On November 20th, 2020, New Jersey Governor Phil Murphy signed “Daniel’s Law” to much praise within the government and the media. Named after the late Daniel Anderl, the son of U.S. District Court Judge Esther Salas, who was tragically murdered by a self-proclaimed “anti-feminist attorney” who used the internet to find details on the family online, this law contains several provisions meant to protect the personal information of judges, attorneys, law enforcement, and their families on the web.
This bill’s internet-facing nature and apparent importance, as attacks on public officials such as judges have increased in the past few years, leaves it on the cutting-edge of privacy protections in the United States, which might allow it to become very influential. However, whatever influence this law may have, and its effects on the general state of privacy in the United States, is still up for contention. In this blog, I mean to address those contentions, laying out how this law might serve to be a good first step in our efforts to increase privacy, but--primarily--outlining how this law might lead to unequal privacy outcomes and exploitation, especially given the inclusion of law enforcement in its clauses.
To sum up the potential and dangers of this law; on the one hand, if, in response to this law, there is an expansion of privacy laws for the United States in general, as well as systemic, deep reforms to policing and police accountability in the United States, this will have a net positive effect on the privacy and safety of the United States public. On the other hand, I fear that if this law is left alone—without that two-fold change in how we approach these issues—we would have the worst of both worlds, segmented and unequal privacy policies for certain communities and a policing system where grassroots protest efforts to enforce accountability become severely debilitated. Ironically, this would only further detach the police from the communities they are supposed to serve, reducing trust while at the same time not providing any equivalent trade-off regarding privacy.
I severely worry about the latter case occurring because there has been little to no discussion or debate on part of the media or government regarding these issues. In fact, if one were to learn about this issue from the media, you probably would not know that this law affected law enforcement at all. CBS New York’s report on the passage of this law does not even mention police, instead only mentioning “judges and prosecutors,” and many other reports on this law bury this fact within the text of the reports themselves, and only mention “judges and prosecutors” being impacted in the headlines. The Hill’s blog serves as a prime example of this sort of reporting, only mentioning law enforcement once in the entire article, and only then when it quotes from the law directly.
These articles take far greater care in discussing the specifics of the Daniel Anderl murder and the continuing threat of violence against judges and prosecutors than any of the broader, and more controversial, issues of privacy and policing. The latter of which has taken on many new developments since the George Floyd murder. Whether or not these redactions were intentional on part of the media is unclear, but they do conform to a common pattern regarding legislation where a specifically tragic event is used to smuggle in potentially controversial policies with little pushback. This one is especially complicated however, because— broadly—parts of this legislation seem laudable and well-deserved, it is attempting to increase privacy, and during a particularly scary time for many public officials, but we should not be ignorant of what we have to lose if this legislation is not responded to appropriately.
Without an appropriate response, efforts to inform and pressure communities into
instituting changes in policing would be greatly diminished. Though various formal movements to reform policing are attempting to find their place, such efforts still remain very dispersed and localized, and still are very much in doubt, and. In the meantime, grassroots efforts that take the response into the communities of police officers will be greatly diminished if this law remains as is. The ability to set up protests at the homes of police officers would be curtailed as this law would prevent the posting of addresses online by making it a criminal offense to post them “knowingly, with purpose to expose another to harassment or risk of harm to life or property, or in reckless disregard of the probability of such exposure,” essentially, at precisely the time it would be the most fruitful to protest officers who committed misconduct.
These sorts of home-protests might seem uncomfortable—and even potentially dangerous—to many, but the discomforting nature of protest is often the point. Systemic police violence is far more than “uncomfortable,” it is deadly, traumatic, and has deep roots in racist systems which have been perpetuated for centuries. Black residential communities were targeted legally for decades through realty practices which stifled investment and ensured segregation, this cratered their value and--through poverty, corruption, and underinvestment--led to the gutted communities we see now. This process served to justify the over-policing of black communities which, on top of leading to the startlingly high rate of police brutality in these areas, also feeds into a criminal justice system which punishes and incarcerates black men at a disarmingly disproportionate rate. Given these experiences, symbolically taking the “discomfort” black communities have suffered to the homes of police officers can be justified.
Furthermore, such protests illuminate the fact that despite all appearances, police officers are first and foremost public officials that can be held liable by the public because they are members of the community. This point is not often reiterated enough, as it appears that the police often enjoy special privileges legally when they commit misconduct. To protest at their homes brings them back down to earth, it reveals that—regardless of any institutional barriers which inherently protect the police—a simple protest can lay bare any of their insecurities, as the well-reported, overdramatic police response to the protests at Derek Chauvin’s house after George Floyd’s death reveal. If Daniel’s Law expands to other states, such valuable spectacles might not be possible.
Irrespective of any personal view on the efficacy and ethicalness of such protests, other, more indirect, forms of protest will be negatively affected as well. Another clause in Daniel’s Law allows public officials to request that businesses, associations, and individuals take down personal information pertaining to them or their families within 72 hours of their request. From this, attempts at boycotting associations and businesses which involve law enforcement that commit misconduct will be greatly hindered, as there may not be any information on them.
Additionally, it will be very easy for an officer who committed misconduct to exploit this clause, as the requirements for such a request are very low, simply requiring that the request “be made in writing, addressed to the person, business, or association that disclosed the information and...be made by the law enforcement officer…or by the employer of the law enforcement officer…with the consent of that individual.” This very low bar for removal, combined with this law not establishing any sort of review mechanism for such requests, would help police officers shield themselves from public pushback at, again, precisely the time they would deserve it the most. Beyond anything, this might be the main danger from this law, most of the time, it will only shield bad public actors from boycott and protest when they deserve it the most— when they seem to actively harm the communities they are supposed to protect.
To put this law into perspective, legal precedence around internet privacy is generally far more developed in the European Union and shows both the potential of privacy law in the United states and the relative crudeness of Daniel’s Law. Article 17 of the EU’s General Data Protection
Regulation (GDPR) or the “right to be forgotten,” shows that law regarding internet privacy can be inclusive towards everyone—as anybody can request that their information be deleted—and have protocols that ensure that exceptions can be made to privacy if the public interest is at stake. In many ways, the “right to be forgotten” is the inverse of Daniel’s Law, which exclusively includes professions that generally only operate through the public.
Despite my grievances, this law will be a pivotal turning point in internet privacy law in the United States either way it goes. It acknowledges that the sharing information online—once thought tantamount to the ethos of the web—can be a dangerous thing, as seen by the
People's Life Fund
Adobe Higher Education Grant
Prevention at the Intersections