Judge Questions Federal Preemption Claims in NJ Daniel's Law Case
CAMDEN, N.J. -- A federal judge raised doubts Monday that the Communications Decency Act gives data brokers immunity from New Jersey’s Daniel’s Law. In an oral argument at the U.S. District Court for New Jersey, Judge Harvey Bartle heard preemption arguments from various data brokers sued by Atlas Data Privacy under the 2020 state law, which is aimed at protecting the personal information of judicial and law enforcement officers, child protective investigators and certain family members.
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Daniel’s Law allows covered individuals to request that data brokers delete their information. The measure was amended in 2023 to allow third parties to bring suits on behalf of covered persons, which some privacy lawyers argue has led to “abuse” of the statute (see 2504040031).
The district court judge denied other motions to dismiss the consolidated case (1:24-cv-04037) in June (see 2506300065). Previously, the New Jersey Supreme Court rejected a journalist’s First Amendment challenge to Daniel’s Law (see 2506180038).
At Monday’s argument, lawyers for the defendant data brokers urged the court to dismiss the Atlas lawsuits because they said they're preempted by federal laws, including the CDA’s Section 230, the Fair Credit Reporting Act (FCRA), the National Voter Registration Act (NVRA) and the U.S. Constitution. The defendants include Smarty, Innovis, We Inform, Infomatics, The People Searchers and Restoration of America.
Judge Bartle questioned data brokers’ argument that Section 230 protects their disclosure of the contact information of individuals who requested deletion under Daniel’s Law. He asked if there isn’t a “significant difference” between a website that has content posted by third-party users and the situation here, where a data broker obtains information itself and then posts it. Bartle said he understands the argument that a website isn’t liable for what its users post. But if, for example, a newspaper collected information about someone on its own and then labeled that person a murderer, the judge said the paper could be subject to a defamation suit.
But Robert Szyba, a Seyfarth lawyer representing some of the defendants, said his clients don’t exercise editorial functions when they publish phone numbers or street addresses. Data brokers don’t make up addresses or numbers, he argued. “It defies common sense to say that my client is somehow editing phone numbers.”
Szyba also disagreed with the newspaper analogy because he said this case is about the internet. Information came from a third party, and the brokers aren’t using the data to create a narrative, he noted -- they’re just passing it through. Google gets immunity for doing effectively the same thing, he argued.
However, Atlas and New Jersey attorneys disagreed that data brokers are passive conduits of data. While the defendants may not be changing content, they are processing it by putting it into background check reports, said Assistant Attorney General Kashif Chand. For that and other reasons, he urged the court to deny the defendants’ motion to dismiss.
However, Bartle took issue with Chand’s separate argument that Congress passing a federal Daniel’s Law after the CDA shows that U.S. lawmakers must see the policies as consistent. The CDA addresses inconsistent state laws only, so the argument about a federal Daniel’s Law doesn’t apply, the judge said.
Later in the hearing, Bartle questioned another defendant lawyer’s argument that Daniel’s Law is an obstacle to FCRA because it makes it difficult to create accurate credit reports. Bartle said he reads Daniel’s Law as prohibiting a company only from disclosing protected information. “You can obtain information,” he said. “The question is if you can publish it.”
Liza Fleming, special assistant to the New Jersey solicitor general, said it’s premature to decide any FCRA preemption issue. Discovery is needed to collect additional facts about what was disclosed and if it’s allowed by the federal law, she said. The state isn’t arguing that data brokers must delete data that they're using only for internal purposes, she added.
Fleming also disagreed with defendant Restoration of America, a nonprofit conservative watchdog of elections, which argued that complying with Daniel’s Law would undermine its oversight of voting in violation of the NVRA. She argued that the NVRA governs how only the state maintains records, and it doesn’t shift to private entities after they obtain the data from the state.
Besides, the state law bars the release of only exact addresses, said Fleming. It would be acceptable for the nonprofit to give a more general location like the name of the person’s county, she said. However, the watchdog’s lawyer, John MacDonald of Constangy, said exact addresses are critical to checking whether voters enrolled in the correct precinct, for example.
Many organizations obtain voter information, said Rajiv Parikh, a PEM Law attorney representing Atlas. They still have an obligation to comply with Daniel’s Law requests to remove data, he noted.
Bartle concluded the argument by saying he would take the matter under advisement and rule as soon as he can. The judge also said he planned to hold a status conference shortly after Labor Day.