U.S. Court of Appeals for the Third Circuit on Tuesday punted the destiny of Daniel’s Law to the New Jersey Supreme Court, asking the state’s top court to clarify exactly how much intent, if any, is mandatory to hold data brokers liable for posting private information online.
Writing for a unanimous three-judge circuit court panel, Judge Stephanos Bibas stated that the constitutional question can’t be answered until the state’s highest court determines what the law actually means.
The law was enacted after the horrific assassination of Daniel Anderl, the 20-year-old son of U.S. District Court Judge Esther Salas. A disgruntled lawyer used online databases to track down Salas’ home address, then appeared at her front door disguised as a UPS driver. He opened fire, killing her son and critically injuring her husband in 2020.
“This order marks an important step toward ending years of obstruction by powerful, multi-billion-dollar data brokers,” said State Sen. Joseph Cryan (D-Union), who sponsored Daniel’s law. “We’re one step closer to ensuring public servants don’t have to live in fear.”
The appellate panel certified two questions of the New Jersey Supreme Court: Does Daniel’s Law require a mental state — negligence, recklessness, intent — before liability attaches? And if so, which standard applies to which remedies?
Bibas suggested that the answer could make or break the law’s defense. Without a mental-state requirement, Daniel’s Law might be vulnerable to strict scrutiny under the First Amendment; with one, the state might sidestep those pitfalls.
Now the state’s highest court must decide between strict liability – will companies be culpable if they fail to comply within the ten-business-day period, or will they enact a fault-based standard that would hold brokers liable only if they knowingly or recklessly refused requests to remove names.
Daniel’s Law shields the home addresses and unlisted phone numbers of judges, prosecutors, police officers, and other at-risk public officials, along with their immediate family members. Those individuals may send written notices to websites, data brokers, and other entities demanding their information be removed; failure to comply within ten business days can trigger damages of at least $1,000 per violation, injunctions, and, in “willful or reckless” cases, punitive damages.
Atlas Data Privacy, a private firm that manages Daniel’s Law notices for thousands of subscribers, sued more than 40 data brokers and search firms after repeated refusals to comply. Some of the companies pushed back, calling Daniel’s Law, alleging that it violated their First Amendment rights.
State Sen. Vin Gopal (D-Long Branch) called the decision “a huge win for decency.”
