Daniel’s Law Back Before the New Jersey Supreme Court

The Third Circuit Court of Appeals has asked the New Jersey Supreme Court to help decide the fate of Daniel’s Law, New Jersey’s privacy statute designed to public officials’ addresses and other personal information from being disclosed online. 

Since its enactment in 2020, Daniel’s Law has been subject to numerous state and federal lawsuits. The latest case, Atlas Data Privacy Corp., et al., v. We Inform LLC, et al., involves a 2023 amendment that allows individuals covered by the statute to assign their claims to a third party. While the district court largely upheld the law, the Third Circuit has asked for the New Jersey Supreme’s Court guidance before issuing a decision. 

“To resolve this case, we — and other courts facing similar matters — would benefit from an authoritative construction of the state statute by the New Jersey Supreme Court,” Judge Stephanos Bibas wrote on behalf of the appellate panel. 

Facts of the Case

Daniel’s Law (P.L. 2021, c. 371) protects the personal information of active or retired judges, prosecutors, law enforcement officers, and their immediate family members. Government agencies, individuals, and businesses are prohibited from publishing the home address and telephone number of individuals who request protection under Daniel’s Law.

Under the statute, upon receipt of a notification by a Covered Person, “any person or business association” shall not “disclose” or “otherwise make available” the individual’s home address or phone number. “Disclose” is broadly defined to include any action to “deliver, transfer, post, publish, distribute, . . . and making available or viewable within a searchable list or database.” Businesses that receive a request must comply within 10 days or face lawsuit for mandatory liquidated damages of $1,000 per claim.

Atlas Data Privacy provides services to covered persons. It identifies companies that share Atlas subscribers’ personal data and sends the companies notices to stop doing so. In exchange, subscribers pay a fee and assign Atlas their claims under Daniel’s Law. If Atlas brings a successful Daniel’s Law claim, it shares the damages with the subscriber. About 19,000 people have subscribed to Atlas.

As alleged in court documents, Atlas and a group of individual plaintiffs filed suit against several companies that failed to respond to Daniel’s Law requests, seeking damages and an injunction. The defendants moved to dismiss, claiming that Daniel’s Law facially violates the First Amendment. First, they argued that Daniel’s Law is subject to (and fails) strict scrutiny because it regulates speech based on its content. Second, they maintained that the law impermissibly chills uncovered protected speech because it makes defendants liable without requiring any mens rea. Rejecting both claims, the District Court denied the motion to dismiss.

Questions Before the NJ Supreme Court

On appeal, the Third Circuit did not reach a decision. Rather, it 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?”

According to the Third Circuit, to resolve the case, it needs to know whether and what mental state(s) the law requires for liability. It further noted that “state precedents on statutory construction and constitutional avoidance point in opposite directions.” Under court rules, the Third Circuit can seek state Supreme Court guidance on questions of law in ongoing disputes if “there is no controlling appellate decision, constitutional provision, or statute in this State.”

“The questions are important and most suitable for the New Jersey Supreme Court,” Judge Bibas explained. “New Jersey unanimously enacted the original version of this law in the wake of a tragic crime that made national headlines. The state has a strong interest in interpreting its own law — particularly if a federal court is unsure of its constitutionality.”
The New Jersey Supreme Court must now decide whether to accept or reject the question.