Mar 252010
 March 25, 2010  Posted by  Court, Featured News, Online

The Virginia Watchdog case was back in court this week. has been following this case and the efforts of Betty “BJ” Ostergren since 2006

If you’re new to the case, the matter is simple to explain:  BJ doesn’t want states putting your Social Security numbers online in their publicly available databases like land records and she doesn’t want them making such information available in their records if you go to the courthouse.   She has advocated for protecting and redacting information that could be used for identity theft.  As part of her tactics, she has occasionally posted public officials’ SSN that she obtained from publicly available databases.   In 2008, Virginia passed a law to make her conduct illegal — on the pretext of protecting SSN and reducing ID theft.   With the help of the ACLU, BJ successfully challenged the law, and the court held that the state could not restrict BJ’s First Amendment rights to post on her sites what the state was posting on its own site.  The judge was not sympathetic to the state’s claim that although they wanted to redact all SSN, it was costly and labor-intensive.  The court basically told the state that if they’re serious, they need to clean up their own act.

So now they were back in court on the state’s appeal of the judge’s ruling before a three-judge panel of the  4th U.S. Circuit Court of Appeals.  Frank Green picks up the story:

“The speech in question, a nine-digit number, lacks any intrinsic speech component or message,” E. Duncan Getchell Jr. argued for the attorney general’s office. Instead, he called it “crime-facilitating speech.”

The government is trying to prevent the gratuitous posting of the numbers on the Internet, he said. Getchell said she is obtaining public-record information and posting it, subjecting fellow citizens to criminal conduct.

But Judge Joseph R. Goodwin told Getchell: “Ostergren is not advocating lawlessness. At most, she’s inviting it.” Judge Allyson Kay Duncan wondered how is what Ostergren doing “distinguishable from her saying something we don’t like?”

Getchell said it would not be possible to remove all of the numbers from public records available online, and even if it were, the numbers still would be available on paper records at courthouses. “We can’t close the public records to the citizens of Virginia and function as a government,” Getchell said.

Rebecca K. Glenberg, with the ACLU of Virginia, argued that there are steps the state could take to protect the numbers short of censoring Ostergren. Her posting of the numbers no more incites crime than does someone posting where to buy inexpensive firearms, Glenberg said.

The solution is not to infringe on her speech rights but for the government to redact the sensitive information, Glenberg said. The ACLU argues that the numbers, used for shock value, constitute political speech protected by the Constitution.

It is not known when the panel will rule.

As shocked as I was a few years ago when I first read about BJ’s methods for calling attention to the issue of publicly exposed SSNs, I contacted her by email to discuss her strategy. Over time, I was persuaded that her advocacy strategy actually made some sense. Without her efforts, too many states might continue to be lax in redacting SSN from databases that are online. This case has undoubtedly cost her a lot in time, energy, and even money (yes, even with pro bono representation), and she’s doing it solely for the issue.

As ironic as it may sound that a privacy advocacy site like this one would endorse someone who is exposing personally identifiable information such as SSN online, tips its hat to BJ Ostergren and hopes that the 4th Circuit affirms the lower court ruling that the state cannot chill speech by enacting laws that prevent citizens from saying or publishing what the state itself is publishing. If Virginia wants to stop BJ, let them change their own public records laws so that SSN can be redacted in public records.

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