SSNs can stay on watchdog's Web site
Privacy activist challenges law that would have punished her for publishing Social Security numbers she got from public records
A newly enacted law prohibiting people from intentionally posting a person’s Social Security number online is unconstitutional as applied to privacy advocate B.J. Ostergren’s Web site, a federal district judge in Richmond ruled Aug. 22.
The new law imposes fines on the intentional posting of SSNs, but unlike the prior law, it makes no exception when those SSNs are taken off public records. Ostergren harvests SSNs from land records online in most Virginia counties and posts them online to graphically make her point that SSNs should not be posted online at all. Ostergren’s Web site, TheVirginiaWatchdog.com, has made news, in part because she posts the SSNs of many high-profile Virginians, including state elected officials, clerks of court and celebrity Jimmy Dean.
Ostergren challenged the law, which she says was an attempt to silence her, with the help of the ACLU of Virginia.
The state’s argument that keeping SSNs off the Internet was a compelling government interest was undercut by the state’s decision to require land records to be posted online with SSNs intact, and without providing funding to redact them, the court said.
The court also rejected the state’s argument that Ostergren could make her point without posting SSNs online. "Release of SSNs on the Internet is undoubtedly a matter of public concern, and the First Amendment does not dictate the means by which Ostergren can undertake her political advocacy," the court wrote.
The court ordered further briefing "on the propriety and scope of an injunction other than with respect to Ostergren’s website as it exists."
The challenged law came out of one of the Freedom of Information Advisory Council’s workgroups in conjunction with the Joint Commission on Science and Technology. Constitutional issues were raised by The Virginia Press Association, and the Virginia Coalition for Open Government disagreed with the removal of the public-records exemption to the prior law, but neither party’s objections carried the day.
In the court’s words
In the SSN-dissemination law unconstitutional as applied to a Web site, a federal district court summed up how Virginia arrived at the point it’s at today:
What happened here is simple. The State’s land records long have been maintained, and have been available for public inspection, in the courthouse. For several years, some of those records have contained SSNs and nonetheless have remained fully available for public inspection. Fully aware of those facts, the General Assembly and the clerks of court have made those records available on the Internet without redacting SSNs. In 2007, again fully aware that public land records contained SSNs, the General Assembly legislated that all land records be available online by July 1, 2008, again without requiring that SSNs be redacted before placing the public records online. The General Assembly recognized the propriety of redaction by requiring it to occur within three years provided that funding was made available to accomplish that task. Thereafter, the General Assembly did not [provide] that funding. Instead, it sought to address the problem by removing from a statute that prohibited making SSNs available to the public, an exception that permitted the publication of SSNs from already available public records.
In so doing, the Virginia legislature ignored existing Supreme Court decisions which required that States address problems of this sort by taking steps less drastic than sanctioning the publication of public records. Those same decisions also provided guidance about what could qualify as a State interest of the highest order, but the Virginia legislature did not conform to those requirements. Under the applicable Supreme Court decisions, the State cannot sanction Ostergren for publishing, as part of her advocacy, the public land records reproduced on her website.
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