Lead Opinion
This аppeal requires us to decide two issues: first, whether the term “personal
I. BACKGROUND
Kimberly Hastie served as the License Commissioner of Mobile County. The License Commission issues driver’s licenses and automobile titles and maintains motor vehicle registrations for residents of Mobile County. The License Commission is “a collection and disbursal agency” for taxes and fees related to motor vehicles. The License Commission maintains a website, which requires users to provide their email addresses for all online transactions. The License Commission also instructs tellers at its offices to obtain email addresses from licensed drivers and motor vehicle owners. Both the website and the policy manual of the License Commission include a statement about the Driver’s Privacy Protection Act.
Hastie asked Brad Bray, the manager of information technology, to send emails to addresses in the License Commission’s database communicating Hastie’s endorsement of Sandy Stimpson for mayor. Bray refused because “everybody would know that we just used our E-mail database to send out this list.” Instead, he downloaded a list of email addresses onto a flash drive and delivered it to Hastie’s secretary. Hastie gave the list of email addresses to the Stimpson campaign, and the Stimpson campaign sеnt out Hastie’s endorsement to those email addresses. When later questioned by the press, Hastie falsely denied that she had released a list of email addresses.
In 2015, a federal grand jury returned a superseding indictment against Hastie on 18 counts. Count 17 charged Hastie with violating the Driver’s Privacy Protection Act by disclosing the email addresses collected by the License Commission to a political consulting firm to tout Hastie’s support for a mayoral candidate. At trial, the district court instructed the jury as follows that the government had to prove beyond a reasonable doubt the following elements for Count 17, including that Hastie worked for a state department of motor vehicles:
The defendant is an officer, employee, or contractor of a state department of motor vehicles; the defendant knowingly disclosed or otherwise made availаble to any person or entity personal information about an individual; the personal information was obtained by the Department of Motor Vehicles in connection with a motor vehicle record; and the personal information was disclosed for any reason other than a reason where the release of such information is specifically permitted.
The term “personal information” means information that identifies an individual, including an individual’s E-mail address, photographs, Social Security number, driver’s license, name, address, telephone number, medical or disability information. Personal information does not include information on vehicular accidents, driving violations, and a driver’s status.
Id. at 1596:24-1597:5 (emphasis added).
Before the jury returned its verdict, Hastie filed an amended motion for judgment of acquittal. She argued that the statutory definition of “personal information” did not include email addresses and that “the Government has 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.’ ” The district court denied the motion.
The jury found Hastie guilty of violating the Driver’s Privacy Protection Act and not guilty on all other counts. Hastie filed a renewed motion for judgment of acquittal or, in the alternative, a new trial. The district court denied the motion and sentenced Hastie to pay a fine of $5,000.
II. STANDARDS OF REVIEW
“We review de novo whether there is sufficient evidence in the record to support a jury’s verdict in a criminal trial, viewing the evidence in the light most favorable to the government, and drawing all reasonable factual inferences in favor of the jury’s verdict.” United States v. Jimi-nez,
III. DISCUSSION
The Driver’s Privacy Protection Act prohibits the disclosure of personal information obtained by a state department of motor vehicles except for certain permissible uses, none of which are relevant to this appeal:
(a) A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. § 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; ...
18 U.S.C. § 2721(a). The Act defines personal information as “information that identifies an individual.” Id. § 2725(3).
We divide our discussion in two parts. First, we explain that sufficient evidence supported the jury’s factual "determination that Hastie was an officer or employee of a State department of motor vehicles. Second, we еxplain that the definition of
A. The Jury Could Find that the License Commission Is a “State Department of Motor Vehicles. ”
The government presented sufficient evidence to support the jury’s verdict that Hastie was an “officer, employee, or contractor” of “[a] State department of motor vehicles” under the Act. 18 U.S.C. § 2721(a). As the district court acknowledged, Hastie’s status as an officer or employee of a state department of motor vehicles was “an element of the offense” that needed to be proved to the jury as a “question of fact.” The parties do not contest that Hastie served as the Licensе Commissioner for the Mobile County License Commission. But Hastie argues that the government failed to present enough evidence that the Mobile County License Commission “is in fact a ‘State department of motor vehicles’ ” to sustain a conviction. We disagree..
