Motion for Leave to File Amici Brief — Brooks v. Thomson Reuters Corporation (Dkt. 156, N.D. Cal. No. 3:21-cv-01418)

Record facts

U.S. District Court for the Northern District of California · No. 3:21-cv-01418-EMC · Doc. 156 · 2023-04-20 · Docket on CourtListener

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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
Laura Sullivan (Cal. Bar No. 220529) 
LAW OFFICE OF LAURA SULLIVAN 
423 South Estate Drive 
Orange, CA 92869 
Telephone: 714-744-15220 
Email: laurasullivan@laurasullivanlaw.com 
Jennifer Sarvadi (D.C. Bar. No. 490475) 
(pro hac vice application pending) 
HUDSON COOK, LLP 
1909 K Street NW, 4th Floor 
Washington, DC 20006 
Telephone: 202-715-2002 
Email: jsarvadi@hudco.com 
Attorneys for Proposed Amici,  
Software & Information Industry Association and the 
Coalition for Sensible Public Record Access 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
CAT BROOKS and RASHEED SHABAZZ, 
individually and on behalf of all others 
similarly situated,  
Plaintiffs, 
v. 
THOMSON REUTERS CORPORATION, 
Defendant. 
   Case No. 3:21-cv-01418-EMC 
AMICI CURIAE THE SOFTWARE & 
INFORMATION INDUSTRY 
ASSOCIATION AND THE COALITION 
FOR SENSIBLE PUBLIC RECORDS 
ACCESS’ MOTION FOR LEAVE TO 
FILE AMICI CURIAE BRIEF IN 
SUPPORT OF DEFENDANT; 
[PROPOSED] AMICI CURIAE BRIEF 
Judge: Hon. Edward M. Chen 
Date: April 20, 2023 
Time: 1:30 pm 
Room: Courtroom 5, 17th Floor 
The Software & Information Industry Association (“SIIA”) and Coalition for Sensible 
Public Records Access (“CSPRA”), together as putative amici, respectfully move for leave to file 
an amici curiae brief in support of Defendant Thomson Reuters Corporation’s Opposition to 
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 1 of 31

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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
Plaintiffs’ Motion for Class Certification, and for grounds state: 
1.
SIIA is a trade association for those in the business of information that represents
approximately 600 member companies, among them publishers of software and information 
products, including databases, enterprise and consumer software, and other products that combine 
information with digital technology. 
2.
SIIA member companies serve nearly every segment of society, including business,
education, government, healthcare, and consumers.  SIIA is dedicated to creating a healthy 
environment for the creation, dissemination, and productive use of information. 
3.
SIIA has an interest in this matter and qualifications to assist this Court as it
considers Plaintiffs’ motion because the availability of accurate public records is central to SIIA’s 
mission and many of its members rely on access to public records.  Moreover, Plaintiffs’ challenge 
to the Defendant’s business model has implications for other SIIA members and their businesses.  
4.
CSPRA is a non‐profit organization dedicated to promoting the principle of open
public record access to ensure individuals, the press, advocates, and businesses the continued 
freedom to collect and use the information made available in the public record for 
personal, governmental, commercial, and societal benefit.  
5.
Members of CSPRA are among the many entities that comprise a vital link in the
flow of information for these purposes and provide services that are widely used by constituents in 
every state.  Collectively, CSPRA members alone employ over 75,000 persons across the U.S.  The 
economic and societal activity that relies on entities such as CSPRA members is valued in the 
trillions of dollars and employs millions of people.     
6.
CSPRA has an interest in this matter and qualifications to assist this Court as it
considers Plaintiffs’ motion because the availability of complete and accurate public records is 
central to CSPRA’s belief that the economy and society depend on value-added information and 
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 2 of 31

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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
services that include public record data for many important aspects of our daily lives, and to 
CSPRA’s work to protect those sensible uses of public records.   
7.
SIIA and CSPRA wish to be heard on this issue because consumers, law enforcement, and
a wide range of businesses rely on data that flows in and through Defendant’s CLEAR product, and 
other similar products, to function and fulfill their every-day obligations. The brief submitted by 
SIIA and CSPRA will assist this Court in its understanding of the CLEAR product and the ways in 
which open access to public records benefits virtually every facet of society.  
8.
SIIA and CSPRA have read the parties’ briefs, and the attached amici brief is
necessary to fully and adequately address the issue of class certification. 
Accordingly, SIIA and CSPRA request that they be granted permission to file the attached 
amici brief. 
Dated: February 2, 2023 
Respectfully submitted, 
/s/ Laura Sullivan 
_________________________________ 
Laura Sullivan 
Attorney for Amici Curiae 
The Software & Information Industry Association, 
The Coalition for Sensible Public Records  
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 3 of 31

 
 
________________________________________________________________________________________________________________ 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION INDUSTRY 
ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
  
 
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TABLE OF CONTENTS 
STATEMENT OF INTEREST …………………………………………….………...………………….. 1 
SUMMARY OF THE ARGUMENT …………………………………………………………………… 2  
ARGUMENT…………………………………………………………………………………………….. 4 
 
I. VARYING BENEFITS TO THE PUBLIC THAT ARE UNSUITABLE FOR CLASSWIDE 
ADJUDICATION………………………………………………………………………….…………….. 4 
 
II. THE COLLECTION AND SHARING OF PUBLICLY AVAILABLE INFORMATION IS 
PERMITTED UNDER A VARIETY OF FEDERAL AND STATE LAWS DEPENDING ON THE 
PARTICULAR CIRCUMSTANCES……………………………………………………………………. 8 
A. The California Consumer Privacy Act Permits the Collection, Use, and Sharing of Public 
Domain Data…………………………………………………………………………………. 9 
B. California Law Does Not Include the Right to Be Forgotten Nor Does it Require Consent 
Before Data Collection……………………………………………………………………... 11 
C. The DPPA Preempts State Laws that Prevent Aggregators from Using Covered Data for 
Permitted Purposes…………………………………………………………………………. 14 
D. Data Aggregators Like Defendant Have a Constitutional Right to Collect, Maintain, and Sell 
This Information……………………………………………………………………………. 15 
III. THE PUTATIVE CLASS MEMBERS LACK STANDING………………………………. 17 
 
IV.  CLASS MEMBERS’ CLAIMS CANNOT SATISFY THE COMMONALITY 
REQUIREMENTS NECESSARY FOR CLASS CERTIFICATION………………………………….. 19 
 
V.  CERTIFICATION OF A CLASS ON THIS NOVEL THEORY WILL HAVE 
DETRIMENTAL IMPACTS ON CALIFORNIA CONSUMERS…………………………………….. 21 
CONCLUSION…………………………………………………………………………………………. 24 
 
