Federal Court Says State May Not Prevent Privacy Advocate from Disseminating Social Security Numbers Found on Government Websites

Richmond, VA - A federal court in Richmond has ruled that privacy advocate B.J. Ostergren may post on her website public records that contain the Social Security Numbers of Virginia legislators, Virginia Executive Officers and Clerks of Court, despite a 2008 state law that prohibits dissemination of such information.

U.S. District Court Judge Robert E. Payne found that the law, commonly referred to as the "anti-B.J. law," violated Ostergren's First Amendment rights. Other courts, including the U.S. Supreme Court, have held that the government cannot make information available to the public, but then restrict what the public can do with it.

Ostergren runs the website TheVirginiaWatchdog.com, which advocates against making personal information available on the Internet. The website includes public records obtained by Ostergren from government websites that include the Social Security Numbers of public officials. By posting these documents, Ostergren hopes to illustrate how easy it is to obtain private information available from government websites and to prod elected officials to take action to prevent such information from becoming available to identity thieves.

Under Virginia law, all land records are available on the Internet. These records include deeds and mortgage information, as well as legal judgments, such as divorce decrees, that may contain Social Security Numbers and other personal information.
 
"Both the ACLU and Ms. Ostergren support laws that prevent the government from allowing Social Security Numbers to appear on publicly accessible websites," said ACLU of Virginia Executive Director Kent Willis, "but the government can't make these records available to the public then restrict what the public does with them. That violates free speech."

"Instead of trying to kill the messenger, the Virginia General Assembly simply needs to make sure that Social Security Numbers and other private information are removed from our publicly available records," said ACLU of Virginia Legal Director Rebecca K. Glenberg.

The lawsuit, filed on June 11, 2008, points out that shutting down Ostergren's website will do nothing to protect Social Security Numbers, since all of the documents on her site are also available on government websites. In the 1989 case The Florida Star v. B.J.F., the Supreme Court wrote that "where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release."

Attorneys for the ACLU of Virginia were Ms. Glenberg and Frank Feibelman of Feibelman & Associates in Richmond.

To read the federal court's injunction order or Judge Payne's opinion, visit: www.acluva.org/docket/ostergren.html