Fourth Circuit Finds Right to Free Speech Beats Out Privacy Concerns in Online SSN Publication Case: On July 26, 2010, the United States Court of Appeals for the Fourth Circuit held in Ostergren v. Cuccinelli, No. 09-1796, that blogger Betty Ostergren, could not be punished for publishing the Social Security Numbers of public officials in Virginia to protest the fact that Virginia publishes land records online that include unredacted citizens’ social security numbers. Virginia’s clerks of court began publishing land records on the Internet during the 1990s. Virginia does not redact SSNs from land records maintained at local courthouses, even though Virginia laws require that such records remain publicly accessible. As a result, many of the records published online included unredacted SSNs. To protest what she saw as a major privacy violation, Ostergren obtained land records of public officials and courts of clerks from the state-maintained records available online and re-posted the records, which included the unredacted SSNs.
In its decision, the Fourth Circuit rejected the argument that Social Security Numbers are categorically unprotected speech that may be prohibited entirely. Under Virginia law, no person may intentionally communicate another individual’s social security number to the general public. Virginia argued that Ostergren violated this law, and she challenged the law on First Amendment grounds. The Fourth Circuit agreed with Ostergren’s interpretation, noting that she was acting similar to a news media outlet that republishes publicly available information. Instead of prohibiting protected speech like Ostergren’s, the Court stated, “Virginia could curtail SSNs’ public disclosure much more narrowly by directing clerks not to make land records available through secure remote access until after SSNs have been redacted.”