Last Thursday, September 10th, Judge Anthony Trenga of the U.S. District Court for the Eastern District of Virginia heard arguments on whether his temporary restraining order (TRO) barring the bulk transfer of commercial driver’s license records from the American Association of Motor Vehicle Administrators (AAMVA) to the U.S. Deopartment of Transportation (DOT) should be converted into a preliminary injunction.

If granted by the court, a preliminary injunction would remain in effect until a final ruling in the lawsuit brought by state governments challenging the data demand by the Feds.

Judge Trenga took the motion for a preliminary injunction under advisement without issuing a decision.

In response to the motion for a preliminary injunction, DOT cooked up an array of patently pretextual and impermissibly ex post facto new excuses for why it needs a dump of all the records of commercial driver’s licenses in AAMVA’s SPEXS database.

DOT also made a new threat to have its Office of Inspector General demand the data, in bulk, without a warrant or probable cause, for investigation of unspecified possible crimes.

It seems unlikely that either the briefs or the oral argument last Thursday have given Judge Trenga any reason to depart from the reasoning in his initial decision granting a TRO.

In that ruling, Judge Trenga found multiple independent ways in which the demand for this data is illegal. He also found that the claimed basis for the demand is a pretext to obtain data that would actually be used (illegally) for immigration enforcement:

The FMCSA has also conceded it has not demanded the MPRs [Master Pointer Records] solely to use those records itself, but also to share them with DHS for “immigration enforcement purpose[s].”… But the relied upon exception under the DPP A that authorizes disclosure of protected data to effectuate FMCSA’s own statutory mandate does not authorize FMCSA to simply pass that data onto another agency….

[W]hen repeatedly pressed at the hearing on this point, the Federal Defendants were unable to explain how the data would in fact assist them in performing their statutory functions, or point to anything that they cannot already do without this data…

Federal Defendants have failed to dispel the compelling inference that they seek these 17 million files in large part, if not primarily, for immigration enforcement, which is not part of [FMCSA]’s statutory mandate….

[B]ecause the Data Demand is unlawful, the public interest inherently favors issuing an injunction….

The issuance of an injunction is also in the public interest given the harm the termination of federal funding to AAMVA would cause since CDLIS would effectively cease its operations and impair Plaintiff States’ ability to issue and renew CDLs and compromise the safe operation of commercial motor vehicles…. Furthermore, as the AAMVA contends, the “CDLIS … is interconnected with all forms of driver licensing” and therefore any shutdown “could disrupt, or even stop, the issuance and renewal of any driver license in the United States.”

Meanwhile, the American Federation of Teachers (AFT) has moved to intervene in the case on behalf of AFT members including school bus drivers whose commercial driver’s license data is included in the Federal data demand.

AFT says that states — like AAMVA — have their own interests, including retaining Federal funding, and can’t be relied on to represent the interests of individuals whose data is at risk. AFT’s motion to join the case against both DOT and AAMVA is set for a hearing this Wednesday, September 16th.

While Judge Trenga has ordered AAMVA, for now, not to hand over records of all commercial driver’s licenses to DOT, the outcome of the lawsuit remain uncertain.

No one state such as California can control AAMVA’s decisions. The head of each state’s driver licensing agency has one vote on AAMVA’s board of directors, so states that want to hand over AAMVA’s records for immigration enforcement can outvote those that don’t.

The ongoing litigation should teach a lesson to California and other states that once they hand over data to AAMVA, they can’t control to whom or for what purposes it is passed on voluntarily or involuntarily by AAMVA to Federal agencies or other third parties.

The same lesson applies to non-commercial as to commercial driver’s licenses, both of which are stored by AAMVA in the same database. In  comments to Wendy Fry and Khari Johnson of Cal Matters, a spokesperson for California Governor Gavin Newsom falsely claimed that AAMVA’s databases of commercial and non-commercial driver’s license records “are separate systems”. In fact, CDLIS records for commercial driver’s licenses and S2S records for non-commercial licenses are both stored by AAMVA in the same SPEXS database.

Californians should have second thoughts about the upload of non-commercial driver’s license records to SPEXS, planned for 2027 and authorized by a law rushed through the state legislature by Governor Newsom while Federal demands for SPEXS data were already pending.