letters from the BMV notifying them that their information on record didn't match that from the Social Security Administration – sought a preliminary injunction against enforcement of the policy of revoking licenses or ID cards if the BMV records aren't updated.

While the class appeal of the denial of its motion for a preliminary injunction was pending, the BMV filed Indiana Administrative Code Title 140, Rule 7-1.1-2, which appears to adopt the policy of verifying records against data from the SSA.

The majority determined the BMV's new policy doesn't violate Indiana law, and there's no authority that explains why requiring a person to update information with the SSA or BMV violates the law, wrote Judge Bradford. The public interest in preventing identity theft requires that one must "bear the consequences, including the inconveniences, of changing one's name."

The new policy does violate due process because the BMV acted without ascertainable standards for current license and ID holders. Nowhere in the first two letters is the concept of "updating" information with the BMV explained, wrote Judge Bradford, and the notices are inconsistent. In addition, the majority believed the rule promulgated by the BMV after the litigation began only serves to increase the confusion. Although the BMV can require a match between its and the SSA's information, it failed to give the class members fair notice regarding this requirement, he wrote.

The motion for preliminary injunction failed because it would clearly disserve the public interest in preventing and detecting identity theft. Suspending the program would have the effect of restoring a well-known avenue for fraud and identity theft.

"We simply cannot agree that the inconvenience of a few Hoosiers (which is really all the record before us shows) outweighs the very real threat that identity theft poses to all of us," he wrote. "We do not doubt that the loss of a driver's license or identification card could be highly inconvenient, but we imagine that, as a general rule, being the victim of identity theft would be far worse."

Judge Patricia Riley in her dissent wrote the majority ignored the "factual history" of the plaintiffs that are being "hassled" by the BMV's policy shift. The three named plaintiffs of the class in this case had used the names the BMV had on file for numerous years and in different records, such as on the Roll of Attorneys or to pay bills. They all had valid drivers' licenses at the point the BMV sent them letters threatening to revoke them because of discrepancies. According to I.C. Sections 9-24-11-5(a)(1) and 9-24-16-3(b)(1), the plaintiffs provided their "full legal names" to the BMV.

"If the BMV now thinks that in the day and age of identity theft that applicants for drivers licenses or identification cards should provide their name as it appears in the SSA database, then the BMV has the opportunity to approach our legislature and seek an amendment to Indiana Code Sections 9-24-11-5(a)(1) and 9-24-16-20 3(b)(1)," she wrote.