We have all known for a long time that our public real estate records contain Social Security numbers.  Many advocates have worked long and hard to let our government know about the hazards of placing those records in the public domain of the Internet; yet, counties across the country continue to do so.  Some states have even mandated that those records be available online.  So, the big question is... Can the government do that and then pass a law prohibiting anyone else from doing the same thing?  The United States District Court for the Eastern District of Virginia has provided an answer.

For many years now, the Virginia county offices have been providing their real estate records online with specific authorization from the legislature to do so.  Until 2007, the Virginia law did not require Social Security numbers to be redacted.  When Virginia finally passed a law requiring redaction, it was conditioned on the General Assembly providing funding, but they never did make funds available.  That failure to fund redaction plays a major role in the court's decision (and I will explain why a little later).

In 2002, B.J. Ostergren launched her Web site, The Virginia Watchdog.com.  Ostergren posts examples of public records that she obtains over the Internet which contain Social Security numbers.  Though the Virginia law establishes so-called "secure remote access," Ostergren has shown that for a small fee anyone can obtain these documents.  The documents she posts, as an "object lesson," are mainly those of prominent legislators and clerks of courts, both for "shock value" and because she believes that they are principally responsible for making these records available online.

Among the records she makes available are: former Governor and Mr. John Ellis "Jeb" Bush's deed, Congressman Tom Delay's federal tax lien, Clerk of Arlington Circuit Court David A. Bell's deed of trust, Virginia Senate Minority Leader Richard L. Saslaw's deed of trust, and many others.

On her Web site, Ostergren says:

To all Virginia citizens past and present - As of July 1, all Virginia Circuit Court Clerks now have remote access to deeds, mortgages, tax liens, name change documents, Powers of Attorney, Wills plus other probate records (complete with bank account numbers), judgments, etc.   All of these records contain a lot of personal information.   Anyone can sign up to gain access to the records which contain SSNs, DOBs, mother's maiden names, minor children's names, financial account numbers, and signatures.  The citizens of VA have paid for the records to be put online once through fees collected by the Clerks, but you will have to pay a fee again to get access to the remote access systems.  That in itself is discriminatory since if you don't have $$$, you cannot gain access to records required by law to be open to everyone.   You will have to drive to a courthouse to see records that others are looking at from their homes or offices.  (Another case of the "haves" winning and the "have nots" losing out.)  And even the "Feds" created records with SSNs on them which are available on the World Wide Web.

She definitely sparked a lot of controversy and drew some much needed attention to the issue of publishing these records on the Internet.  However, rather than respond by requiring the records removed from online access, or take further action with redaction mandates, the legislature took aim directly at Ostergren (or so it appears).  This year, Virginia passed an amendment to the Virginia Personal Information Privacy Act to outlaw Ostergrens public protest against posting public records online. The provision was to take effect on July 1, 2008.

§ 59.1-443.2.  Restricted use of social security numbers

A. Except as otherwise specifically provided by law, a person shall not:

   1. Intentionally communicate another individual's social security number to the general public;
. . .

Willful violation of the statute is punishable by civil penalties of up to $2,500, plus court costs, per violation.  The American Civil Liberties Union filed a lawuit on Ostergren's behalf to challenge the constitutionality of the statute.  Though the government has some leeway to limit "free speech," political speech is afforded much higher constitutional protections than other types of speech, such as commercial speech. 

In a memorandum opinion, the court found that The Virginia Watchdog Web site, although not a traditional news media source, undertakes the "watchdog" role protected by the First Amendment.  It is analytically indistinguishable from a newspaper.

It is difficult to imagine a more archetypal instance of the press informing the public of government operations through government records than Ostergren's posting of public records to demonstrate the lack of care being taken by the government to protect the private information of individuals.

The court cited a couple of Supreme Court cases that are surely to be found in any law school Constitutional Law textbook.

At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.

Cox Broadcasting v. Cohn, 420 U.S. 469 (1975)

[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.

Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)

The Daily Mail case allows a state to limit this type of speech when there is "a need to further a state interest of the highest order."  It was on this issue that the court hammered the State of Virginia.  The court again cited Cox Broadcasting.

By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.

Then, the court discussed whether Virginia had a state interest of the highest order to justify enacting a statute to prevent Ostergren from publishing the public records, containing Social Security numbers, on the Internet.

[T]he SSN's in the court records are without a doubt personal in nature and are entitled to privacy because they are the quintessential personal identifiers; and SSN's are susceptible to misuse that can cause great harm, such as identity theft.  Therefore, it should no be difficult for a court to conclude that the protection of SSN's from public disclosure should qualify as a State interest of the highest order.  However, it is not the perception of a federal court that defines a State interest of the highest order. Instead, it is the State's view and its conduct that, under accepted First Amendment jurisprudence, must supply the basis for such a conclusion.

In this case, the State's own conduct in making those SSN's publicly available through unredacted release on the Internet significantly undercuts the assertion made by the State in this litigation that the State actually regards protection of SSN's as an interest of the highest order.  It becomes even more difficult to accept the State's "interest of the highest order" argument on this record because, when the State realized the harm to which its practice was exposing its citizens, the legislative response did not signal that the General Assembly considered protection of SSN's to be an interest of the highest order.  Indeed, the Virginia law which required redaction of SSN's from land records already online allowed the clerks of court a period of three years to accomplish the redaction task.  Even that deadline was not to take effect unless funding to support the effort was provided by the legislature, and the record shows that the funding was not provided by the General Assembly.

It is not possible on this record to conclude that the State regards preventing disclosure of SSN's through online public land records to be an interest of the highest order.

. . .

Certainly. . . several Supreme Court decisions rather clearly pointed the way to articulating the kind of interest that could override the interests protected by the First Amendment.  That the Virginia legislature and the clerks of court did not follow that guidance is not a matter to be remedied by a federal court, no matter how much it considered a remedy to be necessary.

Basically, the court was willing to find that there is clearly a compelling government interest in protecting citizens from having their Social Security numbers published on the Internet.  That is so obvious that the court would have willingly conceded the issue in favor of the State.  However, the state has completely disregarded the interest of its people by caving to the whims of the real estate industry by making the decision to post unredacted documents online.  Clearly, if the State believes that there are sufficient "commercial" reasons for making the information available on the Internet, it would be extremely disingenuous for them to attempt to stifle political speech which is afforded much greater protections in this country.

The court even noted that "the public records with unredacted Social Security numbers posted on Ostergren's Web site involve more than just the individual interest of the speaker and its specific business audience."

[I]t would seem an anomalous result to accord more First Amendment protection to the publication of public records for incidental purposes than for the primary purpose of alerting the public to issues with the documents themselves.

The court did not completely declare the statute unconstitutional, but they did hold that it was unconstitutional as applied to Ostergren's Web site as it presently exists.

The message of the court is very clear - the State must clean up its own mess before it can effectively enforce this type of legislation.  States and counties have typically disregarded the privacy concerns of its citizens with regard to publishing public records online.  Many states have even allowed, and encouraged, citizens to have their Social Security numbers removed from driver licenses.  There is even considerable legislation prohibiting the collection of Social Security numbers in commercial transactions.  Still... the government has no compunction when it comes to freely distributing them in the public records.  That is the ultimate in government hypocrisy.

Robert A. Franco
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