Friday, August 15, 2008

Judge hears arguments in privacy advocate’s (i.e. BJ Ostergren - The Virginia Watchdog) lawsuit!

I've got a little breaking news on BJ Ostergren's lawsuit against the Virginia government to report today. She sent me an AP article published today detailing the status of the case (now waiting for Judge's decision).

For those that need some refreshing, BJ Ostergren is the Virginia-based privacy advocate who has been fighting to stop county and state governments from posting public records containing Social Security numbers (among MANY other private pieces of information) on their Web sites.

With the help of the ACLU, she has been doing battle (as in sue the government) against an amendment to a Virginia law that bars individuals from disseminating any of those SSN numbers, even if they obtain them legally from public records.

In recent years, Ms. Ostergren has chronicled dozens of cases in which local governments have inadvertently exposed Social Security numbers and other personal data through their Web sites. As part of her strategy to highlight the seriousness of the issue, she started posting the Social Security numbers of public figures that she accessed via government sites on her Web site. You know, people like Jeb Bush and Colin Powell for instance. As one might surmise, this didn't make "the government" too happy.

Before I get to the article, I want to briefly touch upon what makes this trial so critical to our understanding of both what constitutes an individuals right to privacy and what in turn, constitutes a "public record".

I would argue that our constitutional right to privacy has been so distorted, diluted and subverted by Big Government and Big Business that it functions less and less as a tool to protect the rights of the public from those in power, and more and more about protecting those in power from the public.

Similarly, the concept of open government, and what should and should not be of “public record”, has also been distorted and subverted to such a degree that often times - rather than serving to educate the people on the important issues facing the country or giving us the tools to hold those in power accountable - it instead serves to violate our privacy.

It happens to be, that the case of Ms. Ostergren is a prime example of the disparity in how the principles of privacy and open government apply to us common folks versus those walking the halls of government and the corporate board rooms. Think about it. Government websites are posting the most private of information about people under the auspices that they are “public records” – including social security and bank account numbers.

A woman (Ostergren) begins demanding this private information be removed from government websites. The government refused so she started posting the private information of major political officials on her website, information she gleaned from the very government websites she was trying to reform. Rather than oblige, the government wrote a law making it illegal for a citizen to post the very same information they were.

So the government is arguing that they won’t black out our social security numbers on court records that they post because those qualify as “public records” - and are somehow important for the public to have access to - yet they outlaw anyone posting the same info about them? The old adage "Do as I say, not as I do" comes immediately to mind.

Black is white, white is black. If this isn't an example of the subversion of both the principle of privacy AND open government I don’t know what is.

The Associated Press Reports:

A federal judge said Thursday that it won’t be easy deciding whether a new Virginia law barring individuals from posting Social Security numbers on the Internet is unconstitutional.


The law targeted by Ostergren took effect July 1, the same day as another law requiring court clerks to post all land records online. Some of those records contain Social Security numbers, and the General Assembly hasn’t funded an initiative to block out those numbers.


Ostergren claims in her lawsuit that the government can’t publish Social Security numbers and then punish citizens for distributing the same documents. Attorneys for the state argue that Social Security numbers are not constitutionally protected speech and that the law is a reasonable attempt to prevent identity theft.

Payne at times sounded sympathetic to both sides as he questioned the lawyers on what he described as an area of law that “hasn’t become mature.”


Payne described the statute that Ostergren is challenging as a “stopgap measure” to combat identity theft until a more comprehensive remedy can be developed. But Rebecca Glenberg, an American Civil Liberties Union attorney representing Ostergren, said if solving the problem is really a priority the government should make sure the numbers don’t appear on its own Web sites rather than go after her client.

“The scale on which she makes these numbers available is minuscule compared to the scale on which the government makes them available,” Glenberg said.

Once we recognize the real purpose that these two diverging, and often oppositional principles of open government and privacy are meant to serve - such as the strengthening of our democracy and protection of liberty - the challenge then becomes how to balance the need for each, as both are fundamental principles that our nation was founded upon.

I found the following conclusion by Seton Hall Law School professor Daniel Solove to be especially salient in regards to this topic:

"It is my thesis that both transparency and privacy can be balanced through limitations on the access and use of personal information in public records. Of course, we must rethink what information belongs in public records. But we must also regulate the uses of our digital biographies. Government is not doing enough to protect against the uses of the information that it routinely pumps into the public domain."

And Privacy Rights Clearinghouse hits the nail on the head with this:

"Government agencies and courts must ask themselves what public policy objectives they are accomplishing by making records available on the Internet, particularly those containing personal information. Would there be a way to limit the amount of personally identifiable information posted on the Net without undermining the public policy purpose of making records accessible on the agency's website?"

Click here to read the rest of the article.

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