April 8, 2008

The Governor of Virginia recently signed into law an amendment restricting the publication of its existing public records. Readers may recall my April 1st fillip took some freedom with the truth. But I did not make this one up. It is for all to see in the public records of Virginia (1).

Illiterate laws ruin the rule of the law. As defined by the dictionary, "to publish" is "to make generally known, [...] to place before the public, [to] disseminate" (2). Information one wants to keep from public knowledge must be kept secret and, if disclosed to another party, protected by a confidentiality agreement. Professional drafted, such agreements state themselves to be void whenever, through no fault of the party held to confidentiality, the private information concerned becomes public knowledge. By nature the same information cannot be both public and private.

Yet the Virginia Personal Information Privacy Act now "prohibits the dissemination of another person's social security number [(SSN)] regardless of whether such number is obtained from a public or a private record" (3). Needless to say Virginia hastens to grant itself immunity were some humorless fellow to hint that its own public records turn it into the first and most general violator of its own prohibition. It remains that Virginia wants to hold every citizen to a confidentiality agreement over certain public knowledge. What are public office holders smoking in Virginia?

Faithful readers will not be surprised. This is a pathological form of what I called the Lady Godiva reflex. A treasure trove of unencrypted confidential information falls from the back of a truck, private medical data in the latest breach (4). Quite often the physical medium holding the confidential records is recovered intact and some official wants us to believe that in the meantime nobody ever looked at the naked data. In this new twist, the naked data is officially paraded through town but every citizen must by law keep one's eyes averted.

The general public is known to be lazy. The same reason lies behind Virginia's Lady Godiva law. Funding a thorough clean up of its public records and lobbying the Federal and other State Governments to do likewise would make the amendment redundant by suppressing all public sources. But this would be onerous. Even more efficient would be to prohibit credit report bureaus from making use of an individual's SSN and from releasing his or her profile without each time verifying his or her prior express consent. This would undercut the very purpose of ID theft. But who would be brave enough to shake the power of pronaocracy?

Passing bully laws is much easier. If it further shreds any distinction between public and private spheres, so what? Isn't it what the Information Age is all about? Besides Virginia office holders must have felt personally threatened by Mrs Betty Ostergren, a privacy activist (5), who selectively culls and displays their own SSN's from public sources to highlight the plight of the public. By trying to shut down the activists rather than purge public records, they only put their privacy ahead of their fellow citizens'. Who can blame them? Aren't the ones who make the laws above the law?

When a secret is known to everyone but nobody dares talk about it, the French call it "un secret de Polichinelle" (6), literally Punch's secret. Surely Virginia must have a puppet government.

Philippe Coueignoux

• (1) Personal Information Privacy Act, Virginia General Assembly bill SB133, introduced 1/3/2008
• (2) see definition of "to publish" in Webster's New Collegiate Dictionary, G. & C. Merriam Co., 1977
• (3) An Act to Amend and Reenact [section] 59.1-443.2 of the Code of Virginia, Acts of Assembly chapter text (chap0562), 03/17/2008
• (4) see "Safeguarding Private Medical Data", editorial column (New-York Times) - March 26, 2008, quoted in last fillip
• (5) see The Virginia Watchdog
• (6) see Secret de Polichinelle in the French Wikipedia. Its 04/04/08 version illustrates the concept with the "Emperor's New Clothes". "Do look, don't tell" may indeed be a closer interpretation of the statute. I suggest to label the Virginia public records pornographic material, to keep little children away just in case.