Information Revelation: First Amendment v. SSN Privacy

The 4th Circuit ruled last week that a Virginia woman could continue to publish government officials’ Social Security numbers online as part of her crusade against government violations of privacy on the internet.

Betty “B.J.” Ostergen, an information privacy advocate, has been posting government employees’ personal data, including SSNs, on her website TheVirginiaWatchdog.com since 2003. The website is designed to bring attention to the fact that Virginia state agencies frequently post land records containing personal information, including SSNs, online. After this practice was made public knowledge, the state has made attempts to redact the SSNs; however, these efforts have been largely unsuccessful. Indeed, despite the obvious concerns about identity theft, by 2008 the public had online access to over 200 million Virginia land records.

By displaying the SSNs of government officials from Virginia, Ostergen’s website seeks to draw attention to the fact that the state is displaying information most people would not wish to be publicly displayed. Notably, Colin Powell, a property owner in Virginia, had his SSN included on the website.

State lawmakers took action to outlaw Ostergen’s actions. The Virginia state legislature passed legislation prohibiting Ostergen’s practice, saying the state’s interest in prevailing identity theft trumps her First Amendment rights. In response, Ostergen filed a First Amendment complaint against state Attorney General Kenneth T. Cuccinelli II, who agreed not to prosecute Ostergen under the new law during the trial.

The 4th Circuit three-judge panel upheld the majority of the district court’s ruling. The panel disagreed with the state’s claim that the Social Security numbers did not deserve constitutional protection because they make identity theft easier and are not part of the “forum of ideas.” Rather, the court wrote, “the unredacted SSNs on Virginia law records that Ostergen has posted online are integral to her message. Indeed, they are her message. Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.” The court also noted that the state cannot punish Ostergen for posting on her website the same public records that the government makes available online.

However, the 4th Circuit disagreed with the district court on one issue: the posting of non-Virginian non-government officials’ SSNs. According to the lower court, only the information of those who could fix the problem, i.e. Virginia legislators, court clerks, and other public officials, should be exposed. The 4th Circuit said this was too limited. “Under our First Amendment analysis, Ostergen’s constitutional right to public Virginia law records containing unredacted SSNs does not depend on the political statute of people whose SSNs are compromised,” wrote the court.

This ruling makes interesting points about free speech, privacy, and public records. In a largely unexplored area of the law, it raises big questions about the power to differentiate between the government’s and private individual’s right to speak on the internet. Namely: To what extent can you differentiate between government speech and private speech online? Furthermore, online privacy is an issue that may well come up again in the very near future, possibly in the context of online health records.

- Donna Baldry

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