- Associated Press - Tuesday, July 27, 2010

RICHMOND, Va. (AP) — A Virginia privacy advocate can post public records containing Social Security numbers of private citizens as well as government officials on her website, a federal appeals court ruled Monday.

The court agreed with B.J. Ostergren’s claim that a 2008 state law prohibiting anyone from making Social Security numbers available to the public violated her First Amendment rights.

Ms. Ostergren posts the records on her website, TheVirginiaWatchdog.com, to publicize her message that governments are mishandling Social Security numbers and to prod them to correct the problem. Many of the documents are Virginia land records that court clerks have made available on government websites without redacting Social Security numbers.

The General Assembly passed legislation prohibiting Ostergren’s practice, saying the state’s interest in preventing identity theft trumps her First Amendment rights. A three-judge panel of the 4th U.S. Circuit Court of Appeals disagreed.

“The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message,” Judge Allyson Duncan wrote in the unanimous opinion. “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 agreed that the state cannot punish Ostergren for posting on her website the same public records that the government makes available online.

“Ms. Ostergren’s most powerful advocacy weapon has been to demonstrate to the public how bad a job the government is doing to protect our online privacy rights,” said Kent Willis, executive director of the ACLU of Virginia, which represented Ostergren. “The government responded, but by trying to silence Ms. Ostergren.”

The Virginia attorney general’s office did not immediately respond to a request for comment.

The case is not completely settled because the panel disagreed with U.S. District Judge Robert E. Payne, who had issued a ruling that generally favored Ostergren, on the scope of her First Amendment rights. The panel sent the matter back to him for revision.

Mr. Payne’s ruling had allowed her to post only the Social Security numbers of Virginia legislators, court clerks and other public officials who are in a position to correct the problem — not the numbers of private citizens or government officials from outside Virginia. The appeals court said that was too limited.

“Under our First Amendment analysis, Ostergren’s constitutional right to publish Virginia land records containing unredacted SSNs does not depend on the political status of people whose SSNs are compromised,” Ms. Duncan wrote.


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