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.”