THE COMMODIFICATION OF PUBLIC LAND RECORDS.

AuthorWeisbord, Reid Kress

Introduction 513 I. Traditional Functions of Dekd Recording 514 A. History and Mechanics of Recording Statutes 517 B. Interests Protected by the System 518 C. Entity and Trust Ownership 519 D. Local Nature of Recording 520 II. Public Land Records Today A. Private Title Plants and the Computerization of 520 Public Land Records 528 B. Big; Data and Web Llarvesting 533 C. Commercial Uses of Online Property Data 536 III. Policy Implications 537 A. The Public Interest 538 B. Data Privacy C. The Move Toward Anonymously Owned Land: 549 Privacy and Pitfalls 550 1. Anonymous Title: Voluntary Precautions 2. Entity Ownership and Money Laundering 552 Regulations 3. The Impact of Money Laundering Regulations 558 on Entity Ownership 560 4. Summary 560 Conclusion INTRODUCTION

On Sunday, July 19, 2020, at approximately 5:00 p.m., a seventy-two-year-old attorney named Roy Den Hollander disguised himself as a Federal Express deliveryman and rang the doorbell of the New Jersey residence of United States District Court Judge Esther Salas. (1) Daniel Anderl, Judge Salas's twenty-year-old son and only child, answered the door, whereupon Hollander pulled out a semiautomatic pistol and opened fire at pointblank range; Daniel's wounds were fatal. (2) When Mark Anderl, Judge Salas's husband, ran outside to see what had caused the commotion, Hollander shot Mark multiple times before fleeing the scene. (3) Judge Salas was in the basement during the shooting and was not physically harmed. (4) Mark survived the attack, but remained hospitalized weeks after the shooting. (5) The next day, Hollander's body was found in the Catskills, where authorities believe he committed suicide. (6')

Hollander's ghastly targeting of Judge Salas's family was not a random act of violence. In 2015, Hollander appeared before Judge Salas as a litigant in a civil action challenging the male-only military draft on grounds of sex discrimination. (7) In 2018, Judge Salas ruled in Hollander's favor, allowing his civil action to proceed beyond the pleadings, "but [Hollander] still ranted about her in his online writings, insulting her and claiming that she was a beneficiary of affirmative action." (8) Despite her reputation as a well-respected and hard-working jurist, Hollander published baseless insults about Judge Salas, describing her as "a lazy and incompetent Latina judge appointed by Obama." (9)

Investigators quickly connected Hollander to another shooting in California that bore a chilling similarity to the tragedy in New Jersey. (10) On July 11, 2020, an armed assailant disguised as a Federal Express deliveryman shot and killed fifty-two-year-old attorney Marc Angelucci outside his home in San Bernardino, California." Apparently, Angelucci and Hollander were bitter rivals in the fringe movement advocating for the protection of "men's rights." (12) Authorities believe that Hollander may have been planning the assassination of other judges to avenge long-simmering grievances, a concern that had previously prompted the FBI to alert New York Chief Judge Janet M. DiFiore that Hollander possessed a document with her name and photograph in his car. (13)

In a heartrending video, Judge Salas explained how she helieved Hollander obtained her family's home address:

[W]hat we cannot accept is when we are forced to live in fear for our lives because personal information like our home addresses can easily be obtained by anyone seeking to do us or our families harm. Unfortunately for my family, the threat was real. And the free (low of information from the internet allowed this sick and depraved human being to find all our personal information and target us. Currently federal judges' addresses and other information is readily available on the internet. In addition, there are companies that will sell your personal details that can be leveraged for nefarious purposes. In my case, die monster knew where I lived and what church we attended and had a complete dossier on me and my family. At the moment, there is nothing we can do to stop it. And that is unacceptable. My son's death cannot be in vain. (14)

The real property deed recording system, once a staid and uncontroversial corner of property law, is in the midst of a seismic transformation as public land records enter the internet age. Title documents recorded with a local register of deeds were always considered matters of public record, but when maintained offline in a municipal fding room, they were not available to members of the public without an in-person visit to city hall. Today, however, most public land records have been digitized and, in many cases, real property deeds and the personal identity data that they display arc accessible via the internet. The internet, in turn, has made the ownership of real property more transparent, but, for homeowners, the widespread online dissemination of property deeds--and the ability of data brokers to extract personal information from those documents--represents a significant erosion of privacy.

The horrific attack against Judge Salas and her family offers a compelling justification for enhancing personal safety protections for individuals, including judges and other public officials, who interact with risky or dangerous segments of the population. (15) But the online dissemination of data from public land records also implicates broader questions about the privacy interests and personal safety of millions of ordinary American homeowners: How, if at all, should the electronic publication of personal identity information extracted from public land records be regulated as a general matter? Judge Salas directed her criticism of the system at websites that publish and sell personal details, including home address information. The source of the information that led to her son's killing remains unclear, as many routine transactions have the potential to expose personal data to public view. But much personal information comes from digitized real property records supplied by the government itself through local deed recording registries. In fact, after centuries of maintaining a low profile as quiet custodians, local deed recorders are now at the vanguard of a newly booming industry that pays handsomely for electronic access to what has become known as "personally identifiable information" (PII) collected from publicly filed property deeds. (16)

There are many definitions of PII, but the term is generally understood to encompass "information that can be used to distinguish or trace an individual's identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual." (17) PII includes, for example, an individual's first and last name, home address information, telephone numbers, email addresses, information identifying personally owned property, age and date of birth, marital status, and family information. (18) Publicly filed land records may contain several categories of PII, such as home address and marital status. (19) That PII, as it turns out, is incredibly valuable because it can be used for targeted marketing and customer prospecting activities in what has grown into a $49 billion market for big data. (20)

The supply of PII collected from public records has increased rapidly to meet the demand. Local deed recorders, themselves, are now in the business of selling access to digitized public land records to commercial data brokers who, in turn, deploy artificial intelligence and search bots to collect and disseminate homeowners' PII. Title insurance companies, who amassed their own store of PII from public land records to improve the efficiency of title examination, also became active data marketers upon discovering that their existing warehouse of information could be repackaged and sold as big data. Critically, however, this free flow of information is a one-way street-once an individual's name and home address are published online, the resulting electronic record is nearly impossible for a homeowner to remove from the internet.

Mostly unnoticed by the general public, and largely overlooked by property law scholars, the digitization of real property records, and the resulting commercialization of PII, represents the most significant development in generations for the American deed recording system. Originally conceived as a notice-based protection for land purchasers and lienholders, the deed recording system is now publicly accessible online and is used routinely for purposes not directly related to the sale or encumbrance of real property, such as commercial data mining, targeted marketing, and customer prospecting. We characterize this transformation as the commodification of public land records because, in the modern information economy, electronically accessible deeds have become valuable assets that are readily exchangeable and exploitable on the open market for big data. The commodification of public land records has, in turn, begun to alter the privacy preferences for some homeowners. Indeed, the hyper-transparency of property records coincided with a notable shift in the high-end real estate market where purchasers increasingly transact in the names of shell companies rather than in their own names as individuals. Some huyers use anonymous entity ownership for privacy from the prying eyes of the press and commercial data brokers, while others use shell companies for less legitimate reasons, such as money laundering and creditor avoidance.

We contend that the commodification of public land records, coupled with the rise of anonymous entity ownership, raises challenging new questions about the traditional functions of the deed recording system. Individuals who record title to real property in their own name must tolerate the irrevocable online disclosure of their PII. In contrast, homeowners who conceal their identity through anonymous entity ownership find themselves ensnared in the...

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