Landlords, Tenants Forge Unlikely Alliance in Fight Against San Jose’s Rent Control Registry

Mylene Pagba applauded San Jose’s push for stronger tenant protections, including a lower cap on annual rent hikes passed in 2016 and higher threshold for evictions adopted the following year. As a 43-year-old retail worker on a tight budget with steep rent, the policies brought her welcome relief.

But she says they come at a cost she’s reluctant to pay.

“It’s, basically, my privacy for financial security,” says Pagba, who eschews social media and other forms of data-harvesting because she consistently avoids making that tradeoff. “It’s the principle of the thing.”

That makes her an unlikely ally to landlords, who spent the past few years lobbying against stricter rules and a rent control database for economic reasons and, when they lost, sued to block their implementation on constitutional grounds.

As part of sweeping revisions to a decades-old apartment ordinance, some of which only went into effect this year, San Jose requires owners to sign up for a rent registry that lists the names of every tenant in each unit, how much they pay per month and for security deposit, when they move in and, finally, when and why they move out. Landlords have until Feb. 1 to comply.

City officials say the idea is to hold owners accountable after years of lax enforcement.

“It’s purely informational,” City Attorney Rick Doyle says of the registry, which applies to about 45,000 rental units, or a third of San Jose’s apartment stock.

Landlords, however, say the effect is to make data about some of the city’s most vulnerable—the destitute and undocumented among them—potentially prone to disclosure through subpoena or public records laws. Under President Trump’s heavy-handed immigration enforcement, they contend, that’s a frightening prospect for communities like San Jose, where 40 percent of the population is foreign-born. And for the poor, who already have to forgo more personal privacy than the average citizen in exchange for safety-net services, it’s another reminder of their lack of agency.

The American Civil Liberties Union (ACLU) of Northern California raised similar concerns last spring, urging San Jose Housing Director Jacky Morales-Ferrand to guard tenants’ personal information from public view.

“As with any database containing personal information, the city should have a clear purpose for the collection of each piece of data to be included in the rent registry,” ACLU attorney Vasudha Talla cautioned Morales-Ferrand in the April 6, 2018 letter. “The city should be aware that personal information, once collected, may be vulnerable to disclosure in response to subpoenas, warrants or court orders, including agencies engaged in immigration enforcement activities. Therefore, the city should ensure that it collects only the minimum amount of information necessary to fulfill the purposes of the apartment rent ordinance and the rent registry.”

Landlords surprised absolutely no one by litigating the matter, considering they’re on the hook for the cost of enforcement. In a lawsuit filed last spring, they call San Jose’s registry request for personal information too broad and invasive. The trial courts dismissed the case months later. Instead of amending and re-filing, the 20 or so landlords involved—a coalition called the Small Property Owners Association represented by attorney Frank Weiser—appealed to the Ninth Circuit. Then they found a group of tenants to join the cause by framing it as a shared concern about privacy rights.

The message resonated with Jerry, a 59-year-old renter, hardware store employee and proponent of the lawsuit who asked San Jose Inside to withhold his surname because he’s “a very private person.” “I don’t want the city to know my name, to know if I live alone or with others, how much I make or how much I pay,” he says.

In November, Weiser filed a suit on behalf of the San Jose Tenants Association, an unofficial group of about a dozen renters—not to be confused with the South Bay Tenants Union, a grassroots group that actually advocated for stronger rent control measures, including the registry—who echoed the claims of their landlords. U.S. District Judge Lucy Koh in San Jose put the tenants’ association litigation on hold pending the outcome of the property owners’ case.

“These tenants are absolutely aligned with the owners on this,” Weiser says. “You could say they have a stronger interest than the landlords. I think the big problem today, with everything going on in the federal government and ICE [U.S. Immigration and Customs Enforcement] coming in and wanting to find out who’s documented and who’s not, the worry is that giving this info over to the city puts vulnerable people at risk.”

Dean Hotop—one of the lead plaintiffs in the landlord suit who’s fine with the 5 percent rent control cap but opposed to the registry—says the privacy argument should resonate with both sides of the ideological spectrum. “You never know what panel of judges you’ll get—liberal or conservative,” he says. “But this issue plays well to both. The conservative panel will look at this from more of a business-interest perspective, and the liberal judges might see this as more of a civil rights issue.”