 
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 4 of 31

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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
TABLE OF AUTHORITIES 
Cases 
CBS, Inc. v. Block, 42 Cal. 3d 646 P.2d 470 (1986) ....................................................................... 5 
Farmer v. Phillips Agency, Inc., 285 F.R.D. 688 (N.D. Ga. 2012) .............................................. 20 
Google Spain SL v. Agencia Española de Protecciòn de Datos (AEPD) and Mario Costeja 
Gonzales, 2014 E.C.R. 317 ..................................................................................................... 11 
Howard v. Criminal Info. Svc., p. 889 ................................................................................ 7, 14, 15 
Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) .................................................... 19 
NASA v. Nelson, 562 U.S. 134 (2011) ............................................................................................ 7 
Roth v. Guzman, 650 F.3d 603 (6th Cir. 2011) ....................................................................... 14, 15 
Seattle Times Co. v. Rhinehard, 467 U.S. 20 (1984) .................................................................... 15 
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .............................................................. 15, 16, 17 
Soutter v. Equifax Info. Servs., LLC, 498 F. App’x 260 (4th Cir. 2012) ...................................... 19 
State of Okl. ex rel. Oklahoma Dep't of Pub. Safety v. United States, 161 F.3d 1266 (10th Cir. 
1998) ....................................................................................................................................... 15 
Taylor, et al., v. Axciom Corp., et al.,  612 F.3d 325 (5th Cir. 2010) ............................ 7, 14, 15, 22 
Trans Union, LLC v. Ramirez, 141 S. Ct. 2190 (2021) ...................................................... 3, 18, 21 
U.S.W., Inc. v. F.C.C., 182 F.3d 1224 (10th Cir. 1999)................................................................ 16 
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .................................................................. 19 
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................ 7, 16 
Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180 (9th Cir.)......................................................... 20 
Statutes 
15 U.S.C. § 1681g ......................................................................................................................... 20 
15 U.S.C. §§ 1681 et seq........................................................................................................... 8, 22 
18 U.S.C. § 2725 ........................................................................................................................... 14 
18 U.S.C. §§ 2721 et seq............................................................................................... 8, 10, 14, 22 
Cal. Bus. & Prof. Code § 17204 ................................................................................................... 17 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
Cal. Bus. & Prof. Code § 22581 ............................................................................................. 16, 17 
Cal. Civ. Code § 1798.105 ............................................................................................................ 16 
Cal. Civ. Code § 1798.140 ...................................................................................................... 13, 14 
Cal. Civ. Code § 1798.145 ...................................................................................................... 14, 15 
Cal. Civ. Code § 7921.000 ............................................................................................................ 10 
Cal. Civ. Code §§ 1798.100 et seq................................................................................................ 12 
Cal. Gov. Code §§ 7920.000 et seq. ............................................................................................. 10 
Cal. Penal Code § 11105 ............................................................................................................... 21 
Other Authorities 
Andrew J. Pincus, Miriam R. Nemetz, and Eugene Volokh, Invalidity Under the First 
Amendment of the Restrictions on Dissemination of Accurate, Publicly Available 
Information Contained in the California Consumer Privacy Act of 2018, 
https://fisd.net/wp-content/uploads/2021/06/Memo-re-CCPA-FINAL.pdf ........................... 12 
Brooke Barnett, Use of Public Record Databases in Newspaper and Television Newsrooms, 
53 Fed. Comm. L.J. 557 (2001) ................................................................................................ 5 
Comments of Gail H. Littlejohn, Vice President, Gov't Affairs, & Steven M. Emmert, Dir., 
Gov't Affairs, Reed Elsevier Inc., LEXIS-NEXIS Group (Mar. 31, 2000), available at 
http:// www.sec.gov/rules/proposed/s70600/littlej1.htm; see also Financial Information 
Privacy Act: Hearings on H.R. 4321 Before the H. Comm. on Banking and Financial 
Services, 105th Cong. 100 (1998) (statement of Robert Glass) ................................................ 7 
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies 
Appropriations for Fiscal Year 2000: Hearings on H.R. 2670/S.1217 Before Subcomm. 
for the Dep'ts of Commerce, Justice, and State, the Judiciary, and Related Agencies of the 
S. Comm. on Appropriations, 106th Cong. 280 (1999) ............................................................ 6 
Gary E. Clayton, The Public’s Records: Open Access vs. Personal Privacy. 
https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/the_publics_records.pdf. ... 5 
Grace Park, The Changing Wind of Data Privacy Law: A Comparative Study of the European 
Union's General Data Protection Regulation and the 2018 California Consumer Privacy 
Act, 10 UC Irvine L. Rev. 1455, 1479 (2020)......................................................................... 11 
Robert M. Jarvis, John B. West: Founder of the West Publishing Company, 50 Am. J. Legal 
Hist. 1 *5 (2010) ....................................................................................................................... 5 
Rules 
Federal Rule of Appellate Procedure 29 ......................................................................................... 1 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
Regulations 
Regulation 2016/679 (GDPR), Art. 17 ......................................................................................... 12 
Legislative Material 
2018 Cal. Legis. Serv. Ch. 55 (A.B. 375)…………………………………………………. 13 
  
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1 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
The Software & Information Industry Association, together with the Coalition for Sensible 
Public Records Access (collectively, “amici”), respectfully submit this brief in support of 
Defendant’s Brief in Opposition to Plaintiffs’ Motion for Class Certification.1   
STATEMENT OF INTEREST 
The Software & Information Industry Association (“SIIA”) is the principal trade association 
for those in the business of information. SIIA represents approximately 600 member companies, 
among them publishers of software and information products, including databases, enterprise and 
consumer software, and other products that combine information with digital technology. SIIA 
member companies serve nearly every segment of society, including business, education, 
government, healthcare, and consumers. It is dedicated to creating a healthy environment for the 
creation, dissemination, and productive use of information. Many of its members rely on access to 
public records.  
CSPRA is a non‐profit organization dedicated to promoting the principle of open public 
record access to ensure individuals, the press, advocates, and businesses have the continued 
freedom to collect and use the information made available in the public record for 
personal, governmental, commercial, law enforcement, and societal benefit. Members of CSPRA 
are among the many entities that comprise a vital link in the flow of information for these purposes 
and provide services that are widely used by constituents in every state. Collectively, CSPRA 
members alone employ over 75,000 persons across the U.S.  The economic and societal activity 
that relies on entities such as CSPRA members is valued in the trillions of dollars and employs 
 
1 Consistent with Federal Rule of Appellate Procedure 29(a)(2), amici represent that they requested 
Plaintiffs’ consent to the filing of this brief, but their consent was not obtained or refused. Further 
consistent with Federal Rule of Appellate Procedure 29(a)(4)(E), amici represent that no party or 
party’s counsel has authored this brief, in whole or in part, or contributed money intended to fund 
the preparation or submission of this brief.  Further, no person other than amici and their non-party 
members contributed money that was intended to fund the preparation or submission of this brief. 
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 8 of 31

