FOURTH ISSUES MAJOR PRIVACY RULING
[Posted July 26, 2010] The Fourth Circuit today hands down a significant decision in a civil suit challenging a
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 todays 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
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 SSNs. This was a form of taking the war to the enemys 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 SSNs, 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
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 SSNs of
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
On the cross-appeal, the court finds that the district courts decision to limit its injunction to the publication of
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 its 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.