While the United States Court of Appeals for the Third Circuit (“Third Circuit”) weighs the constitutionality of New Jersey State’s Daniel’s Law, a West Virginia federal court recently opined on the constitutionality of its own Daniel’s Law. Below, we discuss the decision in detail and its ramifications for consumer data-oriented businesses.
West Virginia Court Rules That Its Daniel’s Law Is Unconstitutional
Aimed at preventing a similar tragedy as that which led to New Jersey State’s enactment of Daniel’s Law, the State of West Virginia, like some other state legislatures across the country, enacted its own Daniel’s Law in 2021. Like New Jersey’s Daniel’s Law, the West Virginia Legislature enacted its Daniel’s Law to protect public officials and to allow them to perform their duties without fear of reprisal at home. No one disputes the compelling interest of protecting public officials, but the United States District Court for the Northern District of West Virginia recently dismissed several lawsuits finding that West Virginia’s Daniel’s Law is facially unconstitutional.
In Michael Jackson v. Whitepages, Inc., Michael Jackson (“Jackson”), a retired law enforcement officer, filed class action complaints against Whitepages and four other defendants. Whitepages, along with the other defendants, filed a consolidated motion to dismiss the actions arguing, among other things, that West Virginia’s Daniel’s Law is a content-based regulation of speech that cannot survive strict scrutiny. Specifically, Defendants challenged the provision of West Virginia’s Daniel’s Law which provides a private right of action for public officials whose home address or unpublished home personal telephone number is disclosed without permission.
After determining that West Virginia’s Daniel’s Law regulates speech based on its content, the Court applied strict scrutiny to evaluate whether the law is narrowly-tailored to serve a compelling state interest. Comparing West Virginia’s Daniel’s Law to analogous state and federal statutes, the Court ruled that West Virginia’s Daniel’s Law fails to survive strict scrutiny because it burdens more speech than is necessary. Unlike other laws which shield similar information (such as New Jersey’s Daniel’s Law), West Virginia’s Daniel’s Law does not require individuals to provide notice (and the opportunity to remove the information) to the alleged disclosing entity before bringing a lawsuit. On this basis, the Court determined that “West Virginia’s Daniel’s Law is far more restrictive than its comparators and is definitively not the least restrictive means of achieving its compelling interest.” Indeed, the Court looked specifically to New Jersey’s upholding of the constitutionality of its Daniel’s Law and found that “[j]ust as the presence of a notice requirement was critical to the New Jersey Supreme Court’s decision to find New Jersey’s Daniel’s Law narrowly tailored, the absence of any notice requirement in Section E of West Virginia’s Daniel’s Law is critical to the court’s conclusion that West Virginia’s Daniel’s Law is not narrowly tailored.” As a result, the Court ruled that West Virginia’s Daniel’s Law is unconstitutional and granted Defendants’ Motion to Dismiss.
Compliance with Daniel’s Law and Other State Privacy Laws
In its ruling, the Court also found West Virginia’s Daniel’s Law problematic on the basis that it imposes liability without any knowledge on the part of the disclosing entity. Although this decision is limited to Jackson’s lawsuits, the West Virginia State Legislature likely will amend its Daniel’s Law to withstand any future constitutionality challenges.
Many states have regulations similar to that of West Virginia’s Daniel’s Law which permit private rights of action and provide liquidated damages for non-compliance. New Jersey and West Virginia’s respective Daniel’s Laws both permit the recovery of actual damages or up to $1,000 per violation, whichever is more, together with attorneys’ fees and costs. Often these Daniel’s Law lawsuits are filed as class actions, which can lead to substantial liability.
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