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Lawsuit Debates Who Can Display Social Security Numbers Online

By David Bloys - News for Public Officials - June 22, 2008.

Maybe you’ve never heard of B.J. Ostergren, but she knows a lot about you. She knows where you live and how much you pay to live there. She has your driver’s license number, your signature, credit card and bank numbers and she has your Social Security number. Likely as not, she has the goods on your parents and children as well. She gathered it all from government websites. She wants the state to stop displaying your private data online but a new law in Virginia says government agencies have an exclusive right to display private data contained in Public Records online.  Now Ostergren is taking her battle  to federal court.

Ostergren has gleaned from online government records the Social Security numbers of many prominent people — Jeb Bush, Colin Powell, Porter Goss and Tom DeLay among them — and posted the documents on her own Web site to demonstrate government’s failure to protect individuals’ privacy.

"I'm not going after the little guy, I'm going after people of prominence that could have some power to do something about this," Ostergren said.

Ostergren’s website, TheVirginiaWatchdog.com advocates against making personal information available on the Internet. The website includes Public Records obtained by Ostergren from government websites that include the Social Security Numbers of public officials. By posting these documents, Ostergren hopes to illustrate the type of information available on government websites, and to prod officials to take action.

Perhaps most offensive to Virginia officials are the links Ostergren posts on her site that document just how easy it is to find documents containing Social Security numbers and other private data belonging to Virginia's own legislators, judges and county officials.

In March, Virginia legislators reacted to Ostergren’s website by amending a state law prohibiting anyone except government agencies from posting private data online. Under the previous law, individuals were prohibited from disclosing Social Security numbers obtained from private sources, but millions of Public Records containing Social Security numbers and other private information are available in Virginia on the state’s own websites.

Government websites have become a rich source of data needed by terrorists, identity thieves and stalkers.

Experts say terrorism and identity theft go hand in hand. The al-Qaida training manual US troops found on a laptop computer in Afghanistan includes provisions for trainees to leave camp with five fake personas, says Judith Collins, an identity theft expert, who uses a copy of the manual to train law enforcement officials. Terrorists are regularly schooled in the art of subsisting off credit card fraud while living in the United States, Collins says. The manual also instructs would-be terrorists on the easiest way to find the information they need.

According to former Secretary of Defense Donald Rumsfeld, speaking on January 15, 2003, the al Qaeda training manual tells its readers, "Using public sources openly and without resorting to illegal means, it is possible to gather at least 80 percent of all information required about the enemy."

The concept of document security by paid or free subscription to government websites has also proven deadly for at least two young women. Amy Boyer and Rebecca Schaeffer both lost their lives as a result of stalkers accessing their information through government websites. The 1989 murder of TV actress Rebecca Schaeffer resulted in the often-ignored National Driver Protection Act which makes it illegal for companies to buy driver records from state governments. Cases abound of government websites failing to protect constituents when publishing private data contained in Public Records online.

In an advisory dated August 8th, 2006, Ken Schrad, Director of Virginia's Division of Information Resources announced that the State's Bureau of Insurance Website published the Social Security numbers of every insurance agent licensed in the state. He advised the state's 202,000 agents, many of whom sell identity theft insurance, to watch for any unusual activity on their bank or other financial accounts that might result from the massive breach.

Under the new law, Virginia citizens are prohibited from repeating the state’s mistakes by publishing copies of public documents containing Social Security numbers on private websites or Blogs. But the law allows Virginia’s “official” websites to continue trafficking in identities with almost complete abandon. Virtually anyone-- anywhere in the world with an internet connection and twenty five dollars for a subscription to the county website may be granted remote online access to your Social Security number and other private data.

Earlier this month, the American Civil Liberties Union of Virginia filed a lawsuit on Ostergren’s behalf in federal court in Richmond. Ostergren is challenging the law that targets her website on grounds it violates the First Amendment’s protection of freedom of speech.. She has launched a federal lawsuit that questions who if anyone, has the right to distribute your private/public papers online for the entire world to see. At issue is who has the right to traffic in your identity.

When Virginia Governor Timothy M. Kaine signed the bill on March 11, he and others touted the bill as an effort to curb identity theft, suffered by an estimated 9 million Americans each year. But even the lawmaker behind the bill (Sen. R. Edward Houck) acknowledged that stopping people like Ostergren from publishing the Social Security numbers not protecting Virginians from identity theft was the true goal of the legislation.

Ostergren says her tactic of bringing bold and personal awareness to elected officials has worked in other states, such as Vermont, New York, New Mexico, California, Ohio and Florida, where she has fought to get personal information removed from online records. Only in her home state have lawmakers responded by unanimously passing legislation making Ostergren’s tactics illegal and punishable by a $2,500 civil penalty.

Ironically, the questioned statute takes effect on July 1, the same date by which circuit court clerks across the state are required to make all land records available on the Internet. Land records consist of deeds and mortgage documents, but may also include legal judgments, such as divorce decrees and probate, that often contain Social Security Numbers and other personal information. The ACLU is seeking an injunction prohibiting the state from enforcing the law against Ostergren.

 “The ACLU is an advocate for laws that prevent the government from allowing Social Security Numbers to appear on publicly accessible websites,” said ACLU of Virginia Executive Director Kent Willis, “but when the government puts records online that do contain the numbers, it can’t then turn around and prevent the public from disseminating them.”

 “Instead of the Virginia General Assembly dealing with the real problem of Social Security numbers being put on Web sites by circuit court clerks, they decided to target me because I posted theirs,” Ostergren told the Washington Examiner.

“This is a wrong-end-up law that attempts to conceal the fact that Virginia’s lawmakers have failed to prevent Social Security Numbers from being placed online in the first place,” added Willis. “If Social Security Numbers were removed from Public Records when they are placed online, there would be no need for this law.”

While Virginia already has a law requiring Social Security numbers to be redacted from documents posted on the Internet, the legislature failed to fund the privacy statute. Redaction efforts in other states have proven to be largely ineffective and extremely expensive.

The ACLU lobbied against the passage of Virginia’s new law prohibiting anyone except the government from posting Social Security numbers online and asked the Governor to veto it.

When she found out in 2002 that every locality in Virginia would begin posting personal information online, she started The Virginia Watchdog from her Hanover County home.

The lawsuit, which alleges that the law violates Ostergren's First Amendment rights, points out that shutting down Ostergren’s website will do nothing to protect Social Security Numbers, since all of the documents on the site are also available on government websites. In the 1989 case The Florida Star v. B.J.F., the Supreme Court observed that “where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source [government websites] of its release.”

Today millions of people from all over the world routinely search and seize our most sensitive documents from government websites. The records can then be used by international criminals to take your property, homes - even your life. Surely this wasn't what the framers of the constitution had in mind when they promised in the Fourth Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

ACLU of Virginia Legal Director Rebecca K. Glenberg is providing legal representation to Ostergren. A copy of the ACLU’s complaint can be found online at http://www.acluva.org/docket/pleadings/ostergren_complaint.pdf.

Update: To learn the judges decision please read:

Free Speech And The Hypocrisy Of Government

 

 

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