New Haven Independent

The State Elections Enforcement Commission planned to begin posting on its website the names of executives of state contracting firms and their spouses and children as part of a broader campaign-finance reform law that took effect Monday. U.S. District Court Judge Stefan R. Underhill’s ruling Tuesday allows the SEEC to proceed with posting the names of the principals and spouses, but not the children. The state said it planned to have those names online some time Wednesday morning.

Underhill’s order came in the form of a temporary injunction sought by a financial industry trade group (whose vice-president, Leslie Norwood, is pictured above outside the courthouse). The group is suing the state over provisions of the new law. The law bans “principals” of contracting firms seeking to do state business and their spouses and children from contributing to candidates for state office. It also requires the state to maintain the list of contractors’ family members’ names to help people monitor compliance with the law. The law’s larger goal is to stop the “pay-to-play” politics that led to a series of state government corruption scandals.

That’s an important goal, Underhill said. Protecting children is even more important.

In the process, Underhill broke new legal ground in the ruling by establishing a constitutional right to privacy for parents to keep their children’s names offline.

“When people are married, their names are put on a public registry. There’s no question that a spouse’s name is a public matter. The same is not true of children’s names,” Underhill said.

“Public disclosure of your children’s names is something we [should] avoid.”

Dueling Websites

Underhill made the comments and his ruling at the end of an extraordinary day of testimony and debate in federal court in Bridgeport. The courthouse there was officially closed, as were all federal courts Tuesday, to commemorate the passing of former U.S. President Gerald Ford.

The hearing, which began shortly after 10 a.m. and ended shortly after 6 p.m. (with an hour off for lunch), covered the uncharted legal terrain of both Internet security and new state campaign-finance law.

Among the unknowns: What fears about privacy and Internet predators are reasonable, and which are unreasonable?

The financial industry trade group — the Securities Industry and Financial Markets Association (SIFMA) — represents “more than 650 securities firms, banks and asset managers,” according to its website. That includes financial firms that underwrite government debt. (Click here to view the association’s legal filings in this case.)

One of SIMFA’s members is New York-based UBS, which plans to bid on a Connecticut Housing Finance Authority contract by a Jan. 18 deadline. Terry Atkinson (pictured above), who heads UBS’s municipal security group, testified at Tuesday’s hearing that his company is reluctant to comply with the provision requiring the disclosure of spouses’ and children’s names out of fears for their safety. Atkinson said he feared that someone looking to kidnap a wealthy executive’s children might track down the children’s names from the state website. He also mentioned “pedophiles, stalking, identity theft.” He worried that UBS would have trouble recruiting new employees who would balk at disclosing their family members’ names for a public database.

Under cross-examination, Perry Zinn-Rowthorn, the state’s lead attorney in the case, asked Atkinson whether his 19-year-old daughter has a page on MySpace. Zinn-Rowthorn’s point: MySpace pages contain far more personal information than the state’s web page, which lists would list merely the children’s names alongside those of the contractors and spouses. It wouldn’t identify which is a child, or have any other personal information like age or hometown.

Yes, his daughter has a MySpace page, Atkinson responded. And she has received “creepy inquiries” that led her to limit access to her friends. But to “the best of my knowledge,” Atkinson said, her page doesn’t mention that she’s the daughter of a UBS exec.

SIFMA Vice-President Norwood (pictured at the top of the story) mentioned the same fears that Atkinson did. Which led to an interesting exchange with Assistant Attorney General Zinn-Rowthorn.

It turned out that Zinn-Rowthorn had visited SIFMA’s own website prior to the hearing. He noted to Norwood that the page of executives’ bios includes where they live, the names of some of their spouses, and the number of sons or daughters some have. The state never planned to publish that level of detail. Another page on the site shows the photos of directors.

“I find it odd and curious,” Zinn-Rowthorn quipped, “that SIFMA would allow its employees to put that kind of information online.

