Most of the arguments to relieve data firms of litigation under Daniel’s Law in New Jersey were rejected by a Pennsylvania federal judge who was sitting in United States District Court for the District of New Jersey because all of the judges on that circuit recused themselves from the cases.

Federal Judge Harvey Bartle III rejected a consolidated motion to dismiss the cases from 37 plaintiffs sued by Atlas Data Privacy Corporation. The data firms, several of which work with fundraisers, claimed that Daniel’s Law is unconstitutional and that it abridges freedom of speech.

While the judge disagreed, data firms might have won on the largest part of the decision. Negligence would have to be proved for damages to be assessed. That means, for the most part, fundraisers can safely be back soliciting in New Jersey.

The judge did take a swipe at the action in general, ruling that Daniel’s Law does not state explicitly what standard of liability applies for actual or liquidated damages. However, it does require that the offending conduct amount to “willful or reckless disregard of the law” for the award of punitive damages.”

The case has been appealed to the United States Court of Appeals for the Third Circuit in Philadelphia. Representatives for both sides did not return messages.

The New Jersey law is referred to as Daniel’s Law in the memory of Daniel Anderi, the late son of Federal Court Judge Esther Salas and her husband Mark Anderi. Daniel was shot to death in 2020 when he opened the door to Roy Den Hollander, a lawyer who was angry about a ruling from Salas. Mark Anderi was wounded in the shooting and recovered from his injuries. Hollander was later found dead of an apparent self-inflicted gunshot wound.

The data firms were flooded with requests from Atlas Data for removal of names from lists, often thousands per day, making it nearly impossible to comply with the law and get accurate donor data to nonprofits.

Daniel’s Law provides that judges, prosecutors, and other law enforcement officers, as well as their immediate family members covered persons may request in writing that any person, business, or association not disclose or make available their home addresses and unpublished telephone numbers. It creates a civil remedy for actual and punitive damages and injunctive relief for non-compliance not only for covered persons but also for their assignees. There are also criminal penalties.

The data firms were sued for not quickly deleting the names of covered persons who were routinely in databases and names that were not circulated specifically because they were involved in law enforcement, the judiciary, or other protected professions.

Atlas Data is the assignee of approximately 19,000 unnamed covered persons who used its website to notify the data firms to cease disclosure of their personal contact information. The challenge for many of the firms was that were swamped with requests and could not comply with the requests during the mandatory 10 business days after receipt. It made them liable to the covered person or the covered person’s assignee, i.e. Atlas, who then may bring a civil action in the Superior Court.

Non-compliance carries a monetary penalty and the award of appropriate equitable relief.  The court can award actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of this act; punitive damages upon proof of willful or reckless disregard of the law; reasonable attorney’s fees and other litigation costs reasonably incurred; and any other preliminary and equitable relief as the court determines to be appropriate. The law also provides that reckless disregard is a crime.

According to court papers Atlas would retain 35% of any recovery.

Judge Bartle ruled that Daniel’s Law, does not concern commercial speech. It authorizes covered persons to request non-disclosure of their home addresses and unpublished phone numbers. It regulates particular subject matter. “The speech does not propose a commercial transaction. … Accordingly, Daniel’s Law is content-based,” not commercial speech.

The judge concluded that the home addresses and unpublished phone numbers are not matters of public significance. “The narrow limitation under Daniel’s Law constitutes but a tiny part of the life story of covered persons and is not information that is necessary or pertinent for public oversight.”

The data firms’ claim that Daniel’s Law is not a privacy law but rather a law to provide for the safety and security of covered persons was rejected by the judge. He called it a “narrow reading” and that privacy has generally been defined as the right to be let alone.”

The ruling continued that Daniel’s Law does not inhibit in any meaningful way the public’s knowledge of public officials or its ability to hold them accountable for their performance and behavior. He described the law reach as “limited scope.” The public clearly has a vital interest in such information while the same cannot be

In a nod to the data firms, the judge ruled that it “would be nonsensical and effect an absurd result” for the court to read into Daniel’s Law a standard of civil liability for actual or liquidated damages. “To ascribe a strict liability standard to Daniel’s Law not only would likely render the law unconstitutional but also could lead to absurd results,” he wrote.

Judge Bartle denied the motion to dismiss the suits. After applying the legal analysis to the particular facts and circumstances presented, “Daniel’s Law with its negligence standard of liability for actual or liquidated damages is constitutional on its face. The speech that is restricted is not of public significance, the law imposing the restriction serves to further a need of the highest order of the State of New Jersey, and the law serves the significant interest of the State and is not fatally underinclusive. The consolidated motion of the defendants to dismiss these actions on the ground that Daniel’s Law is facially unconstitutional will be denied.”

The bottom line for fundraisers is someone must prove negligence or willful or reckless disregard before damages can be sought. According to Robert Tigner, regulatory counsel of The Nonprofit Alliance in Washington, D.C., so long as fundraisers faithfully maintain their in-house suppression files and require certification of Daniel’s Law compliance from firms from whom lists are obtained, they should feel free to communicate with New Jersey residents.

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Source From Non Profit Times