What to know about a judicial privacy bill Congress is passing with a major defense package

By Tierney Sneed, CNN

A bill that allows federal judges — who have increasingly become targets of threats, violence and even assassination plots — to shield certain personal information about them from public view is poised to finally become law.

But the legislation is also rankling court watchdogs who contend the bill could complicate efforts to scrutinize the judicial branch for ethics issues.

The bill is named the Daniel Anderl Act, in honor of a federal judge’s son who was shot and killed in 2020 in an attack by a disgruntled litigant who had appeared before the jurist. The legislation requires that databases and other internet platforms take down certain private information related to a federal judge or their family — such as home addresses, sensitive financial information, or employment information of their spouse — if the judge requests the information’s removal.

After a multi-year effort to get the legislation passed in Congress, the bill was tucked into a major, must-pass defense package that the House approved last week and that will be taken up by the Senate in the coming days.

Here’s what to know about the judicial security bill:

What does the legislation do?

The bill allows the federal judiciary’s administrative office to file lawsuits — which carry the threat of fines and other penalties — against internet sites or other entities that don’t comply with demands from judges that certain personal information be taken down. Among the categories of personal information that can be restricted from public view under the bill are judges’ full birthdays; home addresses, including second homes; sensitive financial information like bank accounts and credit card information; and information related to their spouses’ employment. Under the bill, relatives of the judge, like their spouses, children or even anyone living at their home, can also make the removal demands.

The categories of information covered by the bill were crafted based on the feedback lawmakers got about the threats the judges are facing, according to a Democratic congressional aide, who pointed particularly to how certain information could be used to physically track judges.

The bill does not displace the ethical disclosure requirements judges already face, the congressional aide noted to CNN.

When a version of the legislation was introduced last year, the American Civil Liberties Union (ACLU) raised concerns that the legislation, if applied broadly, could unconstitutionally restrict speech. But the civil liberties organization is not opposing the bill.

Lawmakers worked with the ACLU and court watchdog groups to adjust the legislation’s language, according to Hill staff. The current version says that media outlets and others that publish covered information are exempted from the removal demands 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.”

Additionally, the bill requires that judges be offered training on how to make removal requests, as well as training on home security and on using social media. It provides a grant program for state and local governments to facilitate their compliance with information removal requests. And it extends the threat-monitoring programs that are being offered to Article III judges to administrative judges as well.

What prompted the bill?

The bill was introduced by Sens. Bob Menendez and Cory Booker, and Rep. Mikie Sherrill, all New Jersey Democrats, in the weeks after the July 2020 attack on the US District Judge Esther Salas’ family, which killed her son and left her husband seriously injured. They were shot at her home in the summer of 2020 by a gun man impersonating a delivery man. The apparent gunman, who later took his own life, was a men’s rights attorney who argued a case in front of Judge Salas, and who had written racist and sexist rants about her. He had found personal information about the judge on the internet.

“The federal judiciary is critical to our democracy and this bill is designed to protect judges as they perform their solemn duty of administering equal justice under the law,” Menendez said in a statement to CNN.

The attack on Salas’ family was one of several examples of judges being targeted with violence. Earlier this year, a man attempted to break into the home of Supreme Court Justice Brett Kavanaugh in an alleged assassination plot and a former state court judge in Wisconsin was killed in his home in June. Other judges and their families have been targeted with violence and hostile behavior in recent years.

According to statistics by the US Marshals Service, the number of threats and inappropriate communications to judges reported to the agency have risen dramatically in recent years. The reports more than quadrupled between 2015 and 2018 — from 926 to 4,542 in those years, respectively — and have remained at around the 2018 level in the years since.

The bill has the emphatic support of federal judicial organizations and of several bar associations.

They praised the bill as “striking a balance between the need for judicial security with First Amendment concerns and the public’s interest in transparency” in a letter this fall to congressional leaders that said it was “imperative that Congress enact these provisions without delay.”

Salas has taken a notably public role in advocating for more protections for judges, making appearances on Capitol Hill and in news media.

