The Hidden Subtitle of the NDAA That Will Ban Basic Facts About Judges Online
No judge should have to fear for their lives as they defend the rule of law. But that doesn’t mean they can infringe on other civil liberties to protect their information.
The First Amendment prohibits the government from censoring truthful information, especially when it's about government officials. Yet tucked into the National Defense Authorization Act (NDAA)'s 4,400-plus pages is a subtitle which does just that. Title LIX, Subtitle D of the NDAA, or the Daniel Anderl Judicial Security and Privacy Act (JSPA), bans a broad range of basic facts about federal judges from being posted on the internet. It then deputizes social media companies to ensure those facts remain offline.
The JSPA was named after U.S. District Judge Esther Salas's 20-year-old son who was tragically killed at the judge's New Jersey home. In an effort to prevent similar tragedies in the future, the JSPA bans all Americans from posting biographical information about judges and their families online. But far from just highly sensitive information, like Social Security numbers and home addresses, the JSPA prohibits publishing judges' birth dates, their relatives' employers, and any current or future schools attended by their family members. While its aim to protect federal judges from harm is laudable, the breadth of the JSPA's coverage will have absurd consequences. Once the law takes effect, tweeting "Happy 68th Birthday!" to Chief Justice Roberts will be illegal, potentially subjecting users to a significant financial penalty.
The JSPA's fact ban works in two main ways. First, judges and their immediate family members can send users or online services requests to take down posts of prohibited information. This information does not need to be about the judge, or even foreseeably related to the judge's security, to be the subject of a takedown request. Under the JSPA, a judge's mother may send a takedown request to censor the birthdate of her brother (the judge's uncle), and a judge's daughter may censor information about the law school her son goes to (the judge's grandson). After receiving a takedown request, the user or online service has 72 hours to remove the banned content.
Second, online services have an implied duty to monitor for content similar to the content they have previously been asked to remove on any website or subsidiary website they own. Any online service which does not fully comply with the JSPA's requirements may be sued for injunctive relief and money damages.
No judge should have to fear for their lives as they defend the rule of law. Yet the JSPA will give the federal judiciary and their extended families power to infringe those civil liberties themselves in several ways. The Supreme Court established in Miami Herald v. Tornillo (1974) that private companies have a First Amendment right to choose the third party content they host. This means the government is barred from forcing private companies to remove lawful third-party material—like facts about judges their users post—or forcing them to monitor their own websites for content the government disfavors.
Further, as Legal Scholar Thomas Berry, research fellow at the Cato Institute, has explained, the Supreme Court has repeatedly found that laws prohibiting the publication of truthful personal information violate the First Amendment. In Smith v. Daily Mail (1979), the Court explained that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." Likewise, in Florida Star v. B.J.F. (1989), the Court held that punishments for publishing lawfully-obtained, truthful information may be imposed "only when narrowly tailored to a state interest of the highest order." Most recently in Bartnicki v. Vopper (2001), the Court held that the First Amendment protects a radio station airing an illegally intercepted cell phone call between public figures. This is because the call was a matter of public concern, and "one of the costs associated with participation in public affairs is an attendant loss of privacy." The truthful, personal information the JSPA targets should be treated no differently.
The First Amendment's robust protections for truthful speech are an essential check on government accountability. The JSPA hobbles the public's oversight of public officials by limiting access to the information we need to hold them accountable. For example, The Wall Street Journal published a report last year revealing dozens of judicial conflicts of interest which were identified after conducting an investigation of stock held by judges and their families. Under the JSPA's requirements, users may no longer be allowed to publish the information necessary for many conflict of interest investigations.
While the JSPA does provide an exception for information that is displayed "as part of a news story, commentary, editorial, or other speech on a matter of public concern," this exception does not go far enough. Initial publication of some information banned under the JSPA is often necessary to determine whether it is a matter of public concern or not. Other information, like Justices' spouses' employers, is arguably a matter of public concern because of the potential for conflicts of interest. For these reasons, fifteen civil society groups recently sent an open letter to the Senate explaining why the JSPA will ensure "that federal judges who have conflicts of interest will remain undiscovered."
The judiciary exists, in significant part, to bar legislators from infringing on Americans' civil liberties. Yet the JSPA will ironically give the federal judiciary and their extended families power to directly infringe those civil liberties. There may be a way to balance freedom of speech with reasonable concerns for judicial security. Yet deputizing online services to ensure certain truthful, biographical facts do not appear online fails to balance the bill's aims with the public interest and freedom of speech.