FOURTH ISSUES MAJOR PRIVACY RULING

 

[Posted July 26, 2010]  The Fourth Circuit today hands down a significant decision in a civil suit challenging a Virginia statute that’s designed to limit the republication of personal information.  The case is Ostergren v. Cuccinelli.

 

Back when I was a baby lawyer, I performed hundreds of title examinations on property, preparatory to real estate closings.  Some of them (usually the suburban rectangles) were uncomplicated, while others were more complex.  In doing that, I spent hundreds, maybe thousands, of hours in local record rooms, examining deeds and mortgages (something today’s lawyers virtually never do).  Eventually, the mortgage industry started putting borrowers’ Social Security Numbers on the deeds of trust, presumably to assist the lender in matching up the deeds with the correct borrowers (especially those with common surnames).

 

A lady in Hanover County with the uncommon surname of Ostergren decided that she didn’t like that practice, especially when court clerks started posting land records on the Internet in the 90’s.  She’s a privacy-protection advocate (something I heartily endorse), and evidently her initial efforts to secure an end to the practice met with limited success; the legislature enacted laws that stopped the process of posting private materials online, but did nothing about the several years’ worth of such documents that were already there.  It later permitted, but did not require, court clerks to redact SSN’s, but lacking a funding source, such an effort was sporadic.

 

Ostergren accordingly decided she needed a more effective tool to get her point across.  The tool she selected was to start her own website, on which she posted documents containing elected officials’ own deeds, complete with their SSN’s.  This was a form of taking the war to the enemy’s turf, a tried and true method ever since the days of Sun Tzu.

 

Instead of regarding this tactic as helpful, the Commonwealth set out to outlaw it.  It eliminated a statutory exemption for disclosing publicly-available SSN’s, and indicated that it would prosecute Ostergren if she continued her efforts.  Instead of backing off, Ostergren headed to federal court, seeking a declaration that the Virginia statute was unconstitutional as applied to her.

 

The district court ruled in favor of Ostergren, finding that the statute was indeed unconstitutional since it restricted her efforts to lobby for political change.  It permanently enjoined enforcement of the statute against Ostergren to the extent that it prohibited her from posting documents containing SSN’s of Virginia legislators, executive officers, or court clerks.  Virginia appealed, contending that it shouldn’t have lost; Ostergren cross-appealed, complaining that her victory shouldn’t have been so narrow.  She sought the right to post all records, of any person, until the right person – presumably one with significant political connections – squealed in pain.

 

The Fourth Circuit today affirms in part, reverses in part, and remands the case for further proceedings.  While an outcome like that may sound like something of a tie, in reality Ostergren gets a sweeping victory today.  The Fourth Circuit finds the Virginia statute to be unconstitutional as applied to Ostergren’s website, since it chills a form of political speech.  Ostergren had the right to “criticize the government without fear,” just as we all do, and the court finds that the Virginia statute was not narrowly tailored to address a compelling state interest.  And the fact that she used public records bolsters the contention that she had the right to engage in this form of political advocacy – albeit in a manner that some observers might find problematic.  Problematic or not, it works, and you can’t curtail a particular kind of speech simply because it’s especially effective.

 

On the cross-appeal, the court finds that the district court’s decision to limit its injunction to the publication of Virginia public officials was too narrow.  While it would make sense for this sort of effort to initially target the public officials themselves, that limitation isn’t essential to the remedy.  Indeed, elsewhere (in an Arkansas county) Ostergren had no success in her efforts to induce change when she limited her publications to the affected public officials; only when she started “exposing” prominent private citizens did the government decide to act.  The court accordingly remands for the district court to refine (and presumably expand) its injunction order to provide Ostergren with an even greater victory.

 

Judge Davis files a short concurrence in which he essentially chides the Commonwealth for seeking to punish someone for republishing material that the Commonwealth itself originally published.  He concludes, memorably, “when a state seeks to punish a speaker for republishing state-published information, the state should be expected, in the words of a contemporary colloquialism, not simply to talk the talk, but to walk the walk, as well.”

 

While it’s ironic that Ostergren was fighting here for the right to do the very thing that she thought was so very improper, you must admit that her tactics worked.  At first blush, you might find it a bit disquieting that someone just won the right to post private, sensitive information on a publicly available website.  But given her agenda and the apparent sincerity of her beliefs, the whole matter takes on a different appearance.