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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
millions of people.  CSPRA has an interest in this case and qualifications to assist this Court 
because the availability of complete and accurate public records is central to CSPRA’s belief that 
the economy and society depend on value-added information, and services that include public 
record data for many important aspects of our daily lives, and to CSPRA’s work to protect those 
sensible uses of public records and the many public benefits that flow from their public and private 
use.  
In essence, Plaintiffs have lodged an attack on the core business activities of amici’s 
members which are data aggregators, like Defendant, who collect and share publicly available 
information on consumers.  While it is currently unclear as to exactly which activity/activities 
Plaintiffs assert violate California law under this novel theory, what is clear is that a ruling in favor 
of Plaintiffs could lead to disastrous results for government, businesses, and consumers alike.  
Amici are uniquely qualified to assist this Court in understanding the larger data ecosystem of which 
Defendant is a part, the comprehensive data privacy regime in which these products are offered for 
sale, and the failure of the putative class members to establish standing, or demonstrate sufficient 
commonality of putative plaintiffs and claims to satisfy Rule 23 class certification requirements. 
Amici appreciate the opportunity to provide this information to the Court.  
SUMMARY OF THE ARGUMENT 
Class certification in this case is not appropriate because most of the information in products 
like Defendant’s is sourced from publicly available sources that provide huge benefits, not harms, 
to California consumers and businesses alike.  Amici’s members publish information to public and 
private entities to serve both commercial and public interests.  California, while a leader in 
consumer privacy, has specifically adopted laws to permit open access to public record information, 
and in enacting the nation’s first comprehensive data privacy law, carved out from its prohibitions 
the very data used by amici’s members in their products and services.  The California General 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
Assembly, and Congress, have evaluated the degree to which such information may be accessed, 
collected, and used, balancing the interests of consumer privacy against legitimate business and 
public use cases, resulting in, among other laws, the California Consumer Protection Act/California 
Privacy Rights Act, the California Sunshine Act, the federal Driver’s Privacy Protection Act, the 
Gramm-Leach Bliley Act, and the Fair Credit Reporting Act (hailed as the first federal consumer 
privacy law).  
As discussed below, each of these laws permit companies like the Defendant to collect, use, 
and share publicly available information, and other information on consumers, without first 
requiring the company to obtain the consumer’s consent, and without compensating the consumer 
for such use.  Moreover, the fact that California has enacted this comprehensive data regulation 
regime, and having considered whether to include a right to be forgotten by all persons who 
maintain consumer data should be part of that scheme, evinces the fact that no such right exists in 
the common law in California, and further, that California has weighed the risks and benefits of 
such a right and decidedly rejected that one should exist.   
As a result, to the extent that the information maintained by Defendant about consumers is 
permitted to be collected and published without first obtaining consumer consent, and without 
requiring remuneration to consumers, no class may be certified containing consumers on whom 
such data is maintained as they have not been suffered concrete harm sufficient to confer Article 
III standing to sue.  Moreover, the Supreme Court in Trans Union LLC v. Ramirez has made clear 
that standing requires that the information maintained both have a negative implication for or about 
the consumer, but also must have been shared with a third party in order for the consumer to have 
suffered any cognizable harm.  The ensuing slog of mini-trials that would necessarily have to be 
undertaken to parse the millions of data points and assess their redressability make class treatment 
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4 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
of these issues impracticable.  Such mini-trials would not only overtake the larger matter but 
demonstrate why these consumers do not meet the commonality requirements of Rule 23.   
Finally, amici urge this Court to consider the disastrous implications on consumers and 
business alike inflicted by a finding that consumers are entitled to monetary relief.  Applications 
for housing and employment would come screeching to a halt, effectively delaying consumers’ 
ability to find housing and jobs.  Applications for mortgages would suddenly take far longer, and 
likely cost more, should every transaction require a personal trip by a title examiner to the 
courthouse to search for, and retrieve, relevant title records.  And the courts and other state agencies 
might suffer the most, as every single potential user of public record information, department of 
motor vehicle records, professional and medical licensing boards, bar associations and others would 
experience a massive influx of researchers clamoring for attention, and likely, do not have sufficient 
resources to handle the flood.  For all of these reasons, and those articulated by Defendant, amici 
respectfully request that this Court deny the Plaintiffs’ Motion to Certify the Class in this case.  
ARGUMENT 
I. 
VARYING BENEFITS TO THE PUBLIC THAT ARE UNSUITABLE 
FOR CLASSWIDE ADJUDICATION. 
Today, the United States runs on data.  Americans’ disparate daily lives are made better by 
timely and efficient access to varying information, whether accessed via their phone or home 
computer, or even through a physical newspaper.  The U.S. economy depends on information made 
available by data aggregators in a variety of sectors. Amici’s customers include both private sector 
and government clients, including arms of the state of California. 
This is the same data and information industry in which Defendant Thomson Reuters 
operates.  That ecosystem has been in existence for decades, and amici’s members play various 
roles within it: offering products that compete with Defendant’s CLEAR product (the “Product” or 
“CLEAR”); offering technology platforms that connect data publishers to government and public 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
interest users nationwide.  Publishers in this industry collect information from sources similar—if 
not identical to—those described by Defendant, including government agencies who affirmatively 
share court and other records of the agency (the courts, departments of motor vehicles, departments 
of corrections, real property records, etc.), individuals who have made their content available 
voluntarily (whether online or otherwise), and other third-party sources.2  While data sharing is 
now ubiquitous in the modern gig-economy, it has been commonplace for most of modern history. 
For example, courthouse records have been commercially collected and published for nearly 150 
years.3 
Open access rights to public record information have been referred to as “a cornerstone of 
American democracy” and viewed as “central to electing and monitoring public officials, 
evaluating government operations, and protecting against secret government activities.”4 More 
specifically, “[t]he democratic process relies on open access to government records. An informed 
citizenry is crucial to a functioning democratic government, and access to information about the 
workings of the government is key to that process.”5 The Supreme Court of California has similarly 
recognized the inherent importance of open access to public records: “[i]mplicit in the democratic 
process is the notion that government should be accountable for its actions. In order to verify 
accountability, individuals must have access to government files. Such access permits checks 
against the arbitrary exercise of official power and secrecy in the political process.”6  
 
2 See Defendant Thomson Reuter’s Opposition to Motion to Certify Class, pp. 2-3. 
3 See  Robert M. Jarvis, John B. West: Founder of the West Publishing Company, 50 Am. J. Legal 
Hist. 1 *5 (2010).  
4 Gary E. Clayton, The Public’s Records: Open Access vs. Personal Privacy. 
https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/the_publics_records.pdf. 
5 Brooke Barnett, Use of Public Record Databases in Newspaper and Television Newsrooms, 53 
Fed. Comm. L.J. 557, 558–59 (2001). 
6 CBS, Inc. v. Block, 42 Cal. 3d 646, 651, 725 P.2d 470, 473 (1986).  
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6 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
The California General Assembly (the “Legislature”) recognized the importance that open 
access to public records plays when it adopted the California Public Records Act.7 In so adopting 
the California Public Records Act, “the Legislature, mindful of the right of individuals to privacy, 
[found] and declar[ed] that access to information concerning the conduct of the people’s business 
is a fundamental and necessary right of every person in this state.”8 The Legislature thus recognized 
that the right of Californians to access public records outweighed Californians’ limited right to 
privacy, to the extent any exists with respect to public record information.   
The real value in these data services, however, extends far beyond economic alone; they go 
to our core needs as a civilized, functioning society, and the benefits vary in numerous ways.  Users 
of this information need timely and efficient access to this data for a variety of purposes, including, 
but not limited to: 
• Law enforcement.  Federal and local law enforcement agencies rely on the data 
contained in the Product, and other similar products, to locate suspects of 
criminal activity, as well as victims and witnesses to crimes.  Agencies like the 
Federal Bureau of Investigation, rely on these types of products because they 
“[allow] FBI investigative personnel to perform searches from computer 
workstations and eliminates the need to perform more time consuming manual 
searches of federal, state, and local records systems, libraries, and other 
information sources.”9 
• Fraud Prevention. Identity theft and other forms of fraud are a constant threat to 
consumers and businesses alike.  Companies often leverage public record data 
to authenticate consumers in order to prevent identity theft and fraud.  This can 
include an insurance company obtaining data from the DMV or a vendor 
reselling the same, in order to authenticate a consumer’s true identity and risks. 
This can also include asking “out of wallet” questions, which are those a 
fraudster would be unlikely to know, such as “Which of the following five 
addresses is a past home address of yours?” or “Which of the following cars did 
 
