Privacy advocate, ACLU hit new Virginia privacy law as misguided

Claim that ban on spreading Social Security numbers won't stop counties from posting them

A Virginia-based privacy advocate who has been fighting to stop county and state governments from posting public records containing Social Security numbers on their Web sites is now preparing to do battle against an amendment to a Virginia law that bars individuals from disseminating any of those numbers, even if they obtain them legally from public records.

Far from viewing the bill that amended Virginia's Personal Information Protection Act as a cause for celebration, privacy advocate Betty "BJ" Ostergren claims that it violates her free-speech rights and will do nothing to stop county governments in the state from posting documents without first redacting Social Security numbers and other sensitive data. In fact, Ostergren said the measure seems to have been designed to curtail her campaign to publicize and end that practice.

Likely to join Ostergren in her effort to overturn the bill is the Virginia chapter of the American Civil Liberties Union, which previously had stated that it was willing to challenge the amended privacy law in court.

The bill, which was signed by Gov. Timothy Kaine last Tuesday, is scheduled to take effect July 1. Its prohibition on spreading Social Security numbers obtained from public records expands on an existing restriction that only applies to numbers contained in private documents.

According to Ostergren and other privacy advocates, county government Web sites in Virginia and elsewhere around the U.S. have become veritable treasure troves of sensitive data for identity thieves and fraudsters. Ostergren, who lives in Virginia's Hanover County, said the bill signed by Kaine will do little to prevent just about anyone worldwide from accessing the public records on county Web sites for a nominal fee. All the amended law does is prohibit people from spreading the information after it is made available to them, she contended.

Ostergren runs a Web site called The Virginia Watchdog, which she uses to highlight the privacy problems that she claims can result from the posting of unredacted tax lien records and other documents 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 through their Web sites.

As part of her strategy to highlight the seriousness of the issue, Ostergren has routinely posted on her Web site the Social Security numbers of public figures that she accessed via government sites. The list includes former Florida Gov. Jeb Bush, former Secretary of State Colin Powell, former U.S. House Majority Leader Tom Delay, former Missouri senator Jean Carnahan and several of Virginia's county clerks. Ostergren claims that she posted the numbers to demonstrate the ease with which such information could be obtained and to pressure county officials into taking action.

The new restrictions in Virginia will outlaw such postings, said Ostergren, who argued that the bill has major flaws. "It violates my right to take public records that the government has already put out there and do whatever I want to with them," she said. "[Government officials] can't tell the press or anyone else how to use the information, because it's the government itself that put it out there."

Ostergren pointed to a 1975 Supreme Court decision in a case involving Cox Broadcasting Corp., which had been sued for naming a victim in a high-profile rape and murder case. The justices ruled that Cox couldn't be punished because it had obtained the victim's name in court documents that it had asked to see. Other courts have similarly ruled that no restrictions can be imposed on the use of information legitimately obtained from public records, according to Ostergren.

The measure also is likely to create problems for businesses, such as title companies, that legitimately need access to public records, Ostergren claimed. For instance, a title company that obtained a public record containing a Social Security number from either a courthouse or a Web site could find itself on tenuous legal ground if it then shared the document with another business, she said.

Ostergren said that in challenging the amendment, her ultimate goal remains convincing the Virginia legislature to stop county clerks from openly posting sensitive personal data. Currently, she claimed, 84 of the 121 county governments in Virginia post unredacted public documents — such as land records, state and federal tax liens, divorce decrees and name change records — on their Web sites.

Fairfax County alone has more than 30 million online records, about 6 million of them containing Social Security numbers that can be accessed and downloaded by anyone paying a $25 per month subscription fee, Ostergren said. She added that there already is a requirement in place for counties to redact sensitive information from their online records, but thus far no funding has been made available to carry out that mandate.

In a prepared statement issued last week before the governor signed the bill, Kent Willis, executive director of the ACLU's Virginia chapter, said the organization is a "staunch supporter" of laws that would prevent the government from posting Social Security numbers on publicly accessible sites.

"But the government can't put the numbers online and then turn around and prevent the public from using those numbers," Willis said. "This is a grossly misplaced bill that attempts to mask the fact that Virginia's lawmakers have failed to prevent Social Security numbers from being placed online in the first place."

In an e-mailed response to a request for comment this week, Willis said that the ACLU is prepared to litigate against the amended privacy law, "unless something happens to change our mind" between now and July 1.

An aide to State Sen. Edward Houck, a Democrat who was one of the main backers of the bill, said on Monday that Houck handles press inquiries himself and would respond to a request for comment on the issues raised by Ostergren. However, he couldn't be reached before publication time. Similarly, members of Virginia's Freedom of Information Advisory Council, which also backed the measure, couldn't be reached for comment.

Copyright © 2008 IDG Communications, Inc.

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