Specific testimony addressed the relationship between the Mobile County License Commission and the State of Alabama. For example, the jury heard evidence that some of the responsibilities of the License Commission as “a collection and disbursal agency” were defined by statute. The jury also heard testimony that the State oversaw aspects of the License Commission; for example, the state revenue commissioner sometimes played a management role, and the License Commission was subject to state ethics training. And the jury could have found that the Commission determined that it was subject to the Act because it included a statement about the Act on its website and in its policy manual.
The jury could have found that the Mobile County License Commission acts for the State when it performs the traditional tasks associated with a state department of motor vehicles. “[T]he law permits jurors to ‘apply their common knowledge, observations and experiences in the affairs of life.’ ” United States v. Gainey,
B. An Individual’s Email Address is “Personal Information. ”
We begin “where courts should always begin the process of legislative interpretation ... which is with the words of the statutory provision.” Harris v. Garner,
Email addresses fall within the ordinary meaning of “information that identifies an individual.” They can “prove” or “establish the identity of’ an individual. Identify, Webster’s New International Dictionary 1236 (2d ed. 1961). Email addresses often expressly include the account holder’s name, affiliated organization, or other identifying information. With a simple search engine or a service like Spokeo, an email address can also be used to find personal information such as a corresponding username or physical address. The statute does not exclude “monikers created solely for purposes of electronic communication,” as Hastie argues, so long as the moniker identifies an individual.
This interpretation is strengthened by the material similarity between email addresses and the examples in the statute. Because “[associated words bear on one another’s meaning,” Scalia & Garner, supra, at 195, the examples give meaning to the term “personal information.” Email addresses are much like an online version of a physical address or a tеlephone number: they serve both as a way to find an individual in an online space and as a way to contact a person. Hastie argues that our interpretation is flawed because we “assume[] a person has an e-mail address,” but this argument is backwards. We ask whether an email address identifies an individual, not whether an individual has an email address. And the examples listed in the statute reveal that “information that identifies an individual” does not require
A recent Seventh Circuit opinion supports our interpretation of “personal information.” In a civil action under the Act, the Seventh Circuit held that the definition of “personal information” in the Act included birth date, height, weight, hair color, and eye color. Dahlstrom v. Sun-Times Media, LLC,
The list of examples is not exclusive because it is preceded by the word “including.” Hastie argues that the canon of ex-pressio unius applies to the list of examples in the definition and that we cannot add anything to the statutory definition that Congress has not authorized. But “the word include does not ordinarily introduce an exhaustive list.” Scalia & Garner, supra, at 132, 226. The Supreme Court has repeatedly held that the word “including” in a statute signifies enlargement, not limitation. See,, e.g., Chickasaw Nation v. United States,
If we limited the definition to only the enumerated examples, we would render the express exclusions superfluous. A statute “should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn,
The word “including” also defeats Hast-ie’s argument that because Congress specifically included email addresses as an example of “personal information” in the Children’s Online Privacy Protection Act, 15 U.S.C. § 6501(8), Congress intended to exclude it from the Driver’s Privacy Protection Act. Although such an absence is persuasive in comparable exclusive definitions, see, e.g., Price v. Time, Inc.,