7 Cal. Gov. Code §§ 7920.000 et seq. 
8 Cal. Civ. Code § 7921.000. 
9 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies 
Appropriations for Fiscal Year 2000: Hearings on H.R. 2670/S.1217 Before Subcomm. for the 
Dep'ts of Commerce, Justice, and State, the Judiciary, and Related Agencies of the S. Comm. on 
Appropriations, 106th Cong. 280 (1999). 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
you once own?” The answers to these questions could be found in state real 
property records or publicly available Uniform Commercial Code filings. 
• Child support enforcement.  State and local agencies use data like that contained 
in the Product to locate individuals who are delinquent in paying their child 
support obligations.  The Association for Children for Enforcement of Support 
reports that public record information provided through commercial vendors 
helped locate over 75 percent of the “deadbeat parents” they sought.10  
• Credit extensions.  Reliable and prompt access to public records like deeds and 
DMV records, are necessary to facilitate an active and competitive credit market, 
and to facilitate creditors’ securitization of collateral in support of such credit 
extensions. 
• Insurance.  Insurers of all shapes and sizes access such data each day to 
underwrite policies, and pay claims.  
• Product Safety.  Companies use this information to provide consumers and auto 
dealers with a vehicle's accident history, alerting consumers to whether they are 
potentially buying a “lemon,” or to put both dealers and consumers on notice 
that the vehicle is subject to a safety recall.11  
• Tax Compliance. Governments use real estate records like those at issue in this 
case to detect tax avoidance.   
• News-gathering and Publishing.  Newspaper companies regularly obtain the 
Information used in these products to report on crimes, detect possible 
corruption or conflicts of interest, and publish stories involving the operation or 
safety of motor vehicles.12  
• Employment and tenant screening. While this Product is not a consumer report 
itself, many consumer reporting agencies use public record data like that in the 
Product to prepare consumer reports for employment and tenant screening. The 
use of this information helps employers and others ensure a “competent, reliable 
workforce.”13  
 
10 Comments of Gail H. Littlejohn, Vice President, Gov't Affairs, & Steven M. Emmert, Dir., Gov't 
Affairs, Reed Elsevier Inc., LEXIS-NEXIS Group (Mar. 31, 2000), available at http:// 
www.sec.gov/rules/proposed/s70600/littlej1.htm; see also Financial Information Privacy Act: 
Hearings on H.R. 4321 Before the H. Comm. on Banking and Financial Services, 105th Cong. 100 
(1998) (statement of Robert Glass). 
11 See Taylor v. Acxiom Corp., 612 F.3d 325 (5th Cir. 2010). 
12 See Howard v. Criminal Info. Svc., 654 F.3d 887, 889 (9th Cir. 2011).   
13 NASA v. Nelson, 562 U.S. 134, 150 (2011). 
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8 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
Individuals, as well as government agencies and commercial enterprises, depend on timely 
access to this information, and its predictable transmission forms the backbone of billions of dollars 
in commerce and multiple important decisions in people’s everyday lives.  For example, a parent 
searching for a private nanny may want to check state criminal records in the nanny’s prior home 
state to assure herself that the nanny is not a registered sex offender.  She may also want to 
investigate whether a day care facility she is considering as an alternative has been cited for child 
safety violations. Prior to moving a parent into an assisted living facility, an adult child may want 
to examine the government-issued health and safety reports in different states.  Timely access to 
this information helps consumers make informed decisions. Proclaiming a blanket prohibition 
against such use of data on a class-wide basis would be unjust and conceal the varying prosocial 
benefits of data sharing that can only be borne out by individual analysis of each data transaction.  
II. 
THE COLLECTION AND SHARING OF PUBLICLY AVAILABLE 
INFORMATION IS PERMITTED UNDER A VARIETY OF FEDERAL AND 
STATE LAWS DEPENDING ON THE PARTICULAR CIRCUMSTANCES. 
California has exhaustively regulated activity around the use of information, first through a 
comprehensive process in enacting the California Consumer Privacy Act,14 and then via ballot 
initiative in the California Privacy Rights Act.15 These laws also take into account (as they must), 
the federal Drivers Privacy Protection Act16 and the Fair Credit Reporting Act,17 among others.  
Each of these laws reflects a careful balancing of consumers’ right to privacy against the needs of 
third parties to access and use public information. Many State legislatures and Congress have 
undertaken the responsibility of reconciling those competing interests, creating laws to regulate the 
 
14 Cal. Civ. Code §§ 1798.100 et seq. (the “Privacy Act”). 
15 California Privacy Rights Act of 2020 (modifying California's data protection law) (the 
“CRPA”). 
16 18 U.S.C. §§ 2721 et seq. (the “DPPA”).  
17 15 U.S.C. §§ 1681 et seq. 
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9 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
data in such a way as each has seen fit (supported by constituents who elected their representatives 
based on such efforts).  This exhaustive regulation not only dooms the Plaintiffs’ claims, it makes 
certification of a class impossible, as determining whether the business practices of Defendant 
comply with these varied laws on a class-wide basis would be inappropriate. 
A. 
The California Consumer Privacy Act Permits the Collection, Use, and Sharing of 
Public Domain Data.  
In 2020, via Proposition 24, Californians adopted the CPRA, which expanded the Privacy 
Act, and is sometimes referred to as “CCPA 2.0.”18 In the face of this comprehensive statutory 
regime, Plaintiffs’ novel theory that a company may only collect, maintain, and/or share the 
information used in the Product with the consumer’s prior express consent or are somehow required 
to compensate individuals, must fail, and a class should not be certified. 
The CCPA does not regulate the collection and sharing of information obtained from third 
parties; instead, it regulates the maintenance and sharing of information collected directly from 
consumers by restricting the sharing (including sale) of “personal information,” which is defined 
to include information  “that identifies, relates to, describes, is reasonably capable of being 
associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or 
household.”19  There is a wealth of data collected, sold, and shared by data providers that are not 
“personal information” under the CCPA. 20 Importantly, “personal information” does not include: 
publicly available information or lawfully obtained, truthful information that 
is a matter of public concern. For purposes of this paragraph, “publicly 
available” means: information that is lawfully made available from federal, 
state, or local government records, or information that a business has a 
reasonable basis to believe is lawfully made available to the general public by 
the consumer or from widely distributed media; or information made 
 