A preliminary ruling in a case against short-term lodging giant Airbnb gives Hotop hope for the San Jose lawsuit. Earlier this month, U.S. District Judge Paul Engelmayer in Manhattan temporarily blocked a New York City law requiring Airbnb to relinquish data each month about people who use its listing service.

Doyle shrugs off the comparison, saying a rent registry isn’t the same as a record of short-term guests. “It’s apples and oranges,” he says. “I mean, we’re talking about long-term, rent-controlled units and who lives in them, not a list that deals with travelers, people who stay for a weekend or a week, which is like going to a hotel.”

San Jose’s housing division will do all that it can to keep the rent registry data private, Doyle insists. He notes that a group of apartment landlords lost a similar case against the city of Los Angeles, which makes him believe that San Jose, too, will prevail.

“We’re pretty confident that this is on solid ground,” he says.

If anyone files requests for the information under federal or state public records law, Doyle adds, the city will redact what it must to protect the tenants. City officials seemed a little less certain, however, when conservative City Council members Johnny Khamis and Dev Davis broached the issue during a Nov. 6, 2017, hearing.

“The names would not be publicly released,” Morales-Ferrand assured. “So it would not be something that would show if the tenants and landlords were actually looking at the rent registry from the viewpoint of the public. … We have an opportunity to protect the name, so that’s what we would to.”

“But if the federal government … requested it, would we be required to turn it over?” Davis wondered.

“If it was subpoenaed,” Morales-Ferrand replied. “But other than that, we would not be required to turn it over.”

“OK,” Davis said, furrowing her brow.

“I need to put a caveat to that,” Doyle cut in. “While we would make efforts to protect it, I can’t guarantee that under a public records act request that a court wouldn’t require it.”

Basically, Davis concluded, “All we know for sure is that we don’t know for sure.”

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @jennwadsworth.

34 Comments

      • Hmm, anyone else see rental ads on craigslist with gender-based pricing besides Teresa? This is a new one and seems pretty far fetched, Teresa’s own anecdotal data aside.

        Maybe the City should collect the data directly from tenants, those who have no qualms about providing it are free to do so.

      • What are you talking about Teresa? I use Zillow and Craigslist plus some agencies that are attached to Zillow to advertise. Those companies have guidelines before you can post your ad the protects the landlord and the renter. Having renting out properties for over 40 years, I’ve never used gender as a prerequisite. I have always posted a price for the rent. Respond to this reply on facts that you know to be true and verified, particularly discrimination. Very simple as far as I’m concerned, if your credit app appears to be legitimate and you have a good record on paying on time you could be a monkey as far as I’m concerned. It is people like you that think the world owes you a living.

  1. > “As with any database containing personal information, the city should have a clear purpose for the collection of each piece of data to be included in the rent registry,” ACLU attorney Vasudha Talla cautioned Morales-Ferrand in the April 6, 2018 letter. “The city should be aware that personal information, once collected, may be vulnerable to disclosure in response to subpoenas, warrants or court orders, including agencies engaged in immigration enforcement activities. Therefore, the city should ensure that it collects only the minimum amount of information necessary to fulfill the purposes of the apartment rent ordinance and the rent registry.”

    So, does the ACLU have any privacy concerns about the MAMMOTH amount of personal data on 90 percent of adults in America that is in the hands of GIANT PROFIT MAKING CORPORATIONS like Google (“don’t be evil”), Facebook, Twitter, and others?

    As a former Facebook employee testified: “The business of social media is exchanging personal data for money”.

    Also, does the ACLU have any concerns how the mountains of personal data in private hands can be massaged via artificial intelligence and provided SELECTIVELY by the CORPORATE custodians to influence voting in elections?

    Or, in other words, does the ACLU think that coupling social media data in corporate hands with third party activists engaged in “ballot harvesting” is good for “our republican form of government” and fair elections?

  2. I have a better Idea, Register all the undocumented democrats occupying the valley. How much they have collected in benefits. Who they have voted for. Who they work for, if they work. and how much they make.
    San Jose will do all it can to keep that info privet.

    Yeah Right!

    • The more information we have about the illegal aliens the harder it is for the liberals to get away with indulging in their favorite pastime: claiming that the undocumented aren’t a gigantic drain on our resources.

