Last week, the U.S. Senate began consideration of the fiscal year 2024 National Defense Authorization Act, which included an amendment that would permit federal lawmakers to demand that certain entities take down “covered information” — including home addresses, phone numbers, and email addresses — from the internet and prohibit the transfer of such information.
The measure is based on the Daniel Anderl Judicial Security and Privacy Act, which passed as part of last year’s NDAA. Commonly known as “Daniel’s Law,” the judicial measure was introduced in response to the tragic murder of Daniel Anderl, the 20-year-old son of a federal district judge in New Jersey. A gunman shot and killed Anderl at the home he shared with his mother, Judge Esther Salas, and father, who was seriously wounded in the shooting. The law broadly permits judges to demand that certain personal information be deleted online.
While well-intentioned, these measures are overbroad, subject to abuse, and a threat to government transparency and accountability.
The NDAA amendment would apply to “data brokers,” broadly defined as “a commercial entity engaged in collecting, assembling, or maintaining personal information concerning an individual who is not a customer, client, or an employee of that entity in order to sell the information or otherwise profit from providing third-party access to the information.” Data brokers are prohibited from selling, licensing, trading for consideration, or purchasing “covered information.”
Importantly, other entities must take down covered information from the internet upon the request of a member of Congress or other “at-risk individual,” as defined in the law. After the business receives the request, it also may not transfer the information to any other entity.
The amendment is more limited than Daniel’s Law, in that the definition of covered information only applies to primary and secondary home addresses, home or personal cell phone numbers, personal email addresses, social security and driver’s license numbers, bank account and credit or debit card numbers, license plate numbers, the identification of a minor child, information regarding schedules of school or day care attendance or routes taken to or from school or day care, information regarding routes taken to or from work, and precise geolocation data that can identify an at-risk individual. Daniel’s Law covers information about family members’ schooling and employment more broadly, as well as date of birth.
The amendment does include exceptions that purport to protect newsgathering and reporting. For instance, the term “data broker” excludes entities engaged in “reporting, news-gathering, speaking, or other activities intended to inform the public on matters of public interest or public concern.” The prohibition on transferring, or displaying or posting, covered information by other businesses following a takedown request does not apply if the information is “relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” The amendment also states that it is not meant to “prohibit, restrain, or limit” the “lawful investigation or reporting by the press of any unlawful activity or misconduct alleged to have been committed” by a covered individual or reporting on a “matter of public concern” regarding that individual.
At first blush, that all may seem kosher and desirable. But look deeper and it’s clear that the bill would significantly burden newsgathering and reporting. While reporters will of course be careful not to improperly disclose covered information, tracking down, say, secondary homes that may be in someone else’s name or using historical geolocation information can be essential for accountability reporting. This bill would permit members of Congress and their relations to scrub that information from the internet, making such reporting more difficult.
For example, banking and real estate information would be important for reporters covering former Rep. T.J. Cox (D-Calif.), who is currently under federal indictment for fraud. Also, former Rep. Aaron Schock (R-Ill.) was found to be billing his campaign and office for personal travel after the Associated Press extracted location information from his Instagram account. Anyone who has covered government corruption knows that using data about public officials’ finances, family employment, property ownership, and travel, among other things, is key.
But what about those various exceptions? The issue there is that a representative, senator, or family member could still request that a news organization take down reporting or could file a lawsuit to do so, claiming it contains covered information and arguing that the reporting is not in the “public interest” or of “public concern.” Even if meritless, that creates the headache (and expense) of litigation and, if courts get it wrong, could directly suppress public interest reporting.
Congress has vast authority to appropriate funds for its own protection and to pass laws that punish threats or attacks against lawmakers and their families. But this law permits online censorship even in cases where the information is going to be used not just beneficially, but in service of democracy. The Reporters Committee coordinated a letter urging senators to oppose the amendment. We’ll keep you updated.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.