18 The CCPA and the CPRA are collectively referred to herein as the “CCPA.”  
19 Cal. Civ. Code § 1798.140(v)(1). 
20 See Cal. Civ. Code § 1798.140(v)(1).  
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10 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
available by a person to whom the consumer has disclosed the information if 
the consumer has not restricted the information to a specific audience.21  
As detailed below, much of the information that flows into products like CLEAR are obtained 
directly from federal, state, and local government records, and/or are those which companies have 
a reasonable basis to believe is lawfully made available to the general public by the consumer or 
from widely distributed media (such as a traditional white pages telephone directory).  As a result, 
that data is not subject to CCPA.   
The Legislature also expressly exempted information regulated by several federal statutes 
that might otherwise meet the definition of personal information. For example, furnished 
information provided to a consumer reporting agency (“CRA”) is exempt from the CCPA 
requirements.22 The statute also does not apply to “personal information collected, processed, sold, 
or disclosed” pursuant to the Gramm-Leach Bliley Act,23 and, for the most part, “personal 
information collected, processed, sold, or disclosed pursuant to the Driver’s Privacy Protection 
Act.”24  These three exemptions, plus the exclusion from the definition, cover much of the 
information used in the Product, and similar products offered by, and used by, amici’s members 
and express a legislative intent that transmission of such information be exempt from ad hoc 
interference. The exemption of certain classes of information dovetails with the manner in which 
California’ legislature tailored consumer rights, including do-not-sell and deletion. 
 
21 Cal. Civ. Code § 1798.140(v)(2) (emphasis added).   
22 Cal. Civ. Code § 1798.145(d)(1) (“activity involving the collection, maintenance, disclosure, 
sale, communication, or use of any personal information bearing on a consumer's creditworthiness, 
credit standing, credit capacity, character, general reputation, personal characteristics, or mode of 
living by a consumer reporting agency,… by a furnisher of information … who provides 
information for use in a consumer report, … and by a user of a consumer report.”) (referred to as 
“FCRA Purposes”).  
23 Cal. Civ. Code § 1798.145(e) (referred to as “GLB Purposes”). 
24 Cal. Civ. Code § 1798.145(f) (“This title shall not apply to personal information collected, 
processed, sold, or disclosed pursuant to the Driver's Privacy Protection Act of 1994 ( 18 U.S.C. 
Sec. 2721 et seq. ).  This subdivision shall not apply to Section 1798.150.”) (referred to as “DPPA 
Purposes”). 
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11 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
B. 
California Law Does Not Include the Right to Be Forgotten Nor Does it Require 
Consent Before Data Collection. 
The definitions and exemptions above are key to the question of class certification because 
the novel theory presented by Plaintiffs here presumes a right exists under the common law that 
consumers must first grant permission to the collection, maintenance, or use of publicly available 
data, and/or are entitled to compensation for its collection, maintenance, or use.25  The work of the 
Legislature in enacting the CCPA debunks the myth that these rights exist under the common law.  
Plaintiffs implicitly argue that they have a general “right to be forgotten” under California 
law, a concept espoused in a 2014 European Court of Justice case – Google Spain SL v. AEPD and 
Coteja Conzales.26 “Simply put, the core provision of the right to be forgotten is that ‘if an 
individual no longer wants his personal data to be processed or stored by a data controller, and if 
there is no legitimate reason for keeping it, the data should be removed from their system.’”27 
However, California law does not universally grant Californians a “right to be forgotten.” Where 
the Legislature has chosen to give such a right, it has enacted specific laws to grant such a right. 28  
 
25 It is entirely unclear which business practice, precisely, Plaintiffs challenge as unlawful. In the 
First Amended Complaint, Plaintiffs ask questions such as “Does Thomson Reuters seek the class 
members’ consent or compensate them before making their personal information available for sale 
through CLEAR?” First Amended Complaint paragraph 77(a).  This question raises more questions 
then it answers as to the nature of the alleged unfair practice.  Is it the act of collecting the data at 
all that is an alleged violation?  Is it the failure to obtain consent prior to collecting the information, 
or prior to “making the data available for sale,” or both?  Is the fact that the data is maintained in a 
database that is “made available for sale” enough to impart liability, or does the data have to have 
actually been shared for a claim to exist?  The claims are not well pled, and such vagueness concerns 
amici’s members given their possible engagement in one or more of such practices. 
26 See generally Case C-131/12, Google Spain SL v. Agencia Española de Protecciòn de Datos 
(AEPD) and Mario Costeja Gonzales, 2014 E.C.R. 317.  
27 Grace Park, The Changing Wind of Data Privacy Law: A Comparative Study of the European 
Union's General Data Protection Regulation and the 2018 California Consumer Privacy Act, 10 
UC Irvine L. Rev. 1455, 1479 (2020). 
28 See e.g., Cal. Bus. & Prof. Code § 22581 (which permits California minors to “request and obtain 
removal of, content or information posted on the operator’s Internet Web site, online service, online 
application, or mobile application by the user” regardless of its source).  In contrast, the CCPA 
gives California consumers a “right to deletion” but only of non-exempt personal information 
“which the business has collected from the consumer.” Cal. Civ. Code § 1798.105(a) (emphasis 
added). 
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12 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
In fact, the drafters of the CCPA considered a broader-sweeping privacy rule,  initially 
modeling the first version of CCPA after the European GDPR, which confers a right to be 
forgotten.29 The GDPR grants data subjects the right to obtain “erasure of personal data concerning 
him or her without undue delay,” including where the personal data is no longer necessary for the 
purposes for which it was collected or processed, where the data subject has withdrawn consent for 
data processing, and where the personal data has been unlawfully processed.30 California flatly 
rejected this approach, instead choosing only to grant consumers the right to request deletion of 
certain types of data collected directly from the consumer.31 These changes to the legislation were 
made not just because of the policy benefits, but also to comply with the demands of the First 
Amendment. 32   
In any event, if the common law already conferred a right on consumers to require erasure 
of information that data aggregators like Defendant maintains, California would not have had to 
consider legislation expressly granting that right (or the right of a minor to demand information 
about them be removed,33 etc.).   
 
29 Regulation 2016/679 (GDPR), Art. 17(1). 
30 Id. 
31 Cal. Civ. Code § 1798.105(a). 
32 Andrew J. Pincus, Miriam R. Nemetz, and Eugene Volokh, Invalidity Under the First 
Amendment of the Restrictions on Dissemination of Accurate, Publicly Available Information 
Contained 
in 
the 
California 
Consumer 
Privacy 
Act 
of 
2018, 
https://fisd.net/wp-
content/uploads/2021/06/Memo-re-CCPA-FINAL.pdf. 
33 See Cal. Bus. & Prof. Code § 22581(“An operator of an Internet Web site, online service, online 
application, or mobile application directed to minors or an operator of an Internet Web site, online 
service, online application, or mobile application that has actual knowledge that a minor is using 
its Internet Web site, online service, online application, or mobile application shall do all of the 
following: (1) Permit a minor who is a registered user of the operator's Internet Web site, online 
service, online application, or mobile application to remove or, if the operator prefers, to request 
and obtain removal of, content or information posted on the operator's Internet Web site, online 
service, online application, or mobile application by the user.”).  
 