  3. Dear San Jose City Council,

    Please put this on the ballot and let the people of San Jose decide if they want this. I suspect the answer will be crystal clear. Thank you.

  4. The registry’s purpose should be checking for discrimination on rent cost based on gender, place of Origen, sexual orientation…I am sure women pay way more rent than men.

    • Why are you so sure women pay more rent than men? Have you actually seen apartments advertised with different pricing based on gender? This makes no sense. Or are you saying if a landlord advertises an apartment for $X and a woman shows up to apply they suddenly raise the rent to $Y? A) that would be false advertising, B) probably grounds for an easily provable discrimination lawsuit and C) just plain crazy.

      • I do not waste my time with idiots that only use a portion of their half of a brain. Meet me when you learn to use your whole brain XY!

    • > More Authoritarianism… I thought the Progressives were against that?

      Nope.

      I think you may be “projecting” the values of Western Civilization on to “Progressives”.

      It is a HUGE mistake to assume that “we’re all just people”, and “progressives are just like us”.

      Progressives reject Western Civilization. Slavery. Patriarchy. Greed. Profit. White supremacism. Religious intolerance. Blah. Blah. Blah.

      “Progressivism”/socialism/communism/collectivism are all variations of neo-tribalism.

      Tribalists assigns power to a tribal shaman. The shaman has the power.

      Power gives the shaman “authority”.

      Do what the shaman says, OR ELSE!

      Nancy Pelosi is a shaman of the progressive tribe. Do what Nancy says, OR ELSE!

      Progressives ARE authoritarian.

      (Progressives like the word “solidarity”; it just means that the pissants must SOLIDLY submit to the shaman’s authority).

      • I read somewhere you have a bubble for a brain and two by the level of your penis, if there is anything left…only talk with XYs that use whole brain to think…not bubble heads…

          • Everyone, if you or your children attended or attend public education, bubble head thinks you are an idiot. If you are someone that attended private school and you also brag about grabbing women by their pussies, Trump, he likes you!

  5. This registry is the only way that that the City can ensure that landlords are obeying the ordinances that renters fought so hard to get the City Council to pass, the Just Cause Eviction ordinance. Don’t allow California Apartment Association, one of the most powerful lobbies in California, to confuse tenants about where their self-interest is. The rent registry does not threaten your privacy. If you buy things on line, or use FaceBook and other apps, or use a credit card, your privacy has long ago been compromised. I was on the feedback team for the design of the rent registry, and we insisted on privacy protections for tenants.

    • Susan Price-Jang: So, you are assuming landlords are guilty until proven innocent? Wow! How about a renter file a complaint about an illegal rent increase and then the City issue a warrant for the information on probably cause – as the constitution requires?

      Privacy issues are rampant with the rent registry, even if the city tries to block tenant names from being exposed (Which, as Rick Doyle pointed out a court may not allow). For example, even without tenant names, someone could look up all the rents by unit at an apartment complex and see what everyone else is paying. Some renters don’t want anyone else to know what they pay in rent, that’s their business. And, as Jacky Morales-Ferrand explained to council member Davis, ICE can subpoena the data.

      Even the ACLU thinks this is a bad idea.

      • When renters file claims nothing really happens. This discrimination situation based on gender really happens. It is time this data is made public. The names of the people could receive a code the same way psychologists protect their participants, other demographics and the name of renters should be public. This dirty business needs a dose of public shaming!

        • “When renters file claims nothing really happens.”

          Please cite your source of this “fact”. I have found the housing department accountable and responsive even if hopelessly biased against landlords and I have interacted with them on numerous occasions over the past 6 years.

        • I’m sorry Tom, but that’s not true. The housing department reviews each and every complaint, holds hearings does fact finding and resolves the issue one way or the other. You can file an open government request to get all of that data on the complaints and see the resolution.

          Are you implying that every landlord operates as a ‘dirty business’ and therefore is deserving of some punishment without prior evidence?

          Realize, you are starting with a presumption of guilt of individuals based on the fact that they are a landlord. The majority of small landlords in SJ are minorities, many of them 1st or 2nd generation immigrants who worked their tails off to achieve their American dream.

