Can't Protect Itself
American Civil Liberties Union of Virginia, News Release
March 6, 2008
ACLU Calls for Veto or Amendment to Bill Prohibiting Dissemination of Social Security Numbers
SB 133/HB 633 Fails to Address Problem of Social Security Numbers Appearing in Online Public Records and Infringes on Free Speech
Richmond, VA— The ACLU of Virginia has asked Governor Tim Kaine to veto or amend a bill that prohibits individuals from disseminating Social Security Numbers legally obtained from government websites.
If signed into law, the ACLU is prepared to challenge the measure in court.
“The ACLU is a staunch supporter of laws that prevent the government from allowing Social Security Numbers to appear on publicly accessible websites,” said ACLU of Virginia Executive Director Kent Willis, “but the government can’t put the numbers online and then turn around prevent the public from using those numbers.”
“This is a grossly misplaced bill that attempts to mask the fact that Virginia’s lawmakers have failed to prevent Social Security Numbers from being placed online in the first place,” added Willis. “If Social Security Numbers were removed from public records when they are placed online, there would be no need for this bill.”
Privacy rights advocates point out that there are thousands of Social Security Numbers available in online government records in Virginia, especially in real estate transactions. Some of the advocates have attempted to embarrass legislators into taking action by obtaining Social Security Numbers from government websites and publishing them on their own websites.
SB 133 (Houck) and HB 633 (May) have passed both the House of Delegates and the Senate and are being conveyed to the Governor for his signature. The ACLU is recommending that the Governor either veto the legislation or amend it so that the prohibition on dissemination of Social Security Numbers applies only to commercial speech. This would allow privacy advocates to continue to pressure legislators by publishing Social Security Numbers found online, but might deter some data mining.
However, even if amended the law is not likely to affect those who obtain Social Security Numbers for fraudulent purposes. Only a prohibition against the numbers appearing online in the first place will accomplish that.
The ACLU is also asking for a one-year sunset on the amended version of the bill because it may unconstitutionally restrict commercial speech.
A copy of the ACLU’s letter to the Governor follows.
Contacts: Kent Willis, (office) 804/644-8022
March 6, 2008
The Honorable Tim Kaine
Governor of Virginia
Patrick Henry Building , 3rd Floor
1111 East Broad Street
Richmond , Virginia 23219
RE: Request to Amend or Veto SB 133/HB 633
Dear Governor Kaine,
I am writing to request that you veto or amend SB 133/HB 633, which prohibits the dissemination of Social Security Numbers obtained from public records posted online. The bill not only fails to address the problem of Social Security Numbers appearing on publicly accessible government websites, but it violates the free speech rights of individuals who obtain and use these numbers. The ACLU of Virginia believes that SB 133/HB 633 is unconstitutional as written, and is prepared to challenge its constitutionality in court.
SB 133/HB 633 Fails to Address Real Problem of Online Social Security Numbers
As an advocate for privacy rights, the ACLU of Virginia has consistently supported legislative measures restricting government publication of Social Security Numbers, including efforts to redact Social Security Numbers from public records before they are placed online for public access.
Thousands of Social Security Numbers are currently available in Virginia on publicly accessible government websites, thereby significantly compromising the privacy rights of Virginia citizens and increasing opportunities for identity theft. In 2007, the General Assembly passed a hollow bill in which it required redaction of Social Security Numbers from online records, but only if funding were appropriated to accomplish the task. No such funding has been made available, so the law, so the real problem remains unsolved.
SB 133/ HB 633 Violates Free Speech Rights
SB 133/HB 633 is not only an attempt by the General Assembly to mask its failure to require removal of Social Security Numbers from online records, but it infringes on the free speech rights of individuals who lawfully obtain Social Security Numbers and then use them for purposes clearly protected by the First Amendment.
In The Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court held that a newspaper could not be sued for publishing the name of a rape victim it had obtained from a publicly released police report. The Court noted that “ punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act…[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.”
In a case more directly on point, a district court struck down a statute that prohibited the publication of the addresses, telephone numbers, and Social Security Numbers of law enforcement officers. See Sheehan v. Gregoire, 272 F.Supp.2d 1135 (W.D. Wash. 2003). The plaintiff in Sheehan had obtained such information from public records and posted it on a website advocating police accountability. Relying on Florida Star, the court held that the statute was unconstitutionally overbroad.
Amendments to SB 133/HB 633
SB 133/HB 633 could be amended in ways that would improve the bill, although it still may not pass constitutional muster. First, it could allow the dissemination of Social Security Numbers obtained from public records when used for non-commercial purposes. This would permit privacy advocates and others to publish Social Security Numbers as a demonstration of how easily such information is obtained (and how legislators have failed to address the problem) but protect Social Security Numbers from data mining by commercial enterprises. (It is doubtful that any action, other than redaction, will deter individuals who are intent on using Social Security Numbers for criminal purposes, such as identity theft.)
Second, because free speech rights of commercial enterprises may still be implicated, even with the aforementioned amendment in place, the ACLU recommends that the new law include an automatic sunset one year from enactment. This will force lawmakers to continue to annually readdress the law until funding is made available for redaction of Social Security Numbers from public records.
Legal Challenge to Constitutionality of SB 133/HB 633
If SB133/Hb 633 is not appropriately amended or vetoed, the ACLU of Virginia is prepared to challenge its constitutionality in federal court.
I thank you for your attention. If you would like to discuss this, please feel free to contact me at 804/644-8022 or acluva@acluva.org.
Sincerely,
Kent Willis
Executive Director
cc: Larry Roberts
Mark Rubin