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13 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
California law is thereby unambiguous, and evinces zero legislative intent to proscribe or 
regulate the collection, maintenance, sharing, or use of information, other than personal 
information; or the collection, maintenance, sharing, and/or use of personal information for GLB 
Purposes, DPPA Purposes and FCRA Purposes; or impose a requirement that any business engaged 
in the use of such information or for such purposes first obtain consumer’s consent before doing 
so.  No personal right of publicity can exist in public data as it is not owned or controlled by the 
subject of the data but is in fact, owned and controlled by the public and managed by their elected 
and appointed representatives and made available according to public records laws of California.  
To say one can restrict the use of public data because they have not been compensated or consented 
presents a wholly incongruous misrepresentation of the very idea of public records and applicable 
law. 
In the face of this comprehensive approach to protecting consumers’ right to privacy and 
the right to control information, as amended by a vote of the citizens of California, there can be no 
claim related to activities that are intentionally permitted by carve-out from the CCPA, including 
the sale of services like the Product. 34 For the purpose of considering class certification, therefore, 
this Court will be required to examine the data at issue for each consumer and determine whether 
the collection and sharing of such information is expressly permitted by exemption, and over which 
the consumer lacks any right to demand deletion.  In such cases, there can be no harm, and thus no 
standing, for which relief could be granted, and class certification would be inappropriate.  
 
34 The Legislature could have, but did not, prohibit the collection, maintenance or sale of data as 
challenged in the First Amended Complaint, even though one of the primary purposes of the CCPA 
was to grant citizens “more control over their information.” CALIFORNIA CONSUMER 
PRIVACY ACT, 2018 Cal. Legis. Serv. Ch. 55 (A.B. 375). The Legislature stated “California 
consumers should be able to exercise control over their personal information, and they want to be 
certain that there are safeguards against misuse of their personal information. It is possible for 
businesses both to respect consumers' privacy and provide a high-level transparency to their 
business practices.”  Id. 
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14 
MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
C. 
The DPPA Preempts State Laws that Prevent Aggregators from Using Covered Data 
for Permitted Purposes. 
Fraud prevention tools, data verification, and other services, like the Product, often include 
information sourced from driver license records, access to which is regulated by the federal DPPA.  
Plaintiffs’ objection to the collection and resale of data regulated by the DPPA must fail, as the 
DPPA expressly contemplates that resellers such as Defendant may obtain, aggregate, and resell 
DPPA data.35  
Moreover, a series of cases raising legal challenges to data aggregators’ and individual 
companies’ rights to obtain, aggregate, and sometimes resell motor vehicle drivers’ “personal 
information” as defined by the DPPA36 have all failed in this Circuit, as well as the Fifth and Sixth 
Circuits.37  In Howard, the plaintiffs alleged that the defendants, which included a newspaper, a 
parking lot manager, and a consumer reporting agency, violated the DPPA by purchasing the data 
in bulk and “stockpiling” it for a future use.38  Similarly, the plaintiffs in Taylor sought a declaration 
that the defendant users, including CRAs, utility companies, insurance companies, retailers, 
publishers, and auto dealers, among others, were prohibited from obtaining the DPPA information 
in bulk - whether they intended to use the information itself at a later date, or they intended to resell 
the information to third parties.39  In each of these cases, the circuit courts found that the users did 
 
35 See 18 U.S.C. § 2721(c). 
36 “Personal information” under the DPPA includes individuals’ “name, address, telephone number, 
vehicle description, Social Security number, medical information, and photograph.”  18 U.S.C. § 
2725.  
37 Howard v. Criminal Info. Svc., 654 F.3d 887 (9th Cir. 2011); Taylor, 612 F.3d 325 (5th Cir. 2010); 
and Roth v. Guzman, 650 F.3d 603 (6th Cir. 2011), respectively. 
38 654 F.3d at 889. 
39 612 F.3d at 334. 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
not violate the DPPA’s permissible purpose requirements by obtaining the data in bulk for future 
use – whether internal or external.40 
To the extent the DPPA preempts state laws that are inconsistent with the DPPA’s rules 
regarding disclosure of this information,41 no state law claim may lie against Defendant, or any 
other data provider, who aggregates and resells DPPA “personal information” for a purpose 
permitted by the DPPA. Thus, any claim based on the collection and sharing of information 
regulated by the DPPA would fail, unless Thomson Reuters is proven to have shared the 
information with a third party who did not have a permitted purpose under the DPPA.  
D. 
Data Aggregators Like Defendant Have a Constitutional Right to Collect, Maintain, 
and Sell This Information. 
The valuable public service performed by the Defendant’s CLEAR database and similar 
kinds of information services are not a happy accident, but the direct result of constitutional design.  
Data aggregators have a right to access and use public record information and to communicate that 
information to third parties under the First Amendment.  The Supreme Court has held that the “right 
to speak is implicated when information [one] possesses is subjected to restrains on the way in 
which the information might be used or disseminated.”42 Thus, data companies that collect and 
maintain publicly available data have the right to communicate that information to third parties. 
Absent some law requiring them to obtain consent prior to doing so, which does not exist, the 
companies are not acting in violation of the law.  
In Sorrell, a case which the Court did not cite in its earlier decision denying plaintiff’s 
motion to dismiss, Vermont attempted to limit the sharing and use of certain medical prescriber 
 
40 Taylor, 612 F.3d at 340; Howard 654 F. 3d at 891; and Roth, 650 F.3d at 617-18.   
41 State of Okl. ex rel. Oklahoma Dep't of Pub. Safety v. United States, 161 F.3d 1266, 1269 (10th 
Cir. 1998). 
42 Sorrell v. IMS Health Inc., 564 U.S. 552, 568 (2011) (quoting Seattle Times Co. v. Rhinehard, 
467 U.S. 20, 32 (1984)). 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
information for marketing purposes (unless the prescriber first consented to the sharing).43  The 
information was permitted to be shared and sold so long as it was not for a marketing purpose.44  
The Supreme Court found that “[on] its face, Vermont’s law enacts content-and-speaker-based 
restrictions on the sale, disclosure and use of” the information, explaining that the “statute thus 
disfavors marketing, that is, speech with a particular content.  More than that, the statute disfavors 
specific speakers, namely pharmaceutical manufacturers.”45  The state defended the law on the 
basis that it was designed to promote public health interest, and to lower the costs of medical 
services.46  However, the Supreme Court held that the law did “not advance [those goals] in a 
permissible way.”  The Court explained: 
The State seeks to achieve its policy objectives through the indirect means of 
restraining certain speech by certain speakers—that is, by diminishing detailers’ 
ability to influence prescription decisions. Those who seek to censor or burden 
free expression often assert that disfavored speech has adverse effects. But the 
“fear that people would make bad decisions if given truthful information” cannot 
justify content-based burdens on speech.47 
Importantly here, the Supreme Court reiterated that the “First Amendment requires 
heightened scrutiny whenever the government creates ‘a regulation of speech because of 
disagreement with the message it conveys.’”48  A general assertion of a right to privacy will not 
support heightened scrutiny’s requirement of an important interest, much less a compelling one.49  
The Plaintiffs’ objections here are even broader: their objections are not limited to drug marketing 
(or even marketing at all), but to any commercial use of public domain information in public 
 
