Protecting Public Officials: Impact of Judicial Privacy Laws on Background Checks

This article was first published on Forbes, on May 31, 2024.

In response to rising violence and threats against public officials, state legislatures across the United States have enacted judicial privacy laws to protect the privacy and safety of these individuals. These laws aim to restrict access to personal information that could be used to target public officials and their families. While these laws are essential for ensuring the safety of those in sensitive roles, they also have significant implications for employers conducting background checks.

The Need for Judicial Privacy

Elected officials, judges, election officials, school board members, and other public servants have faced increased violence and threats at their homes or the homes of their family members. Notable incidents include:

• The October 2023 murder of Maryland Judge Andrew Wilkinson by a litigant.

• The February 2023 killing of New Jersey Councilwoman Eunice Dwumfour.

• The July 2020 fatal shooting of Daniel Anderl, the son of U.S. District Court Judge Esther Salas.

• The October 2022 attack on Paul Pelosi, spouse of House Speaker Nancy Pelosi.

• The October 2020 thwarted kidnapping plot against Michigan Governor Gretchen Whitmer.

These incidents have prompted legislative measures to protect public officials and judicial figures. However, the measures differ concerning the protected individuals' roles, the scope of covered data, opt-in and out processes, applicability to private entities, and penalties for non-compliance.

The Daniel Anderl Judicial Secrecy and Privacy Act

The Anderl Act, passed by the U.S. Congress in 2022, offers comprehensive protections to "at-risk individuals" in the federal judiciary, including judges and their immediate family members. It restricts data brokers from selling or transferring covered information without a takedown request. Covered information includes home addresses, personal contact information, social security numbers, and bank account details. The law allows for injunctive or declaratory relief through the Department of Justice and permits actions for damages in cases of willful violations.

New Jersey's Daniel's Law

Named in memory of Daniel Anderl, Daniel's Law extends protections to judicial officers, law enforcement officers, prosecutors, and their immediate family members. The scope of covered information under Daniel's Law includes home addresses and unpublished home or cell phone numbers. It allows covered individuals to initiate takedown requests and permits private causes of action for damages, attorney's fees, costs, and punitive damages. Exceptions include disclosures made in the ordinary course of business and lawful investigations or reporting by the press.

Maryland's Judge Andrew F. Wilkinson Judicial Security Act

The Maryland Act protects current or retired judges, magistrates, and commissioners, along with their immediate family members. The scope of "personal information" covered by the Maryland Act is broad, including home addresses, phone numbers, email addresses, social security numbers, driver's license numbers, bank account details, vehicle identifiers, birth or marital records, children's names, and information about schools, daycares, places of worship, or employment locations for family members. Maryland's Act allows for private causes of action for actual damages, attorney's fees, and punitive damages in cases of willful violations. It provides exceptions for information publicly disclosed with consent or as part of news stories, commentaries, or editorials on matters of public concern.

Minnesota Judicial Data Privacy Law

Effective August 1, 2024, Minnesota's law protects the personal information of judicial officials in Minnesota, including judges, justices, and judicial employees. It classifies residential addresses, phone numbers, email addresses, and names of children or spouses as private data. Judicial officials can request the removal of their personal information, and violations can result in penalties, including actual damages, court costs, and attorney fees.

Wisconsin Act 235

The Wisconsin Judicial Privacy Act protects the personal information of judicial officers, including judges, justices, and commissioners. The law defines personal information to include home addresses, personal phone numbers, email addresses, social security numbers, driver's license numbers, bank account information, vehicle identifiers, and the identification of minor children. Judicial officers can request the removal of their personal information from public postings, and violations can result in injunctive relief, actual damages, court costs, and attorney fees. Exceptions include information disclosed for court orders, consented releases, and necessary transactions. The Act also includes an exception for information supplied pursuant to a permissible purpose under the Fair Credit Reporting Act (FCRA), such as background checks requested through a vendor.

Georgia Judicial Privacy Law

Georgia's SB 508 protects judges and their spouses in Georgia, allowing them to request the redaction of certain personal information from public postings. The law provides a private right of action for covered individuals but only applies to state and local entities. No provisions apply to businesses.

Pending Hawaii Judicial Privacy Legislation

Hawaii's H.B. 1916, pending the governor's signature, seeks to protect information about public servants, including judges and their families. It allows requests to remove protected personal information from the internet and provides injunctive or declaratory relief. Notably, H.B. 1916 maintains an FCRA exemption like Wisconsin's law.

Employer Impact

Judicial privacy laws significantly impact employers conducting background checks. Unless the law contains an express exception, such as the FCRA carve-outs maintained in the Wisconsin and Hawaii measures, these laws restrict access to the personal information of judicial officers and other protected public servants. The inability to access certain protected information could lead to challenges in verifying candidates' identities and backgrounds, particularly when searching public records. As a result, background checks will be incomplete or may not be able to be conducted. Employers must navigate these restrictions carefully, assessing gaps caused by the privacy laws and ensuring compliance with new legal requirements while still meeting their due diligence obligations. To address these challenges, employers should engage legal counsel to determine how to address a candidate's judicial privacy status as part of the pre-hire process.

Parting Thoughts

Judicial privacy laws represent a pivotal development in protecting public officials responding to the increasing dangers they face. For employers, these laws introduce complexities in background screening processes. Embracing these changes means adopting new strategies and ensuring robust compliance frameworks. As the need for privacy protections grows, so too must the diligence of employers in managing the dual imperatives of security and privacy.

Release Date: June27, 2024