Data brokers and other companies providing similar services outrage us, the citizens, when our private information is sold as commodity over the Internet. Well, the concern augments when it is the government, municipal, state, or federal, who publishes and sells over the Internet "public information” containing our private data. Who does not get nutty about this? What do people do when they see that their state government is publishing their social security numbers and selling them, along with other information, online? This article reports a Virginia case involving a disgusted citizen, and her reaction to the state's sale of land records that included people"s social security numbers (SSNs).
In Ostergren v. McDonnell, 643 F. Supp. 2d 758 (2009), a United States district court for the district of Virginia had to decide an injunction involving a citizen’s website that duplicated the public information displayed in a state’s website containing land records and people’s SSNs; the distinctiveness of this citizen’s website is that she only included there the land records and SSNs of the Virginia’s legislators, public officials, and court clerk’s employees. Obviously, these officials and employees did not like this…. and they claimed that the citizen’s website violated Virginia state law. Virginia’s Personal Information Privacy Act (PIPA) has a provision that prohibits an individual from communicating another individual’s social security number to the general public. Section 59.1-443.2 of Va. Code Ann. §§ 59.1-442 - 59.1-444.
The state of Virginia had long provided access to public land records. Yet, these records were made available online through a system called “secure remote access” (SRA). Anyone could register and pay a nominal fee to access Virginia’s land records online. Some of these records contained people’s SSNs, and, therefore, they were accessed by those registered with the SRA. In 2007, Virginia law required court clerks to redact SSNs from land records so they were not available online. This provision of law, however, was only complied with when the General Assembly provided funds to comply with the redaction process. The General Assembly had not provided adequate funding to accomplish redaction for all jurisdictions. Thus, SSNs were at plain view. Ostergren, a citizen advocate of privacy rights, registered a website and included there public land records displaying SSNs that happened to belong to state legislators, public executives, and court clerks. Obviously, Ostergren’s intention was to show these public officers how intrusive the display of one’s SSN online was. In other words, Ostergren’s website was an “object lesson” or for “shock value” tool.
The Attorney-General of Virginia claimed that Ostergren’s website was in violation of PIPA. The court ordered an injunction against enforcement of PIPA against Ostergren’s website claiming that Ostergren’s website, as it existed at the time of filing the injunction, was protected by the First Amendment to the United States Constitution. Ostergren then sought an expansion of the injunction’s ruling as to include protection of her website any time in the future as well. The court ruled for Ostergren and expanded the injunction ruling.
The court held that “a permanent injunction will be entered against enforcement of Va. Code. § 59.1-443.2 against any iteration of Ostergren's website, now or in the future, that simply republishes publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as an effort to reform Virginia law and practice respecting the publication of SSNs online.”
The court considered that “the public interests in free speech and public security were best balanced by entry of a narrowly tailored injunction that allowed plaintiff to publish the SSN-containing records of state legislators, state executive officers and clerks of court, those who actually could act to correct the problem of identity theft, but that foreclosed wholesale publication of the SSN-containing records of innocent members of the public who did nothing to cause the problem and who could do nothing to change the law or appropriate or expend funds to address the problem.”
It is interesting to see this double standard. State officials did not care about publishing and selling people’s land records and SSNs; at least not until their own records were visible and in public view. Then, that display did violate state law. Well, good for Mrs. Ostergren, and for the court who wisely decided this case as a matter of public concern and free speech. That is the free speech that sometimes moves consciences.