43 Sorrell, 564 U.S. at 558-559. 
44 Id.   
45 Id. at 563-564. 
46 Id. at 576. 
47 Id. at 577 (emphasis added) (citations omitted).  
48 Id. at 565, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).   
49 U.S.W., Inc. v. F.C.C., 182 F.3d 1224, 1235 (10th Cir. 1999). 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
records, social media, and elsewhere, including for purposes of child support, law enforcement, 
loan securitization, or investigative journalism.  Plaintiff’s cause of action cannot be tailored to any 
relevant state interest because the states sells the very same information to the same types of users 
and for the very same purposes that amici members’ customers intend to make of the data.50  
Allowing plaintiffs to proceed under California’s Unfair Competition law against a private party 
where the state engages in the exact same conduct would amount to content-based and user-based 
restrictions on commercial speech in violation of Sorrell.  Certification of such a class against this 
backdrop is impossible.  
III. 
THE PUTATIVE CLASS MEMBERS LACK STANDING.  
As explained above, myriad federal and state laws expressly regulate the kind of 
information that is included in the Product and permit that data to be sold without first obtaining 
the consumer’s consent or without compensation.  Thus, the putative class members have suffered 
no cognizable harm and lack standing to sue.  
California’s Unfair Competition Law limits standing in a section 17200 action to certain 
specified public officials and to “any person who has suffered injury in fact and has lost money or 
property as a result of ... unfair competition.”  Cal. Bus. & Prof. Code § 17204.  Assuming, without 
admitting, that the named Plaintiffs here meet the “public officials” standard, the vast majority of 
consumers located in California whom Plaintiffs intend to bring in as class members would not.  
 
50 In fact, in California, this very same public record information must be aggregated by the local 
agencies that maintain the original records (i.e., the clerks of the court) who must then share that 
information with the California Department of Justice, which maintains and organizes the data for 
the sole purpose of selling reports on consumers in California.  See Cal. Penal Code § 11105.  These 
reports may be accessed by a number of persons as permitted by law, including certain state 
agencies, law enforcement officers, and other specifically identified persons. Id. There is nothing 
per se untoward in the collection of such information, let alone illegal.  
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
As a result, these individuals must be able to establish that they have suffered an injury in fact and 
lost money or property as a result of Defendant’s sale of data.   
Plaintiffs would be unable to show harm to the putative class members. Again, Plaintiffs 
cite no authority for the proposition that they are entitled to compensation for the collection and 
sharing of information available in the public domain. The CCPA does not require it.  The DPPA 
does not require it. Nor does any law of which amici are aware.  Thus, these individuals cannot 
have “lost” money to which they were never entitled. 
Moreover, the Supreme Court’s analysis in an FCRA case sheds light on the question of 
putative class members’ standing under Article III.51 In Ramirez, the Supreme Court considered 
whether putative class members had standing to sue under the FCRA where the sole basis for the 
claim was that the CRA maintained information in a database about them, but had not shared it 
with any third party.52 The Supreme Court held that consumers failed to show concrete harm 
required to confer Article III standing where the CRA maintained (presumably misleading and/or 
defamatory information) 53  but did not share the information with third parties. The Supreme Court 
likened the issue to one of defamation, and explained:  
The mere presence of an inaccuracy in an internal credit file, if it is not disclosed to 
a third party, causes no concrete harm. In cases such as these where allegedly 
inaccurate or misleading information sits in a company database, the plaintiffs’ harm 
is roughly the same, legally speaking, as if someone wrote a defamatory letter and 
then stored it in her desk drawer. A letter that is not sent does not harm anyone, no 
matter how insulting the letter is. So too here.54 
 
51 Trans Union, LLC v. Ramirez, 141 S. Ct. 2190 (2021).  
52 For the purpose of the standing analysis, the Supreme Court assumed that the CRA “violated its 
obligations under the Fair Credit Reporting Act to use reasonable procedures in internally 
maintaining the credit files.”  Id. at 2208.   
53 The parties had stipulated, for the purpose of the case, that defendant had violated the law in 
including potential “OFAC” alerts, which signaled that the consumer’s name was identified on a 
list that included, among others, potential terrorists. Id. at 2221, fn 5. The Supreme Court expressly 
took no position with regard to that claim.  Id. at 2221, fn 5.   
54 Id. at 2210. 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
The fact that the FCRA provides for statutory damages did not, standing alone, satisfy the concrete 
harm requirement sufficient for standing to exist.55  Something more was required. 
Similarly, here, without some showing that an individual suffered concrete harm from the 
dissemination of information that would cause the consumer to be viewed in a negative light, the 
putative class members lack standing. As explained below, the exercise necessary to evaluate the 
nature of the information shared, to whom it was shared, and whether it would be viewed in such a 
way as to be defamatory or misleading, would overtake the entirety of the case, making class 
certification improper.  
IV. 
CLASS 
MEMBERS’ 
CLAIMS 
CANNOT 
SATISFY 
THE 
COMMONALITY 
REQUIREMENTS 
NECESSARY 
FOR 
CLASS 
CERTIFICATION. 
Amici agree with Defendant that there are a myriad of issues that this Court would be 
required to resolve to ensure that the class members’ claims are sufficiently common so that the 
relief accorded would appropriately remedy the harm suffered by each member. Respectfully, the 
series of mini-trials that would ensue demonstrate why class treatment is inappropriate here. 
“Commonality requires the plaintiff to demonstrate that the class members “have suffered 
the same injury.””56 It is well-settled law that “if class members are impossible to identify without 
extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”  
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012).  As described above, the data 
used in such products combine “public record” data (criminal records, driver’s license data, etc.), 
 
55 Id. at 2205 (citations omitted) (“this Court has rejected the proposition that “a plaintiff 
automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory 
right and purports to authorize that person to sue to vindicate that right.” As the Court emphasized 
in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory 
violation.”).  Moreover, where statutory damages are available, an individualized inquiry of class 
members’ harms is required. See Soutter v. Equifax Info. Servs., LLC, 498 F. App’x 260, 265 (4th 
Cir. 2012) (reversing class certification where the representative plaintiff’s claims were only 
“typical” only on an “unacceptably general level.”). 
56 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation omitted). 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
as well as other data made available voluntarily by consumers to third parties through public means 
(i.e., social media platforms such as Facebook®, SnapChat®, etc.).  Focusing on the front-end 
collection and maintenance of data, as to each consumer, one must consider the type of data, and 
its source, to determine if the collection and/or maintenance is unlawful (i.e., “unfair”).  If the data 
is publicly available data (i.e., such as the results of a Google ® search, or a court lookup service 
available online), there can be no claim, and that consumer would not properly be part of a class. 
Next, the court would have to consider if Defendant has an affirmative right under the law to collect, 
maintain, and share that data (such as with the DPPA, FCRA, GLBA, CCPA, etc.).  Further, class 
resolution of such claims is not superior where, as here “each class member has to litigate numerous 
and substantial separate issues to establish his or her right to recover individually.”57 
Given the complexity of this level of review, it is not surprising that other courts have held 
that similar putative class claims were not appropriate for class treatment.  Under the FCRA, for 
example, consumers are entitled to a copy of their file from a consumer reporting agency (e.g., a 
credit bureau) and the CRA must include the source of certain kinds of information in that file 
disclosure.58 In declining to certify a class of potential consumers who allegedly did not receive a 
complete file disclosure, given the “broad range” of the CRA’s data sources, the court trial 
explained:  
the court would need to determine the source of each piece of adverse information 
in a consumer’s report and then evaluate the quality of that source. This will 
necessarily entail individualized inquiry for many reports, even if some of the record 
sources may be common to many potential class members and thus susceptible to 
class-wide proof.59 
 
