Posting of Social Security numbers upheld, mostly

A Virginia woman can continue posting public officials’ Social Security numbers on her Web site, in her protest against what she sees as lax personal privacy standards for public records, but she may not publish the Social Security numbers of private citizens, a federal judge ruled this week.

B.J. Ostergren had told the court she did not want to include everyday people in her online campaign against the inclusion of Social Security numbers in public court filings. She was represented in court by the ACLU of Virginia; legal director Rebecca Glenberg said Ostergren is satisfied with the balance of First Amendment and public interests the judge struck. 

Ostergren made a name for herself with her Web site, thevirginiawatchdog.com, where she posted public records that included the Social Security numbers of local lawmakers and other prominent officials. Her aim was to show that private identifying information is accessible to would-be identity thieves. She filed suit about a year ago over a provision in Virginia’s Personal Information Privacy Act that banned the dissemination of Social Security numbers.

U.S. District Judge Robert Payne first issued an injunction last August barring enforcement of the law against Ostergren’s site on constitutional grounds. In an opinion issued Tuesday, Payne went further to create a permanent injunction against enforcement of the law against her site — but, in a curious caveat, only where she aimed to embarrass public officials.

"The public interests in free speech and public security are best balanced by entry of a narrowly tailored injunction," Payne wrote, "that allows Ostergren to publish the SSN-containing records of State legislators, State Executive Officers and Clerks of Court, those who actually can act to correct the problem, but that forecloses wholesale publication of the SSN-containing records of innocent members of the public who did nothing to cause the problem and who can do nothing to change the law or appropriate or expend funds to address the problem."

In other words, she could still be punished if, theoretically, she were to decide to publish certain public records, lawfully obtained from the state.

Payne granted that he was affording Ostergren a more circumscribed freedom than the Supreme Court saw fit for the press in Florida Star v. B.J.F, where it held that a newspaper could not be penalized for publishing the name of a crime victim.

Clearly concerned about a threat of identity theft, Payne sought to "accommodate the First Amendment rights of Ostergren" without shortchanging "the innocent members of the public who have no control of the release of the public records containing their SSNs."

"Obviously, ideally. we would have had an injunction that flatly stated that there would be no enforcement" of the statute against Ostergren’s Web site, said Glenberg, of the ACLU. "But the reason why we were satisfied with this somewhat narrower ruling is that the documents pertaining to government officials are really the ones at the heart of B.J.’s advocacy. And she in fact stated that in court.’"

The judge’s delineation of a class of people who he said deserve greater protection from scrutiny in this context — a class defined, somewhat ambiguously, by their inability to "act to correct the problem" — did seem odd to some transparency advocates. But while Ginger Stanley, of the Virginia Press Association, said she is "perplexed" by the ruling, she noted that it came in a case with very narrow implications.

"We truly believe that government cannot make records available, then restrict what the public does with them," she said. But Stanley said she wouldn’t be terribly concerned about Payne’s decision unless it someday came up in another case.