Ostergren v. McDonnell: District Court Rules Virginia Law Protecting Social Security Numbers Unconstitutional As Applied to Watchdog Website

Digest Commentary First Amendment Privacy

Ostergren v. McDonnell

E.D. Va. No. 3:08cv362
Slip Opinion (hosted by the ACLU)

On August 22, 2008, Judge Robert E. Payne of the U.S. District Court for the Eastern District of Virginia found § 59.1-443.2 of the Virginia Code to violate the First Amendment as applied to Betty J. Ostergren’s website The Virginia Watchdog. The court granted plaintiff Ostergren limited injunctive relief against the State of Virginia as represented by its Attorney General, Robert F. McDonnell.

Ostergren is a privacy advocate who has lobbied the General Assembly of Virginia to stop publicly posting land records containing Social Security Numbers (“SSNs”) online without redacting the SSNs. On her own site, she has posted a number of these land records, including those of former Secretary of State Colin Powell, former House Majority Leader Tom Delay, and members of the Virginia legislature and judiciary. She has also posted examples of publicly available records from other states containing SSNs.

Section 59.1-443.2 of the Virginia Code is a provision of Virginia’s Personal Information Privacy Act (“PIPA”). In part it provides that “a personal shall not . . . [i]ntentionally communicate another individual’s social security number to the general public.” Until July 1, 2008, PIPA excepted “records required by law to be open to the public.”

Ostergren brought action before enforcement. Both parties agreed that if Ostergren maintained The Virginia Watchdog with the posted records, she would be violating PIPA and subject to sanctions. Ostergren argued that the state, having made the records publicly available on the Internet via secure remote access, could not prohibit her from posting the records on her website. The Attorney General argued that Ostergren lacked standing, that her cause of action was not ripe, and that the statute satisfied all constitutional requirements given the highly private nature of SSNs and the lack of a public interest in specific SSNs.

The court found The Virginia Watchdog to be analytically equivalent to a newspaper in undertaking the role of government watchdog, and ruled that the First Amendment protects this role. It declined the state’s argument that protecting SSNs is an interest of the highest order, since Virginia had made them publicly available before Ostergren did. However, because of the public interest issues presented by identity theft, Payne limited the injunction to application of the statute to the website as it currently exists. He requested briefs from both parties before the injunction could be extended to cover any further changes to the website.

The ACLU of Virginia represented Ostergren. In a press release, the group’s Executive Director, Kent Willis, said of the decision, “No one wants to protect Social Security Numbers more than the ACLU and B.J. Ostergren, but the government can’t carelessly put Social Security Numbers online and then tell the public what they can and cannot do with those numbers. That’s censorship, and the court was quick to recognize that.”