Judge lets privacy advocate keep Social Security numbers on Web site

Virginia can't prevent dissemination of personal data readily available from its own Web sites

Can a state government prohibit an individual from posting Social Security numbers online that were easily and legally obtained from government Web sites?

The answer, a federal judge in Virginia ruled last week, is a definite 'No,' at least for Betty "BJ" Ostergren, a privacy advocate who operates a Web site that posts Social Security numbers obtained from public records. Ostergren's postings are part of a campaign to show how easy it is to access very personal information on the Web.

In a memorandum issued last Friday (download PDF), Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia ruled that it would be unconstitutional for the state of Virginia to force Ostergren to remove from her site Social Security numbers that she legally obtained from public records. A memorandum opinion does not create a legal precedent.

The Virginia chapter of the American Civil Liberties Union (ACLU) in June filed a lawsuit on behalf of Ostergren in Virginia's Hanover County. The lawsuit challenged the constitutionality of an amendment to Virginia's Personal Information Act, which forbids the dissemination of any records that contain Social Security numbers, no matter how the records were obtained. Violators are subject to fines of up to $2,500 plus $1,000 in court costs for each Social Security number posted.

Ostergen, who has been working for several years to force Virginia county governments to redact Social Security numbers and other personal data from records posted online, contended in the suit that the law was passed specifically to curtail her campaign.

Ostergren's Web site, The Virginia Watchdog.com, highlights privacy problems that can result from the posting of unredacted public documents such as land and tax-lien records posted on government Web sites. In recent years, she has chronicled dozens of cases in which local governments have inadvertently exposed Social Security numbers and other personal data on their Web sites, making them attractive targets for identity thieves.

As part of a campaign to draw attention to the issue, Ostergren routinely posts the Social Security numbers of high-profile individuals that she claims to have easily obtained from county and state government Web sites. The list includes former Florida Gov. Jeb Bush, former U.S. Secretary of State Colin Powell, former U.S. House Majority Leader Tom DeLay, former Missouri Sen. Jean Carnahan and several county clerks in Virginia.

Ostergren contended that the amendment to the state's Personal Information Act would have forced her to stop posting the personal information, while doing nothing to stop county governments from posting the same data.

She claimed that applying the amended statute to her Web site violated her First Amendment right to free speech.

Ostergren pointed to at least two U.S. Supreme Court rulings saying that it is unconstitutional to prevent the publication of information -- even sensitive material -- that is legally available in the public domain.

In one of the cases, a rape victim sued a Florida newspaper for publishing her name. The U.S. Supreme Court ruled that the newspaper had not violated any law because the information was obtained from a public court record. In another case, the court sided with an individual who challenged a state law prohibiting him from posting publicly obtained information about law enforcement officers on his police-accountability Web site.

In the 33-page ruling issued last week, Judge Payne held that the same logic applies in the case of Social Security numbers posted on Ostergren's Web site.

"It is difficult to imagine a more archetypal instance of the press informing the public of government operations through government records than Ostergren's posting of public records to demonstrate the lack of care being taken by government to protect the private information of individuals," Payne wrote.

He noted that the records posted on the Ostergren posted on The Virginia Watchdog.com were legally obtained from government sources, and had already been posted on government sites.

He acknowledged that the sensitive information posted on Ostegren's site needs to be protected from misuse but added that the state's own conduct undercut its claims that Social Security numbers must be protected "as an interest of the highest order."

It is well within the state's powers to redact personal information from records posted on government Web sites, he said.

Judge Payne did make clear that his ruling applied only to Ostergren's Web site "as it presently exists." He noted that the ruling may have been "very different" if Ostergren only listed Social Security numbers copied from records rather than the records themselves.

If both sides fail to resolve the dispute privately, the judge said he will issue an injunction to enjoin the state from applying the law to Ostergren's site, said Rebecca Glenberg, legal director of ACLU's Virginia chapter.

Ostergren, who faced tens of thousands of dollars in fines had she lost the legal battle, welcomed the court's ruling but noted that it is unclear whether she can continue posting records containing Social Security numbers.

"The memorandum of opinion was based on two U.S. Supreme Court opinions which said you can't punish someone for publishing a published record," Ostergren said. "I think it's a win for the First Amendment."

"I think that Judge Payne recognized that the government cannot make information public and then prohibit someone else from publishing the same information," added Glenberg. "We were pleased to see that he recognized that if the government wants to protect certain information, it needs to do it itself rather than punish others who lawfully received it and then distributed it."

The Virginia attorney general's office did not respond to a request for comment on the ruling.

Copyright © 2008 IDG Communications, Inc.

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