Constitutional Law - First Amendment - Fourth Circuit Holds That Republishing Social Security Numbers Gleaned from Online Public Records Is Protected Speech

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CONSTITUTIONAL LAW--FIRST AMENDMENT--FOURTH CIRCUIT HOLDS THAT REPUBLISHING SOCIAL SECURITY NUMBERS GLEANED FROM ONLINE PUBLIC RECORDS IS PROTECTED SPEECH.--Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010).

With the advent of the internet, states like Virginia have placed many public records online, (1) causing concern that widespread access to these records may "increasingly pos[e] a serious threat to privacy in the Information Age." (2) Recently, in Ostergren v. Cuccinelli, (3) the Fourth Circuit held that a Virginia statute prohibiting the posting of records displaying Social Security Numbers (SSNs) gleaned from a government-run internet database violated an individual's FIRST AMENDMENT right to free speech. (4) The court indicated that--because the case involved a conception of privacy based on control rather than on secrecy (5) and the government was not responsible for the initial disclosure of information (6)--a new narrow tailoring test ought to be adopted. On its face, the narrow tailoring analysis used in Ostergren represents a departure from the test applied in precedent. However, it is difficult to determine whether the differences between the old and new tests are significant since the Fourth Circuit's articulation in Ostergren is unclear in two critical respects--first, it fails to clearly articulate the contours of the new analysis, and second, it gives little guidance regarding the application of this analysis. As a consequence, the test could lead to confusion among both those seeking to comply with and those attempting to apply the new narrow tailoring requirements.

By summer 2008, Virginia had made over 200 million land records obtainable through an online "secure remote access" system. (7) Many of these records initially contained SSNs, which lawyers included on real estate documents. (8) Recognizing privacy concerns, 105 counties completed a redaction process to remove SSNs by July 2008, (9) with the fifteen remaining counties reporting that the process was underway; records were kept available online throughout. (10) Privacy advocate Betty Ostergren established the website The Virginia Watchdog, posting examples of internet-accessible public records containing government officials' SSNs to oppose the practice of making such records available online. (11) Virginia responded by amending its Personal Information Privacy Act (12) to bar Ostergren from reposting these documents. (13) She filed suit, asserting that the revised statute was unconstitutional as applied to her (14) and seeking declaratory and injunctive relief. (15)

In an opinion by Judge Payne, the district court rejected Virginia's argument that the revised statute was constitutional as a generally applicable law. (16) The court reasoned that Ostergren's website was protected speech (17) and further ruled that Virginia's own treatment of SSNs indicated that it did not consider the privacy right in SSNs "a State interest of the highest order" that could justify overriding the interests protected by the First Amendment. (18)

The Fourth Circuit affirmed in part and reversed in part. Writing for the panel, Judge Duncan (19) tackled two inquiries: whether the dissemination of SSNs qualified as speech protected by the First Amendment, and if so, whether restricting SSN republication could nevertheless be constitutionally permissible. (20) The court first upheld the determination that Ostergren's republication of SSNs was protected speech, reasoning that "drawing attention to the problem [of mismanagement of sensitive documents] by displaying those very documents" was a form of political expression. (21) The court acknowledged that a compelling state interest might be endangered by the republication of SSNs, (22) however, and stated that it would be necessary to determine whether Virginia's statute could survive First Amendment scrutiny.

Judge Duncan began this evaluation by emphasizing that the extent of First Amendment protections must be weighed against "the 'right of privacy' which the Supreme Court has also recognized. …