“We’re in a unique position. We preside over cases and 50% of the time people are not happy with us,” Salas told CNN after the former Wisconsin judge, John Roemer, was killed. “If the death of my 20-year-old son and now of Judge Roemer doesn’t say we need something done to protect this personally identifiable information, I don’t know what will.”

Why is the legislation being passed with a defense bill?

The legislation has attracted broad bipartisan support, attracting GOP sponsors like South Carolina Sen. Lindsey Graham and passing out of the Senate Judiciary Committee unanimously last year. But the efforts to get it approved by the full Senate have been thwarted by Kentucky Republican Sen. Rand Paul, who has objected to attempts to pass it via a floor mechanism known as unanimous consent.

In a statement to CNN, Paul said that he agrees with the “spirit” of the bill but wanted its privacy protections extended to members of Congress. Now that the bill has been added to the National Defense Authorization Act, a massive defense package that Congress passes annually, Paul’s options for scuttling it are limited.

How will the bill affect efforts to scrutinize judges for ethical conflicts and other concerns?

The legislation’s intentions of protecting judges from bad actors are widely supported. But critics say its means of doing may have a chilling effect on those who scrutinize conflicts of interests and other ethical concerns on the federal bench. It may also impede the reporting on those issues, the skeptics contend.

The concerns are two-fold: that the bill will create legal exposure for those who publish private information about a judge for a legitimate reason. And that it will make gathering the information that makes that scrutiny possible more difficult, by potentially restricting public access to things like real estate records and information about where a spouse works.

Whether these worries will bear out will depend largely on how the legislation is enforced, according to legal experts and the legislation’s critics.

Congressional staff worked with constitutional law experts, including the ACLU, to structure the legislation’s exemptions. But critics still see the carve-out language as being open-ended enough to make some — and especially good government activists and other court watchers who don’t fit squarely in the exemption language geared at media outlets — leery about publishing information that might expose them under the law.

“I am happy there’s a media exemption in it … but it should be clearer to ensure that the work I do and the work that others do in the accountability space is protected,” said Gabe Roth, whose group Fix the Court advocates for more transparency and ethical standards in the judiciary. “Because, if I am sued, someone is going to be bringing it to a federal judge. It’s not like a neutral arbiter says, ‘Oh ya, it’s a matter of public concern.'”

The bill gives recipients of takedown requests from judges 72 hours to comply, a notice period that will allow publishers the ability to object to requests they think fall within the legislation’s exemptions, according to the congressional aide.

Of second concern is how it will make it more difficult to report on judges in the first place, by obscuring some of the sources of information court observers and journalists use to examine potential ethical conflicts within the judiciary.

Records linked to a judge’s home address may lead to reporting showing that he or she has benefited from a shady real estate deal from a political donor. Or a spouse’s employment information may raise questions about whether the judge is following their recusal obligations — a topic that has been at the center of public debate with the reporting on Justice Clarence Thomas’ wife’s political advocacy.

“It’s not hard to see why that provision rings alarm bells in a climate where there has been quite a lot of important reporting about the political activities of the spouses of sitting members of the judiciary,” said Grayson Clary, a staff attorney for the Reporters Committee for Freedom of the Press.

Will the bill stand up in court?

The bill’s supporters acknowledge that its approach is novel, but are confident they have hit the right balance between protecting judges and complying with the Constitution. That may be tested in a legal challenge, if those who are subjected to enforcement are willing to fight back in court.

The databrokers who are subjected to specific restrictions under the bill regarding the transmission of judges’ private information “might not step up for the free flow of information,” Clary said.

The constitutionality of the legislation may depend on how aggressively the bill is enforced, particularly when it comes to that the way the carveout language — and its protections for information that is published because it is relevant to matters of public concern — is interpreted.

“If the [exemption] language is read broadly, then it would protect all the speech that needs protection,” said Eugene Volokh, a constitutional law professor at the UCLA School of Law. “If the language is read narrowly, then it could end up suppressing a good deal of constitutionally-protected speech.”

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CNN’s Daniella Diaz contributed reporting.