[EL] Hacking of government records

[Jeff Hauser]

And American tax returns have been public before without hacking; true,
rich people didn't like it, but it was likely to burgeoning inequality
(incipient Gilded Age/pre-Depression "Roaring 20s") that the rich were able
to beat back transparency:
https://www.atlasobscura.com/articles/in-1924-trump-wouldnt-have-had-a-choice-whether-to-release-his-tax-bills

On Sun, Jun 27, 2021 at 1:50 PM Aprill, Ellen <ellen.aprill at lls.edu> wrote:

> In another context, I was recently reminded that, in 2015, hackers gained
> access to more than 700,000 federal tax returns:
>
> "Cyber hack got access to over 700,000 IRS accounts"
> https://amp.usatoday.com/amp/80992822
>
> This IRS hack did not make it into record of case or, to my recollection,
> any of the briefs (including the amicus brief to which I was a party)
>
> Ellen
>
> --------
> Ellen P Aprill
> John E Anderson Professor of Tax Law
> Loyola Law School
> Los Angeles. CA
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Jeff Hauser <jeffhauser at gmail.com>
> *Sent:* Sunday, June 27, 2021 10:22:59 AM
> *To:* Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] (no subject)
>
> "tax returns filed with the IRS, which are among the most sensitive
> documents filed with the government."
>
> The idea that documents about economic activity could ever be among "the
> most sensitive documents filed with the government" turns Carolene Products
> Footnote 4 on its head. HHS and the VA deal with vastly more
> sensitive info, as does OPM, FBI, DHS, and several other agencies.
>
> Tax returns are presumptively public in Pakistan, Norway, Finland, and
> Sweden. And they should be public in the United States. Taxes are dues paid
> on how one benefits from the existence of society.
>
> And comparing the power of apartheid southern governments (run by
> defenders of lynching) to repress the NAACP to... mean tweets and boycotts
> powered by social media? Not seeing it.
>
> On Sun, Jun 27, 2021 at 1:04 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:
>
> Disclosure Law in a Toxic Political Culture: The Impending Americans for
> Prosperity v. Bonta Decision
>
> Posted on June 27, 2021 9:56 am <https://electionlawblog.org/?p=122871> by
> Richard Pildes <https://electionlawblog.org/?author=7>
>
> That’s the way I would frame the big-picture perspective on this case.
> The major precedents on when state demands for disclosure of a group’s
> donors violate the First Amendment’s protections for freedom of association
> (outside the campaign-finance context) come from earlier eras.  More
> specifically, many of those cases involve attempts by Southern states in
> the 1950s and 1960s to force disclosure of donors to the NAACP.  At times,
> those laws were even clearly targeted at the NAACP.  Given the risks of
> reprisals against those donors, in that context, the Court struck these
> forced-disclosure laws down.  The risk of reprisal was quite specific, and
> the Court rightly understood the risk donors to the NAACP faced.  Few other
> organizations faced similar risks from state-mandated disclosure of donors.
>
> The California law in this case is a general law and is clearly not
> targeted at any specific group.  But in today’s political culture, the
> Court is realistic enough to realize, as oral argument demonstrated, that
> the risks of economic or other reprisals against donors to a broader range
> of groups is greater than in earlier decades.  Because cultural issues are
> so much more central to politics, and so polarizing, groups dealing with
> issues ranging from religion, to education, to sexual-orientation, and many
> other areas are at the center of intense political conflict (the
> animal-rights group, PETA, filed a brief in the case).  Not only is the
> political culture more punitive, but the internet and social media make it
> far easier to get access to sensitive information and to mobilize tactics,
> including various forms of reprisal, against donors to groups perceived to
> be controversial.  On top of that, politically motivated leaking of
> information disclosed to the government, and required to be held
> confidentially, has become more common.  It will be interesting to see if
> any of the opinions make reference to the recent disclosure to Pro Publica
> of tax returns filed with the IRS, which are among the most sensitive
> documents filed with the government.
>
> Indeed, Justice Sotomayor went even further at argument to comment that
> anything can be hacked these days, suggesting that even without intentional
> leaks, sensitive private information filed with the government is at risk
> of being exposed.  And to add to the mix, a central aspect of the case is
> the incompetence of California’s government, which inadvertently exposed
> vast amounts of the charities’ donor-disclosure information that was
> supposed to be available only to the government.
>
> There are many significant, intriguing doctrinal issues in the case.  One
> thing I’ll be looking for is how each of these issues is affected by our
> toxic political culture and these surrounding realities.  In many ways,
> this case is the Court’s first confrontation with applying the First
> Amendment to disclosure laws in the “modern” context of today’s vicious
> political realities.
>
>
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
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