(WASHINGTON) — A section of the Judicial Security and Privacy Act—passed by Congress and headed for President Biden’s desk—would enshroud the federal judiciary “with a cloak of inscrutablity,” PEN America said today, raising concerns that journalists and civil society will be prevented from fair investigations of judges.

The 2023 National Defense Authorization Act (NDAA) includes Section 5934 of the Judicial Security and Privacy Act, a provision intended to protect federal judges amid a marked uptick in threats of violence against jurists serving on the bench.

“The Judicial Security and Privacy Act will enshroud the federal judiciary with a cloak of inscrutability, curtailing the ability of journalists and civil society to fairly investigate and uncover cases of ethics violations and possible malfeasance on the part of judges,” said Nadine Farid Johnson, Managing Director of PEN America Washington and Free Expression Programs.

The intent of the legislation is to prevent data brokers from sharing personally identifiable information about federal judges and their close relatives. The provision goes further by sanctioning the broad removal and censorship by data brokers of “covered information” of judges and their families, including but not limited to birthdates, home addresses, and employers.

While Section 5934 may appear well-intentioned, it flies in the face of the First Amendment. It would have a chilling effect on judicial oversight, with the potential to censor non-governmental organizations and newsrooms fearful of facing legal and financial penalties from discussing or reporting information relating to judicial ethics such as judges’ conflicts of interest and other matters of public concern. Section 5934’s exemptions for consumer reporting agencies and financial institutions that engage in data brokerage pursuant to existing statutes effectively render the provision defective in covering the data brokers it purports to target.

Johnson said: “Supreme Court jurisprudence has repeatedly affirmed the public’s right to scrutinize public servants’ information under the First Amendment. Protecting judges’ safety and respecting free expression are not mutually exclusive.”

About PEN America

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more at pen.org.

Contact: Suzanne Trimel, [email protected], 201-247-5057