57 Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1192 (9th Cir.), opinion amended on denial of 
reh'g, 273 F.3d 1266 (9th Cir. 2001). 
58 15 U.S.C. § 1681g(a). 
59 Farmer v. Phillips Agency, Inc., 285 F.R.D. 688, 703 (N.D. Ga. 2012) (where the district court 
denied certification under Rule 23(b)(3) because these issues predominated over any issues 
common to the class, but the point remains). 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
For the same reasons many of the putative class members lack Article III standing, namely, 
lack of any concrete injury resulting from the fact that their information has not be shared with third 
parties and caused some harm as a result, so too would their claims not be common to other 
members of the class. If the data were not shared with a third party, under the rationale in Ramirez, 
the consumer did not suffer a cognizable injury, and would not properly be members of a class.   
Even if some data about a consumer had been shared, the Court would next have to consider 
the nature of the data, and the purpose for which it was shared in order to ascertain if the sharing 
caused harm.  Consider the parent whose cell phone data was shared so that their child could be 
found safe by law enforcement.  Certainly, the parent would not claim that they were injured by 
such use.  Next, consider the parent who is severely behind in child support payments who is located 
by the state upon retrieval of their current address information (whether obtained via a copy of the 
white pages or a report provided by a data aggregator).  While the parent forced to pay their legal 
obligation may object, the state’s interests are actually vindicated by such sharing in that the 
individual can be forced to pay and relive the state of its burden to provide support for the child. 
Further, the parents and children benefitting from child support recovery and enforcement are 
themselves a class who would see actual injury in loss of support funds if the plaintiffs succeed in 
creating a class and restricting the use of the Product for this purpose.  Under such facts, the debtor 
could hardly be said to have been harmed under the law.   
The putative class, as proposed, is therefore impermissibly vague, overly inclusive, and fails 
to account for any of these factors. The Court’s time would be utterly consumed by examination of 
the factors in each type of scenario.  In short, class treatment would be practically impossible.   
V. 
CERTIFICATION OF A CLASS ON THIS NOVEL THEORY WILL 
HAVE DETRIMENTAL IMPACTS ON CALIFORNIA CONSUMERS. 
To the extent that Plaintiffs’ novel theory essentially boils down to the following 
premise – the business practice of collecting and/or maintaining, and/or sharing publicly available 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
information for profit is a violation of California law – such a rule would have devastating 
consequences for California consumers. Setting aside the fact that this business model has been in 
existence for nearly 150 years, facilitated by the efforts of federal and state government agencies 
alike, and subject to regulation by state and local legislators for at least the past 50 years,60 and 
California legislators more recently, a ruling finding these business practices to be unlawful would 
bring businesses across California, and beyond, to a halt.   
As the Ninth Circuit observed in Taylor, the consequences of a rule that information 
expressly permitted to be collected and shared may not in fact be collected and shared, would have 
severe consequences and lead to “absurd results”: 
At a checkout line at a grocery store or similar establishment, when a customer 
wishes to pay by (or cash) a check, and presents a driver's license as identification, 
it is obviously wholly impractical to require the merchant for each such customer to 
submit a separate individual request to the state motor vehicle department to verify 
the accuracy of the personal information submitted by the customer, under section 
2721(b)(3). Any such process would obviously take way too long to be of any use 
to either the customer or the merchant, and would moreover flood the state 
department with more requests than it could possibly handle. 61  
The real-life consequences of such a ruling are far more extreme than mere delays at the grocery 
store checkout line:   
• Significant delays would be likely in the processing of applications for insurance 
and other financial services, because consumer identities may not be able to be 
authenticated or application information verified;   
• Law enforcement efforts would be hindered, delaying or preventing officers 
from locating suspects, or locating missing persons, and other victims of crimes;  
 
60 The FCRA was enacted in 1970. 15 U.S.C. §§ 1681 et seq.  Again, the Product itself is not a 
consumer report, and is therefore not subject to the FCRA; however, it is viewed as the nation’s 
first privacy law.  
61 Taylor, 612 F.3d at 337. Instead, the Ninth Circuit explained, “the merchant buys the state 
department's entire data base and from it extracts on that occasion that particular customer's 
information, and later performs the same task as to the next such customer in the line.” Id.  
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
• The state would be unable to locate persons who fail to pay child support, or 
who are engaged in tax fraud, causing the State to incur more expenses over 
time;  
• Consumers could be unable to quickly and easily obtain employment because 
their background checks would not be able to be completed and consumers 
would remain out of work, and unable to secure housing; and 
• Consumers and businesses alike would have no defense against sophisticated 
fraudsters and other bad actors whose actions would go undetected were 
products like CLEAR be banned from industry.  
In sum, Plaintiffs seek to create new standards, effectively outlawing certain business 
practices that the California Legislature had every opportunity to prohibit, but chose not to.  If there 
are to be enhanced privacy rights in California that might reach providers like Defendant, it is the 
job of the Legislature to create them.  This Court should deny Plaintiffs’ Motion for Class 
Certification.  
 
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MOTION FOR LEAVE TO FILE AND [PROPOSED] AMICI BRIEF OF THE SOFTWARE & INFORMATION 
INDUSTRY ASSOCIATION AND THE COALITION FOR SENSIBLE PUBLIC RECORDS ACCESS 
CASE NO. 3: 21-cv-01418-EMC 
 
CONCLUSION 
 
For the foregoing reasons, amici the Software & Information Industry Association and the 
Coalition for Sensible Public Records Access respectfully request that this Court deny Plaintiffs’ 
Motion for Class Certification.   
 
Dated: February 2, 2023 
 
 
Respectfully submitted, 
 
 
  /s/ Laura Sullivan 
 
 
Laura Sullivan (Cal. Bar No. 220529) 
LAW OFFICE OF LAURA SULLIVAN 
423 South Estate Drive 
Orange, CA 92869 
Telephone: (714) 744-1522 
Email: laurasullivan@laurasullivanlaw.com  
 
Jennifer L. Sarvadi 
Hudson Cook, LLP 
1909 K Street, N.W., Suite 400 
Washington, D.C. 20006 
(202) 715-2002 
jsarvadi@hudco.com 
Motion for Admission Pro Hac Vice pending 
 
Attorneys for Amicus Curiae 
The Software & Information Industry Association, 
The Coalition for Sensible Public Records Access 
Case 3:21-cv-01418-EMC     Document 156     Filed 02/02/23     Page 31 of 31

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