SIFMA’s attorney Lawrence M. Noble sought to salvage the point by noting that the listings don’t include names of children. He asked Norwood who decides what information to list in the bios. The executives themselves decide, she responded. And some choose to leave out spouses’ names.

Zabasearcher

Later in the hearing, an Internet security expert walked SIFMA’s lawyer through ways that a devious predator or kidnapper could build a “dossier” on an exec’s family with the help of the simple listing of names on the state website.

The expert, Richard M. Smith of a firm called Boston Software Forensics, said someone visiting the state site could look at names grouped together to guess at possible names of children of execs. The dossier-compiler would then start by visiting a “super-white-pages” site called Zabasearch, then other databases, to begin ferreting out addresses, phone numbers, birth years. He also said that even if the state removed a child’s name from a database, older versions of that database would remain on sites like WayBackMachine.

“It’s unusual to find children’s names on the Internet,” Smith said. “Particularly younger children don’t appear in Google.” He said SIMFA was paying him $300 an hour for his testimony.

In his cross-examination, the state’s Zinn-Rowthorn asked Smith if he had personal knowledge of any cases involving sexual predators or kidnappers finding the names of children based on this kind of information. No, Smith said, he hadn’t.

Zinn-Rowthorn’s point: Internet sexual crime involving kids is scary. Any parent, including him, fears it. But, in his view, fearing the simple listing of people’s names on a state website is an overreaction. “Unsbustantiated fears do not justify” striking down provisions of the new law, especially in the absence of evidence that including children’s names puts them in jeopardy, Zinn-Rowthorn told Judge Underhill during the final arguments of the day.

Bundlers & Gift-givers

Of greater importance is the state’s interest in “avoidance of corruption and appearance of corruption,” especially in the wake of the scandals that drove Gov. John Rowland from office, Zinn-Rowthorn argued. Rowland’s improper gifts and contributions came in some cases from spouses and children of state contractors like the Tomasso family.

The law also aims at “bundling,” the practice by which businesspeople sneak campaign contributions to politicians by putting the contributions in their spouses’ or children’s names. SEEC Executive Director Jeffrey Garfield spoke on the stand Tuesday about how hard it is to prosecute bundling cases, because spousal privilege enables husbands or wives to avoid testifying against their spouses. Making public the names of all contractors and their families makes it easier for people inspecting campaign finance reports to identify relatives making improper contributions, Garfield argued. It also helps candidates themselves avoid unwittingly taking improper contributions.

“There are good arguments that can be made on both sides,” Judge Underhill said later from the bench in explaining his ruling. The “potential harm that could result and the loss of privacy the parents” would experience “outweighs” the state’s interest in publicizing children’s names, he said.

He proceeded to note a huge loophole in the law: An executive of a contracting firm can avoid listing children simply by choosing not to claim them as “dependents” on tax returns. That undermines the state’s argument that it needs to post the children’s list in order to catch contractors who seek to avoid the law, he said.

Next Steps

Even though Underhill granted only half its request (leaving spouses open to disclosure), SIMFA declared victory. In a press release issued Tuesday night, the association’s general counsel, Ira Hammerman (pictured), called Underhill’s ruling “a win for the Constitution and for Connecticut’s many state contractors who are concerned about their childrens’ privacy and safety. The Judge made clear in his oral ruling that parents have a privacy interest in protecting their childrens’ names from disclosure on the Internet. We look forward to working with the state to find a solution that ensures the safety and privacy of children and serves the public interest.”

As the lawsuit progresses, the association will probably find more amenable state allies outside the courtroom. The suit may become moot. Legislators are already planning to tinker with the campaign finance law. State Treasurer Denise Nappier has already reportedly been speaking with legislators about removing the child-identification provisions. SEEC’s Garfield said his agency would like to see a separate law changed to require that people be under 18, not under 16, to contribute more than $30 to a campaign. If that passed, he said, it would be easier to argue for keeping the names of children’s names off campaign-finance databases. Compromise is clearly in the air.