4th Circuit, Blogging, Daniel Solove, Eugene Volokh, Free Speech, Privacy

Fourth Circuit Decides First Amendment Trumps Social Security Number Privacy

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Court clerks in Virginia may be shaking their fists at the Fourth Circuit today. In an interesting ruling on free speech, privacy, and public records, the court ruled that an angry blogger has the right to publish public officials’ and court clerks’ Social Security numbers in order to protest the fact that Virginia puts records online that publish citizens’ social security numbers. We skimmed the opinion, but didn’t see a citation to Hammurabi.

B.J. Ostergren has been writing TheVirginiaWatchdog.com since 2003 to bring attention to the fact that state governments play fast and loose with people’s Social Security numbers when putting land records online. Her advocacy got many of them to actually start attempting to redact SSNs from the documents before putting them online, but the system was still imperfect.

She started posting land records containing unredacted SSNs, which led the state to pass a law in 2008 to make what she was doing illegal. She sued and the courts supports her, though the Fourth Circuit eliminated some conditions imposed by the district court…

From the Fourth Circuit opinion, by Judge Allyson Duncan:

The unredacted SSNs on Virginia land records that Ostergren 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.

U.S. District Judge Robert E. Payne ruled in Ostergren’s favor last year but set some conditions: no posting of private citizens’ Social Security numbers (if you can’t fix the problem, your Social Security number shouldn’t be exposed); and no posting of non-Virginian public officials’ information. Poor Colin Powell has property in Virginia, and had his Social Security number slapped up there, for example. The Fourth Circuit disagreed with Payne, finding that Ostergren’s constitutional right to free speech extends outside Virginia and to private citizens. So watch out. From the opinion:

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Despite this success, Ostergren’s website has also contributed to the underlying social concern that motivates her advocacy. Because one can visit her website and find public records showing SSNs without needing to register or input search terms, Ostergren makes Virginia land records showing SSNs more accessible to the public than they are through Virginia’s secure remote access system. Potential wrongdoers not experienced or motivated enough to register for secure remote access might nonetheless stumble upon Ostergren’s website and obtain SSNs. Indeed, one person has pleaded guilty to using Ostergren’s website to obtain fraudulent credit cards.

The Court relied heavily on prior cases granting protections to the press when publishing info from private records. And because these issues around online privacy and blogging are so novel, some law professors got shout-outs for their law review articles, including Eugene Volokh, Dan Solove, and Danielle Citron.

Let’s hope this leads state governments to be more careful with SSNs. And that identity thieves don’t get wind of the ruling.

Ostergren v. Cuccinelli [U.S. Court of Appeals for the Fourth Circuit]
Court OKs Web Posting Of Social Security Numbers [Associated Press]
Court upholds right to publish Social Security numbers [Richmond Times-Dispatch]

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