Private Lives at Home and Public Lives in Court: Protecting the Privacy of Federal Judges' Home Addresses

• Publication year: 2021

Private Lives at Home and Public Lives in Court: Protecting the Privacy of Federal Judges' Home Addresses

Hannah Elias Sbaity

University of Georgia School of Law

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Private Lives at Home and Public Lives in Court: Protecting the Privacy of Federal Judges' Home Addresses

Hannah Elias Sbaity^*

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Table of Contents

I. Introduction......................................................................................................477

II. Background........................................................................................................479

A. The Not-so-New Danger to Federal Judges.....................479
B. The Recognition of the Right to Privacy..........................480

1. Academic Recognition of the Right to Privacy........................480
2. Judicial Recognition of the Right to Privacy.............................482
3. Statutory Recognition of the Right to Privacy..........................482

C. The Publicization of Real Estate Records........................483
D. The Role Private Entities Play................................................485
E. What Has Been Done.....................................................................486

III. Analysis..............................................................................................................489

A. The Implications of Nonaction................................................489

1. Impartial Administration of Justice............................................489
2. Detrimental Delay..........................................................................491

B. The Implications o f the Adoption of Senator Rand Paul's Amendment...........................................................................492

1. Deterrent Effect of Damages......................................................492
2. Losing its Meaning.........................................................................494
3. complications Amongst the Three Branches of Government....................................................................................494

IV. Conclusion..................................................................................................498

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I. Introduction

[M]y son's death cannot be in vain which is why I am begging those in power to do something to help my brothers and sisters on the bench. Now more than ever we need to identify a solution that keeps the lives of federal judges private . . . . Let me be clear and tell you firsthand; this is a matter of life or death.¹

Those were some of the hair-raising words spoken by Judge Esther Salas for the District of New Jersey after the murder of her only son, Daniel, and near-fatal shooting of her husband, Mark, at their family home in July 2020.² The tragedy that occurred to Judge Salas's family was carried out by an anti-feminist lawyer, Dan Hollander, while impersonating a FedEx delivery person.³ Hollander was upset at Judge Salas for her ruling in a court case that challenged the male-only military draft, and authorities believe that is why he attacked.⁴ In addition to the attack on the Salas family, Hollander was also a murder suspect in a different case involving a lawyer, and he had a list of other murder targets, including another federal judge.⁵ To carry out this attack on the Salas family, Hollander was able to access Judge Salas's publicly available home address.⁶

In the U.S., "there is no overarching framework, but rather episodic privacy protections for limited domains and in certain circumstances."⁷ The sources of U.S. privacy laws are evident in various federal statutes,⁸ a few state laws, and

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common law.⁹ For example, on the federal level, the Freedom of Information Act (FOIA) and the Privacy Act of 1974 are companion statutes that serve different purposes.¹⁰ These two statutes represent the attempt at a balance between disclosure of information to the public and the safeguarding of personally identifiable information (PII). While the Privacy Act of 1974 outlines fair information practice to guide how federal agencies should maintain individuals' records,¹¹ FOIA mandates federal agencies to disclose information to the public unless it falls under one of the nine exemptions.¹² Because real estate recording systems are within each individual state's autonomy,¹³ every state takes its own approach in formulating its laws related to the privacy of federal judges' home addresses.

Judge salas asks for help because she knows the danger in making federal judges' lives public. Her family is not the first federal judge's family to be targeted by a shooter due to the easy access of their home address.¹⁴ And with the publicization of federal judges' real estate records, it is unlikely that it will be the last. This fatal danger represents more than a general concern for federal judges' safety; it represents a threat to the rule of law itself. If judges feel insecure in their private spheres, their ability to administer justice impartially will be undermined. Even the mere appearance of impropriety can serve as a threat to the rule of law because of the importance of judicial independence. To mitigate this risk, this Note argues that federal judges' home addresses in their real estate records should be recognized as private and protected PII, because action on the federal level will result in blanket protection of federal judges and their families nationwide with a consistent definition of PII as it pertains to federal judges' home addresses.

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This Note first provides a background on the threats and harms that federal judges and their families have historically faced once individuals obtained access to their home addresses. The background section of this Note further discusses privacy law, the constitutionally recognized right to privacy, and the different approaches to privacy taken by scholars. This section also delves into which states provide privacy protections for federal judges' home addresses in their real estate records and how federal judges' home addresses are disseminated in this digital age. This section concludes with a discussion of the steps that have been taken after the tragedy of Judge Salas's family and what steps are yet to be taken, including the passing of the Daniel Anderl Judicial Security and Privacy Act. The analysis section of this Note weighs in on the implications of not providing this privacy to federal judges as well as the implications of passing an amended version of the bill before Congress. The best solution proposed in this section is the privacy recognition of federal judges' home addresses under federal law, preferably as written in the original bill. Finally, this Note will conclude with an emphasis on the importance of solving this problem not only for the safety of federal judges and their families but also for the viability of this nation's rule of law and democracy.

II. Background

A. THE NOT-SO-NEW DANGER TO FEDERAL JUDGES

In another chilling incident preceding the tragedy to Judge Salas's family, a gunman targeted U.S. District Judge Joan H. Lefkow's family in 2005 after getting ahold of her home address online.¹⁵ The gunman was a white supremacist who Judge Lefkow held in contempt for continued trademarks infringement.¹⁶ With forced entry, the gunman killed Judge Lefkow's husband and mother in their home.¹⁷ The gunman obtained their home address by posting a message on the "White Aryan Resistance" website¹⁸ — their home address could have easily been accessible through state public real estate records and disseminated without restraints online.

What happened to Judges Lefkow's and Salas's families are not the only targeted murders that have occurred at federal judges' private homes. They just happen to be the most recent. These types of murders date back to May 29, 1979 when U.S. District Judge John Wood was killed outside of his home before

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heading to work.¹⁹ Since the murder of Judge Wood, three other federal judges have been murdered.²⁰ These victims include U.S. District Judge John Wood, U.S. District Judge Richard Daronco, and Federal Appeals Court Judge Robert Vance.²¹ All of these federal judges were murdered at their publicized home addresses by revengeful parties in cases before them. According to the U.S. Marshals Service, security threats and inappropriate communications involving federal judges increased from 926 incidents in 2015 to 4,449 incidents in 2019, totaling almost a 500% uptick in incidents.²² Homes of federal judges and their families are no longer a safe and private environment away from the public courthouse.

B. THE RECOGNITION OF THE RIGHT TO PRIVACY

Because the U.S. does not have a blanket privacy framework, the right to privacy is recognized in various contexts²³ and is present throughout federal statutes, state laws, and common law.²⁴ In addition, various legal scholars have their own unique conceptualizations of the right to privacy.

1. Academic Recognition of the Right to Privacy

Before the Supreme Court recognized the right to privacy, former Supreme Court Justice Louis Brandeis and Samuel Warren advocated for the right to privacy and were the first to write about it in a major legal article.²⁵ In The Right to Privacy published in the Harvard Law Review in 1890, Justice Brandeis and Warren note that "[n]ow the right to life has come to mean the right to enjoy life,—the right to be let alone. . . ."²⁶

Over time, scholars have developed varying conceptualizations of information privacy as well as understanding what the law should protect.²⁷ The study of privacy law is highly contested academically, especially when it comes

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to defining privacy from a legal perspective.²⁸ When setting aside the differences in scholars' views, "information privacy, at its core, seeks to protect information intrinsic to human beings and the lives they live."²⁹ A spectrum of perspectives on privacy are contained within four key control...