A federal appeals court has ordered Virginia’s attorney general to back away from threats of suing a privacy advocate who publishes Social Security numbers of elected officials on the internet. The decision by the 4th U.S. Circuit Court of Appeals means Betty Ostergren avoids being sued by the state’s top law enforcement official for breaching a state law that prohibits publication of such information.
The Richmond, Virginia, court, however, stopped short of striking down the law, which was adopted in 2008 and carries civil penalties of about $3,500 per violation.
Instead, a three-judge panel said the regulation breached Ostergren’s First Amendment rights as they applied to her protected “political” speech. The court found that the purpose of Ostergren’s speech outweighed the privacy interests of the roughly three dozen public officials whose data was published on her website.
Ostergren published land records that contained Social Security numbers on her TheVirginiaWatchdog to protest the data being included in publicly available online local government documents.
The woman maintained that “seeing a document containing an SSN posted on my website makes a viewer understand instantly, at a gut level, why it is so important to prevent the government from making this information available.”
A three-judge panel of the appeals court agreed.
“We find particularly significant just how Ostergren communicates SSNs. She does not simply list them beside people’s names but rather provides copies of entire documents maintained by government officials,” the court said Monday. “Given her criticism about how public records are managed, (.pdf) we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech.”
Ostergren’s lobbying of the Virginia government to redact the Social Security numbers bore fruit. The state is in the process of redacting 2 million records.
The woman’s attorney, Rebecca Kim Glenberg of the American Civil Liberties Union, noted that the court was silent on whether a different set of circumstances, such as Ostergren publishing the Social Security numbers for nefarious reasons, would enjoy the same First Amendment protection.
“Because it was political speech, she had extra protection,” Glenberg said of the court’s decision.
A spokesman for Attorney General Kenneth T. Cuccinelli did not immediately respond for comment.
In May, a harsher Florida law imposing jail time for posting police officers’ home addresses or phones numbers was found to be an unconstitutional restraint on speech.
