Allegations of Official And Vendor Blunders
Speech And The Hypocrisy Of Government
reprinted with permission from
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.
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
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
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
[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.
Click Here to read or post comments about this article
For more on this please read
Debates Who Can Display Social Security Numbers Online
About the Author
Robert A. Franco has been in the title industry for nearly 20 years
in the state of Ohio. The owner of VersaTitle, a full service
abstracting and title company, and the founder and president of
Source of Title, Franco has dedicated much of his professional
career to the land records industry.
Get the newsletter