          This is tantamount to discrimination. Imagine the outrage if a particular neighborhood had a rash of breakins and you suggested everyone in the neighborhood was a suspect and must wear a GPS ankle bracelet in order to catch the perpetrators.

          When you accept this type of precedent, where does it stop? This is not just about renters or landlords privacy. Its also about putting a hard limit on gov’t intrusion to EVERYONE’s personal, private matters.

          I sincerely hope you can see that and at least reconsider your position. Today its landlords and renters who are the target. Who will be the target tomorrow?

          • Those who have nothing to hide careless about government intrusion. Those that engage in illegal activity fear “government intrusion.” Again, this data could be made public while protecting the identity of individuals.

          • Tom, Its about our constitutional right to privacy, not about whether we’re trying to hide some illegal activity. Pity you don’t get that. In any case, your comment is implicating that renters who are opposed to this have something to hide. Would you care to expand on what you think renters have to hide?

  6. The CA supreme court forced CA cities to publish public employees salaries in 2007 and ruled electronic communication, by public employees, on private devices is public information in 2017. The city of SJ cannot even protect its own employees’ privacy and we’re to expect tenant’s info to be kept private? Seems there’s a lot of hoping and praying the courts will agree to this but don’t hold your breath. Imagine identity thieves having access to public employees salaries, their home address and what they pay in rent. Jackpot!

    • I just need privacy when using the toilet. Others need privacy to cheat IRS…come on government bring it all; check all you want. Make sure those engage in illegal activity pay for their deeds! check for illegal discrimination practices.

  7. Thank you Jennifer for writing about this. I had no idea the City was doing this. This ordinance is terrible and should not of been passed. If a renter feels there is a problem let them contact Housing and work it out there.

  8. FEXXY harangues the mob:

    “Everyone, if you or your children attended or attend public education, bubble head thinks you are an idiot. . . . ”

    It’s not just me, FEXXY. The Clinton’s and the Obama’s avoided sending THEIR children to public schools.

    Not to mention, most San Francisco public school teachers with children send them to private schools.

    > If you are someone that attended private school and you also brag about grabbing women by their pussies, Trump, he likes you!”

    Jennifer:

    We need a ruling from the SJI throne: Is SJI going to tolerate FEXXY’s obsession with “pussies”? How about other body parts? Does SJI embrace the equality of all body parts?

    Is it permissible to discuss the size, shape, length, and usage of body parts on SJI? Is it necessary to have medical or professional credentials, or can civilians participate?

    • I do not have an obsession with pussies, Trump does. Is it shameful to know that this is the type of men you support? Then these are the same men that want to critizise women and call them nasty. The ones that want to believe that God likes them. You and Trump remind me of those men that wanted to stone the woman. Then Jesus stopped them because he knew they were worst than what they were criticizing. TRUMP BRAGS ABOUT GRABBING WOMEN BY THEIR PUSSIES! This is his natural language!

  9. Ph.D. Level, Summa Cum Laude, Public/Private Education. Invited to top schools in the nation. You become an expert swimmer by swimming not by looking at the water from your bubble. Nurture/Nature! My children went to public and private schools/colleges, their choice. You are very much insulting a big portion of Americans. This is why the Republican Party has lost power. Most people attent public education in this country. Those are the ones that vote on Election Day! Per your behavior and mind set, you did not attend public or private. You were late to God’s distribution of brains.

    • > Ph.D. Level, Summa Cum Laude, Public/Private Education.

      Sociology?

      MICHELE !!!!!

      Your mother must be very proud of you.

      Sorry about your father, though. He must have been an awful brute.

      > Is it shameful to know that this is the type of men you support? Then these are the same men that want to critizise women and call them nasty. The ones that want to believe that God likes them. You and Trump remind me of those men that wanted to stone the woman. Then Jesus stopped them because he knew they were worst than what they were criticizing. TRUMP BRAGS ABOUT GRABBING WOMEN BY THEIR PUSSIES! This is his natural language!

  10. Wow you are obsessed with Michelle Dauber. I have seen you make reference about her through your posts. Sorry, not Michelle here. My father taught me men are not better than women and to send men to he…ll!

  11. While it is illegal to grant or refuse housing based on immigration status of renters, I wonder how willing are such tenants to fill the forms. Perhaps City is trying to trap the illegal immigrants this way. Tenants be aware. Don’t fill any forms.

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