Nor does the rule of lenity require Hastie’s acquittal. “Ambiguity in a statute defining a crime or imposing a penalty should be resolved in thе defendant’s favor,” but “[n]aturally, the rule of lenity has no application when the statute is clear.” Scalia & Garner, supra, at 296, 301. “The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States,
Although Hastie argues that the rule of lenity should apply because she did not know email addresses were covered by the Act, “ignorance of the law is typically no defense to criminal prosecution,” McFadden v. United States, — U.S. —,
The statute is also not “void for vagueness.” The definition of “personal information” is not so vague that it fails to provide fair notice nor does it require state officials to “guess at its contours.” Cf. Gentile v. State Bar of Nevada,
Finally, because the district court accurately stated the law, it did not err in instructing the jury that “[t]he term ‘personal information’ means information that identifies an individual, including an individual’s email address.” Although perhaps not “all email addresses are ‘personal information,’” see Dissenting Op. at 1311— 12, the district court accurately stated the law when it said that personal information includes an individual’s email address, in the same way that it includes an individual’s telephone number or physical address. Hastie argues that “[minimally,” the jury should have been allowed to determine whether “personal information” includes email addresses “as a factual question.” But the definition of “personal informa
The dissent correctly states that a district court cannot direct a verdict on an element of the offense, Dissenting Op. at 1308, but the dissent misapprehends the distinction between an instruction that defines an element and one that directs a verdict on that element. In United States v. Goetz,
The district court would have erred if it had instructed the jury that the emails provided by Ms. Hastie constitute “personal information,” but the district court did not do so. The district court instead provided the jury a definition at a higher level of generality when it explained that “ ‘personal information’ means information that identifies an individual, including an individual’s E-mail address.” Trial Tr. Day 7, 1596:24-1597:5, June 3, 2015. The dissent asserts that these two instructions are “qualitatively the same,” Dissenting Op. at 1311, but our precedents maintain that they are materially and legally different, see Grote,
Contrary to the dissent’s assertion, Dissenting Op. at 1311-12, our ruling also does not conflict with the decision to allow the jury to decide whether Hastie was an “officer” or “employee” of a “State department of motor vehicles,” 18 U.S.C. § 2721(a). In its discretion, the district court perhaps could have definеd that statutory language to include county officials who act on behalf of the state, but the district court could not have determined that Hastie was such an officer without running afoul of the Sixth Amendment. Although there may arise situations where a purported “definition” is incorrect or so specific that it essentially directs the verdict, that problem is not present here. Because the generic definition of “personal information” given by the district court accurately stated the law, the district court did not err in its instructions to the jury.
IV. CONCLUSION
We AFFIRM Hastie’s judgment of conviction.
Concurrence Opinion
concurring in part and dissenting in part.
My only disagreement with the majority opinion concerns the Sixth Amendment claim. But that disagreement is a significant one.
The government accused Kimberly Smith Hastie of disclosing the “personal information” of Mobile County residents in violation of the Driver’s Privacy Protection Act, 18 U.S.C. § 2721(a)(1), by providing their email addresses to the political campaign of a candidate she wanted to endorse. Because email addresses are not included in the DPPA’s definition of “personal information,” see 18 U.S.C. § 2725(3) (defining “personal information” as “information that identifies an individual,” and providing various examples), Ms. 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.” See D.E. 294 at 136-37. The district court refused, and instead told the jury that, as a matter of law, the term “personal information” includes email addresses. See D.E. 295 at 129-30.
