Readers of this blog may recall our prior piece discussing an influx of lawsuits brought by Atlas Data Privacy Corporation ("Atlas") against various companies for violating a New Jersey State privacy regulation known as Daniel's Law. Not long after Daniel's Law was amended to allow aggrieved persons to assign their claims, Atlas filed over 150 lawsuits on behalf of various "covered persons," as defined under Daniel's Law. Since this wave of filings, few new lawsuits have been filed, and litigation in existing cases has slowed to a glacial pace. However, in at least one case, constitutional challenges to Daniel's Law have been raised, which we discuss below.
Constitutional Challenge to Daniel's Law
Utilizing the assignment mechanism under Daniel's Law, Atlas, on behalf of seven individuals in law enforcement, filed a lawsuit alleging that defendant Lightbox Parent, L.P. ("Lightbox") violated Daniel's Law by: (1) disclosing the home addresses or unpublished telephone numbers of these individuals; and (2) failing to remove this information within ten (10) days of receiving their requests to remove same. Lightbox, joined by at least 73 other defendants sued by Atlas, filed a Motion to Dismiss, challenging the constitutionality of Daniel's Law. The primary arguments Lightbox advances in support of its challenge are: (1) the law restricts significantly more speech than necessary to protect the government's interest; (2) the law does not materially advance the State's safety interests; (3) there are less restrictive alternatives to achieve the State's interests than what the law requires; and (4) the law is unconstitutionally vague.
In light of this challenge to the constitutionality of Daniel's Law, on August 5, 2024, the Attorney General of New Jersey intervened and submitted an opposition to Lightbox's Motion to Dismiss. In addition, the National Association of Assistant United States Attorneys, the New Jersey State Policemen's Benevolent Association, Inc., and the National Association of Police Organizations each received leave from the Court to submit an amicus brief supporting the constitutionality of Daniel's Law.
Readers of our earlier blog on Daniel's Law may remember that the statute was enacted in response to the killing of a New Jersey federal judge's son after the perpetrator obtained the judge's home address on the Internet. In direct response to this tragic incident, Daniel's Law was designed to protect the disclosure of the home addresses and/or telephone numbers of "covered persons." Daniel's Law defines a "covered person" as "an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator . . . or prosecutor, and any immediate family remember residing in the same household . . . ." After receiving a request to remove a covered person's information, the recipient has ten (10) days within which to comply. Daniel's Law permits recovery of actual damages or up to $1,000 per violation.
Compliance with Daniel's Law and Other State Privacy Laws
Although the Court has not ruled on Lightbox's Motion to Dismiss, we note that litigants generally face an uphill battle when challenging the constitutionality of any statute. In addition to New Jersey, several other states, including Hawaii, Iowa, and Missouri, have enacted laws similar to Daniel's Law, and many other jurisdictions are in the process of considering comparable legislation. Companies doing business in New Jersey State should anticipate that Daniel's Law will survive the constitutionality challenge. As such, it is imperative that companies have policies and procedures in place to prevent the disclosure of home addresses and/or unpublished telephone numbers after receiving requests to remove same.
The attorneys at Klein Moynihan Turco ("KMT") have been at the forefront in considering Daniel's Law claims which target companies in the consumer data marketing space. KMT regularly advises clients on compliance with various state and federal privacy laws.
If you need assistance with consumer data privacy and/or marketing law compliance, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
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