Misguided Judicial Privacy Law Hidden in Defense Spending Bill
A provision in the must-pass NDAA could undermine the rights of journalists and activists.
Earlier this year, as the end of abortion rights loomed, activists picketed the homes of conservative justices. Predictably, this launched a whole debate — about how to balance free speech and privacy, and what forms of protest are acceptable.
(Un)fortunately, Congress has just weighed in on the issue — and only the policy wonks seem to have noticed.
I’m talking about the Daniel Anderl Judicial Security and Privacy Act. This bill has been included in the NDAA, the must-pass end of the year defense spending bill. Intended to protect federal judges from violence, the bill would ban sharing the personal information of judges and their family members. It includes everything from home addresses, to (non-government) places of work, to personal email addresses, and even full birthdays. (You can read the text of the bill here, on page 2487).
As of Thursday night, the NDAA has passed both the House and Senate — and is awaiting a signature from Biden.
Under the Judicial Security and Privacy Act, judges and their immediate family members would be able to send takedown requests to websites that make their info available. After the request goes out, the website has 72 hours to remove the content. The website is required to take down all instances of the info, and must “assist the sender to locate the covered information of the at-risk individual or immediate family member.” In other words: the site needs to actively take down new posts that contain the information.
This is especially worrisome when it comes to journalism. The bill has an exception for content that’s “relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” That should allow reporters and even social media users to publish information about judges if it’s in the public interest. But in practice, this kind of language is dangerously subjective. What counts as “public concern”? And who gets to decide?
Imagine if a credible paper like the New York Times published a story on a judge’s family member — and there was a legitimate reason to include protected personal information. This ought to be a clear example of the law’s exception for newsworthy content. But what happens when people start posting the story to, say, Facebook? (I would have used Twitter as my example if it had any semblance of credibility left).
If the person in question had already asked Facebook to take down info about their workplace, Facebook would be obligated to continue removing that type of content. So when users post the NYT article, Facebook would be under pressure to censor it preemptively.
And that’s not to mention the risk of judges and their family members pushing news outlets to take down stories.
New Yorker writer Jane Mayer raised concerns that this provision could protect judges’ spouses from legitimate scrutiny.
“If it passes, Ginni Thomas’s professional entanglements would effectively be state secrets,” she tweeted, referring to Justice Clarence Thomas’s wife — who supported overturning the 2020 election.
In a later tweet, Mayer said:
This will almost surely pass with carve outs for “media” and “opinion” reporting on matters of “public concern.” But it still adds new layers of secrecy around justices, judges, their spouses, and much more. Sponsors say it won’t stifle the press. Hope they’re right.
But for the folks who share judges’ personal info for other purposes, the law’s much more clear. If a judge asks an activist website to remove their home address or their spouse’s place of work, the website would need to comply — or risk paying damages. The law also has provisions that apply to government agencies and data brokers, potentially cutting off other ways of accessing this kind of information.
The Judicial Security and Privacy Act, which some say violates the First Amendment, should have been the subject of public debate. The issues involved are difficult ones. How should we balance free speech and privacy, for example? Or what should we do to protect vulnerable people from doxxing? But by sneaking it into must-pass legislation, Congress has sidestepped that kind of conversation. By the time Biden signs the NDAA, most Americans won’t know what this law is — or the risks it poses to free speech.
Other stuff:
Lawyer (and Section 230 enthusiast) Jess Miers wrote a Twitter thread about some of the problems with the Judicial Security and Privacy Act. She gets into the Section 230 concerns, and compares the law’s takedown system to the DMCA’s (spoiler alert: in this respect the DMCA is actually better). Mike Masnick wrote an article about the bill too.
KOSA, another problematic internet bill, didn’t end up in the NDAA like many had feared. But it still has a chance of passing this year. Evan Greer wrote a Vice article about the ways the bill could harm LGBTQ people.
That’s it for this newsletter. Check back in the future for more soul-crushing news about internet regulation.