WASHINGTON (CN) – With only Arkansas having submitted voter data sought by President Donald Trump, a federal judge promised to rule quickly on whether privacy interests warrant a restraining order.
EPIC, short for the Electronic Privacy Information Center, brought the underlying challenge last week, calling the attempted data collection by the Presidential Advisory Commission on Election Integrity “unprecedented.”
Alleging violations of the E-Government Act of 2002, EPIC says the commission needed to conduct a privacy-impact assessment before its vice chair, Kansas Secretary of State Kris Kobach, asked all 50 states and the District of Columbia for the data.
The commission asked states to voluntarily submit by July 14 voters’ full names, addresses, dates of birth, political party affiliation, partial Social Security numbers, elections voted in since 2006, voter status, felony convictions, military status, overseas information and multistate voter registration.
Though the government’s attorneys have argued that the E-Government Act is applicable only to federal agencies, whereas the commission is an advisory panel, U.S. District Judge Colleen Kollar-Kotelly zeroed in at an hour-long hearing Friday on the Defense Department’s role in the data collection.
Indeed the website where the commission directed states to submit their data is operated by the U.S. Army Aviation and Missile Research Development and Engineering Center, meaning that the data is held on a Department of Defense server.
Kollar-Kotelly posited that this could make the agency subject to the E-Government Act, but Justice Department attorney Elizabeth Shapiro urged the judge to think of the DOD’s website as a temporary conduit, storing the data before it can be downloaded by the White House. Shapiro noted that state election officials can set an expiration date for any data they upload, and she said the agency had already conducted a privacy assessment for the site.
EPIC argued in an amended complaint Friday afternoon, however, that the 2015 privacy-impact assessment for the website applied only to federal employees and contractors, and specifically says it may not be used to collect personal information from the general public.
One defense the government has put forward to EPIC’s complaint is a challenge to the group’s standing. “In any event, EPIC’s members could not possibly be injured by the transfer of public information from one sovereign to another,” the commission’s July 5 reply brief states.
Kollar-Kotelly told EPIC she needed more information about how its members would be injured.
Marc Rotenberg, the group’s director and president, told the court Friday that the lack of a privacy assessment hampers the ability of the group’s 100 advisory board members, 30 of whom signed a statement asking state officials not to release the data, to carry out their mission.
EPIC has worked on voter-privacy issues for nearly 20 years, Rotenberg said.
But Shapiro insisted that there can be no injury to EPIC if states don’t turn over the information because the data the commission requested is public.
That the commission’s undertaking is only a request, and one from which states can opt out, was something Shapiro stressed repeatedly. She argued that the commission’s authority to collect the data comes from the executive order President Trump issued on May 11 to create the commission, after suggesting without evidence that he lost the popular vote to Hillary Clinton because millions voted illegally.
Rotenberg countered that not all of the data is publicly available information, and noted that people must often use the last four digits of their Social Security numbers to access service accounts.
“None of these categories lend themselves to an easy release of sate data,” he said.
Shapiro meanwhile emphasized that the commission is in its early stages, offering scant details about its structure and organization. For example, the executive order says the General Services Administration – which is subject to privacy requirements like other federal agencies – would support the commission. Shapiro could not say, however, what role it would play.
She also could not say who would be responsible for downloading voter information from the DOD website, what kind of database of system the commission will use for compiling and storing the data, what system will be used to publish the information, or whether the commission has dedicated office space yet.
Although Shapiro told the court the data will be anonymized, she was not able to say who would be in charge of that.
Kollar-Kotelly offered no hint about when she would rule, saying only that it would be soon.
EPIC’s amended complaint names the Defense Department as a co-defendant.