Va. laws take hit in court

It's been a tough few weeks for the Commonwealth.

Despite being fought over by the candidates for president and vice president like she was the Corn Festival Queen, Virginia's had to endure the rains of Hanna, the price gouging of Ike and the scorn of the New York Times over its student voter-registration policies.

But perhaps it's the Virginia General Assembly that has most taken it on the chin, at least in court: On Aug. 22, a federal district court in Richmond struck down a law preventing the intentional dissemination of Social Security numbers, and on Sept. 12, the Virginia Supreme Court nixed the state's anti-spam law.

In the SSN case, the court really took the legislature to task, blaming it for creating the very situation the state now wanted to punish.

To protest the government's posting of land records containing SSNs online, privacy advocate B.J. Ostergren began harvesting SSNs from those records and posting them to her own Web site. A previous law permitted Ostergren's action so long as the numbers were taken from public records.

The 2008 General Assembly removed that exception and could have required Ostergren to pay $100 per violation.

The court wasn't buying the state's declaration that preventing the disclosure of SSNs thorugh online land records was an interest of the highest order:

"The record does not disclose when Virginia first started posting its land records online or when it became the practice for lawyers to place SSNs on documents filed in the publicly available land records. But, the parties agree that both practices have existed for several years. And, both parties agree that, in the past several years, identity theft has been steadily increasing and has been widely publicized. Indeed, several years ago, Virginia recognized that SSNs should be removed from drivers' licenses to afford protection from identity theft, replacing them with a different kind of identifying number that was not readily usable to falsify identity. . . .

"Mindful of these facts, the General Assembly, in 2007, enacted statutes that required the clerks of court to make all land records available on the Internet by so-called secure remote access by July 1, 2008. Also, in 2007, the General Assembly required the clerks, by 2010, to redact SSNs from land records before making them available online, but rendered that provision a nullity by conditioning its effectiveness on the availability of State funding and then declining to provide funding for redaction."

Continuing, the court said,

"The record here discloses no compelling reason for making land records available online. At oral argument, counsel for the Attorney-General advised that it was done at the request of the real estate industry. Whatever the reason, the settled law has long been that the burden of redacting private information from State records cannot be placed on those who would publish truthful information that is in records that the State had made available to the public."

The Virginia Supreme Court was more charitable, at least in its assessment of the state's motives and actions. In unanimously striking down the anti-spam law (thus overturning the conviction of Jeremy Jaynes, once said to be among the Top 10 spammers int he world), the court said the statute was too broad.

"That statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious, or other speech protected by the First Amendment to the United States Constitution."

Everyone knows the risks and dangers of identity theft, and how the Social Security number can be the key to a person's whole external identity. Everyone agrees that spam can range from the annoying to the dangerous, as it jams up servers necessary for crucial communications. But quick fixes aren't the answer. Not when they trample on free speech or access to truthful information.

The state must tread carefully when seeking to block communication in its many forms. Precedent from the U.S. and Virginia Supreme Courts have laid out a road map for limiting speech within the bounds of the constitution. The rules are different when the speech is purely commercial or when it has a political message. But generally the government has to identify an interest needing protection, and it has to show that the new law advances that interest and burdens no more speech than necessary.

Rather than flirt with a potentially unconstitutional law, all efforts should be made to follow the courts' road maps. It is no doubt tempting to ignore them with a chorus of constituents shouting in one's ear. The concerns those constituents have are real, but they are sometimes exaggerated, and not always in the broader public's interest.

What is clear from these two court rulings, though, is that while the interests of constituents --  be they individuals, organizations or business -- are important, the constitutional consequences of proposed laws are equally as important.

Add new comment

Filtered HTML

  • Allowed HTML tags: <a> <em> <strong> <cite> <blockquote> <code> <ul> <ol> <li> <dl> <dt> <dd> <p> <br> <h2> <h3> <h4>

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.