Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

President Donald Trump issued an executive order creating the commission in May in an apparent bid to vindicate his eye-popping claim made days after he took office that between 3 million and 5 million people voted illegally in last year's election. | Evan Vucci/AP Photo Appeals court skeptical of privacy-focused suit against Trump voter fraud panel

An appeals court gave a skeptical reception Tuesday to a lawsuit claiming that President Donald Trump's voter fraud commission violated federal law by failing to study the privacy impact of a demand for voter rolls and other personal data on millions of Americans.

During oral arguments, a three-judge panel from the D.C. Circuit Court of Appeals didn't say much about the possibility that the President's Advisory Committee on Election Integrity violated a requirement Congress created in 2002 that federal agencies conduct a "privacy impact assessment" before embarking on collection of data on individuals.

Instead, the judges repeatedly questioned whether the organization pressing the suit — the Electronic Privacy Information Center — had legal standing to pursue the case.

"I have to say that EPIC does not seem central to the particular interests protected here," Judge Stephen Williams said, suggesting that individuals whose data was being requested might have more at stake.

EPIC's Marc Rotenberg said the organization's focus on privacy was unmistakable and the commission's failure to publish the assessment negatively impacted EPIC's work.

"We are named the Privacy Information Center," said Rotenberg. "It is central to our mission. I will say that this data collection undertaken by a presidential commission is absolutely unprecedented."

Playbook PM Sign up for our must-read newsletter on what's driving the afternoon in Washington. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Williams suggested the commission could be a something of a paper tiger, since it had no way to enforce its request for the voter records, criminal conviction data and partial social security numbers.

"You speak of its breadth and perhaps you're right on that, but it's potency seems to be very low," Williams said. "They seem to have no power to do anything more than request."

Judge Douglas Ginsburg also suggested the privacy impact might be very limited since the request from commission vice chair and Kansas Secretary of State Kris Kobach sought only information available under state public records laws.

"The information requested is already publicly available," Ginsburg said.

Rotenberg countered that requests for such data often involve "quite elaborate" requirements that the commission may be bypassing. The privacy advocate also pointed to alleged Russian hacking of U.S. voter registration systems last year as evidence of the sensitivity of the information.

"This nation does face a crisis of data breaches and identity theft. We open the paper every day and we read about the improper breach of personal data," Rotenberg said. "This data, voter data is the most sensitive data in our form of government and we know on the record that it was also the target of a foreign adversary during the 2016 election."

After Rotenberg mentioned that the commission's initial system for submitting data wasn't secure, Ginsburg said EPIC provided a service by highlighting that.

"Thank you for pointing that out to the agency," Ginsburg said with a chuckle.

Justice Department attorney Daniel Tenny sought to capitalize on the judges' skepticism about how the lack of the privacy assessment had interfered with EPIC's operations.

"EPIC is not injured," Tenny insisted. "This isn't fundamentally a disclosure statute. ...This is much more in the category of generalized grievance ...They're just not the proper plaintiffs here."

The third judge on the panel, Karen Henderson, was less vocal in the arguments. However, she suggested that any injury to EPIC might be "self-inflicted."

A district court judge found that EPIC did have standing to pursue the issue, but that the advisory commission was not an agency for purposes of the 2002 law, so had no obligation to produce a privacy assessment.

Trump issued an executive order creating the commission in May in an apparent bid to vindicate his eye-popping claim made days after he took office that between 3 million and 5 million people voted illegally in last year's election. The panel has met with significant resistance from voting rights groups and liberal activists. It has also been on the receiving end of at least eight lawsuits, including the one argued Tuesday.

EPIC's appeal drew an unusually conservative panel. All three judges are Republican appointees. Henderson was appointed by President George H.W. Bush, while Williams and Ginsburg were both appointed by President Ronald Reagan.