That, in my view, was reversible constitutional error. It is undisputed that the disclosure оf “personal information” is an element of a DPPA offense, and the Sixth Amendment and the Due Process Clause require that “each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, — U.S. —,
I
The majority holds that the district court did not err in instructing the jury
The only case affirmatively cited by the majority, United States v. Wilson,
II
A criminal conviction must “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin,
The district court here, through its jury instructions, altered Congress’ definition under § 2725(3) and prevented the jury from deciding a critical issue: whether the email addresses provided by Ms. Hastie constitute “personal information” under the DPPA. And that, I believe, violated the Sixth Amendment. See, e.g., Mims v. United States,
A
Whether email addresses are “personal information” may properly be characterized as a mixed question of law and fact. But juries in criminal cases also get to decide mixed questions when they concern an element of the offense at issue. See Gaudin,
If the government presents evidence X at trial to establish an element of the offense, and the defendant on appeal argues that evidence X is insufficient to support his conviction, a reviewing court has to determine whether evidence X satisfies the statutory element, and that analysis may entail interpretation of a term in the statute. That is the sort of sufficiency analysis we conducted in Wilson,
One of our cases, United States v. Goetz,
Although we agreed with the district court that the documents submitted by the defendants were not “returns” as a matter of law (so that the defendants could be properly convicted under § 7203 if the jury credited the government’s evidence), we held that the jury should have been allowed to decide, in the first instance, whether the forms the defendants submitted were “returns”:
The [district] court correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not ‘returns’ within the meaning of [§ ] 7203. The court, however, went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns. In doing so, the lower court applied facts to the law, thus invading the province of the jury. In essence, the court directed a verdict as to one of the three elements of the alleged offense: failure to file a return.
Id. at 707-08. See also id. at 709-10 (“[T]he [district court] applied the facts to the law, leaving nothing for the jury to determine.... We conclude that there was reversible error in directing the jury that the documents filed by the defendants were not returns.”).
Another of our cases, Roe v. United States,
Thus we determine that, as a matter of law, the evidence of these transactions, if credited, would constitute the sale or delivery of an “investment contract,” hence a “security” thereby requiring registration with the SEC. But the if in “if credited” is a big one. By its very nature, it is the peculiar facts of the setting which turns the offer from a mere sale of property into a sale of a security. That means that the trier of fact, here a jury, must determine the issue.... [N]o fact, not even an undisputed fact, may be detеrmined by the [jjudge. The plea of not guilty puts all in .issue, even the most patent truths. In our federal system, the [t]rial [cjourt may never instruct a verdict either in whole or in part.
Id. at 440.
In my view, Goetz and Roe require that we grant Ms. Hastie a new trial. Telling a jury that all email addresses categorically constitute “personal information” (what happened here) is no different than telling a jury that certain documents filed with the IRS do not constitute “returns” (what happened in Goetz) or that certain oil leases constitute “investment contracts” and, therefore, “securities” (what happened in Roe). See also Carothers v. United States,
B
The majority says that Ms. Hastie’s situation is distinguishable from Goetz and
The district court not only gave the jury a generic definition of “personal information” — “information that identifies an individual,” D.E. 295 at 129 — but it also told the jury in no uncertain terms that email addresses — the very things Ms. Hastie was accused of distributing — сategorically constituted “personal information.” Because we “generally presume that jurors follow their instructions,” Penry v. Johnson,
“What [a court] is forbidden to do directly, [it] may not do by indirection.” Horning v. District of Columbia,
Notably, the district court here let the jury decide whether Ms. Hastie — the Mobile County License Commissioner — was an “officer” or “employee” of a “State department of motor vehicles” under § 2721(a)(1). See D.E. 295 at 129. If the jury was allowed to decide that issue, which went to a different element of the DPPA offense, how could it be precluded from deciding whether email addresses constitute “personal information” under § 2725(3)? I cannot think of a good reason, much less a valid constitutional one.
III
A criminal conviction for a violation of the DPPA is punishable only by a fine, see
As I read Sixth Amendment precedent, the district court violated Ms. Hastie’s rights by instructing the jury, as a matter of law, that the “personal information” element of a § 2721(a)(1) offense categorically includes email addresses. I would grant Ms. Hastie a new trial, and therefore respectfully dissent from the majority’s affir-mance of her DPPA conviction.
Notes
. For similar cases from other circuits, see, e.g., United States v. White Horse,
. In a way, the district court's instruction acted as a mandatory inference, which is also constitutionally problematic. See, e.g., United States v. U.S. Gypsum Co.,
. I recognize that the constitutional violation here is subject to harmless-error review, but the government has the burden of demonstrating harmlessness beyond a reasonable doubt, and it has not even tried to make such a showing. See generally Neder v. United States,