ACLU files lawsuit on behalf of Virginia privacy advocate

Betty Ostergren has a point to make

The American Civil Liberties Union (ACLU) of Virginia this week filed a federal lawsuit (download PDF) challenging a recently amended state law that prohibits individuals from disseminating public records containing Social Security numbers, even if the records are publicly available to anyone on county government Web sites.

The lawsuit was filed on behalf of Betty "BJ" Ostergren, a Virginia-based privacy advocate who has been fighting to stop county and state government offices from posting public records containing Social Security numbers and other personal records on their sites. As part of her campaign to publicize the issue, Ostergren has routinely downloaded documents containing Social Security numbers from county Web sites and reposted them on her own site.

Ostergren and the ACLU had previously said that a recent bill amending Virginia's Personal Information Act would do nothing to prevent county governments in the state from posting documents without first redacting Social Security numbers and other sensitive days. Rather, she claimed, the measure seems to have been designed specifically to curtail her campaign to publicize and end that practice.

In a statement announcing its lawsuit, the ACLU said the amended state law is "wrong end up" and only curtails free speech while masking the state's own failure to prevent public records containing Social Security numbers from being posted online.

Rebecca Glenburg, legal director for the ACLU of Virginia, said the Virginia law violates the First Amendment right to free speech.

"Under the First Amendment, people have the right to publish truthful information that is publicly available," she said. "The Supreme Court has held over and over again that when the government chooses to make information public, it can't then punish other people who obtain that information legally and distribute it to others," Glenburg said.

In Ostergren's case, she has been retrieving material made freely available to her by the government and reporting it on her web site. "Punishing her is not going to protect anyone from ID theft, because all the documents on her Web site are also available on county Web sites," she said.

Glenburg cited two cases in which courts have sided with individuals who faced legal problems for publishing truthful information they obtained from public sources. One of the cases involved a Florida newspaper that was sued by a rape victim for publishing her name. In that case, the court ruled that the newspaper had not violated any law because the information had been obtained from a public court record. In another case, an individual who got information on law enforcement officers from public records and then posted that information on his police accountability Web site got the courts to side with him when he challenged a state law aimed at outlawing his practice.

So far, though, there have been no cases involving the public posting of Social Security numbers accessed from government sites, she said.

The statute challenged by the ACLU was signed by Gov. Timothy Kaine in March and prohibits the spreading of Social Security numbers obtained from public records. It expands on a previous restriction that only applies to numbers contained in private documents.

The law is scheduled to go into effect July 1, the same date on which county clerks across Virginia are required to make all land records -- such as deeds and mortgage information -- available online.

The lawsuit is seeking an injunction preventing the statute from going into effect, Ostergren said.

Ostergren refused to speculate on what she would do if an injunction preventing the law from going into effect was not granted. Under the statute, a violator can be fined up to $2500 per violation.

Copyright © 2008 IDG Communications, Inc.

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