Appeals court says posting of personal data is free speech

A Virginia woman who protested the government’s perceived mismanagement of sensitive personal data by posting unredacted information from government documents online can continue her crusade, a federal appeals court has ruled.

Betty "B.J." Ostergren, a self-proclaimed privacy rights advocate, created a website called The Virginia Watchdog to protest the availability of Virginians’ personal information on the Internet. On her website, she posts government employees’ personal data, including Social Security numbers, to draw attention to the fact agencies frequently post unredacted personal information online.

After the state legislature passed a law that prohibited re-posting of Social Security numbers even if already available online — an action she claimed was geared toward stopping her website — Ostergren brought a lawsuit claiming her First Amendment rights had been violated.

The U.S. Court of Appeals in Richmond (4th Cir.) agreed with her this week when it upheld a lower federal court ruling in Ostergren’s favor.

The state of Virginia argued that the unredacted numbers were unprotected speech because they facilitated crime and did not put forth any ideas, but the court ruled that prohibiting Ostergren’s re-posting of truthful, lawfully obtained information was not narrowly tailored to protect the state’s interest in individual’s privacy.

“The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message. Indeed, they are her message,” Judge Allyson Kay Duncan wrote in the court’s opinion. “Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.”

Ostergren was represented by the American Civil Liberties Union of Virginia.