The ACLU today defended a privacy advocate's lower court victory permitting her to publish the Social Security numbers of Virginia officials on her Web site.
Betty "BJ" Ostergren, of Hanover County, posted records with the Social Security numbers of 20 state officials to pressure them into keeping the numbers off government Web sites such as those maintained by court clerks.
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.
Virginia, like dozens of other states concerned about the use of the numbers in identity theft, enacted a law on July 1, 2008, that imposes fines on those who disseminate Social Security numbers, even ones found on state court Web sites.
Ostergren, represented by the American Civil Liberties Union of Virginia, filed a complaint aimed at stopping enforcement of the law. The ACLU says it is wrong for the state to punish her for publishing information the state makes available online.
In June, U.S. District Judge Robert E. Payne ordered Virginia to stop enforcing a law against Ostergren because it violated her free-speech rights. The Virginia Attorney General's Office appealed, and a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals heard arguments on the matter this morning.
"The speech in question, a nine-digit number, lacks any intrinsic speech component or message," E. Duncan Getchell Jr. argued for the Virginia Attorney General's Office. Instead, he called it "crime-facilitating speech."
But Judge Joseph R. Goodwin told Getchell that, "Ostergren is not advocating lawlessness. At most, she's inviting it." Judge Allyson Kay Duncan, wondered, how is what Ostergren is 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 then, they are still available on paper records at courthouses. "We can't close the public records to the citizens of Virginia and function as a government," said Getchell.
Rebecca K. Glenberg, with the ACLU of Virginia, argued there were steps the state could take to protect the numbers short of censoring Ostergren. Her posting of the numbers no more incites crime than someone posting online where to buy inexpensive firearms.
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 might rule.
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