In Ostergren v. McDonnell, 2008 WL 3895593 (E.D.Va. 2008), Betty Ostergren, a personal privacy advocate in Virginia, and author of website The Virginia Watchdog, filed suit against Virginia Attorney General Robert F. McDonnell, seeking declaratory and injunctive relief against Va. Code 59.1-433.2 (2008), as applied. Ms. Ostergren sought to maintain her website which publishes Virginia court records that list the social security numbers of Virginia judges, court clerks, senators, and even former Secretary of State Colin Powell. Virginia law establishes a "secure remote access" system which allows indivuduals, for a nominal fee, to access land records of given localities. The land records accessible to the public have been reposted on Ms. Ostergren's website. For shock value, Ms. Ostergren posts primarily the records of judges, legislators and court clerks.
The central issue in Ms. Ostergren’s action was a provision of Virginia’s Information Privacy Act (“PIPA”), that provides, inter alia, “a person shall not ….. [i]ntentionally communicate another individual’s social security number to the general public.” This specific provision took effect on July 1, 2008. Before then, the statute contained an exception for “records required by law to be open to the public.” Va.Code § 59.1-443.2(D) (2007). The 2007 exception was removed to create the current version of the statute which Ms. Ostergreen asserted was unconstitutional as applied to her.
Ms. Ostergren argued that under the First and Fourteenth Amendments of the U.S. Constitution, she could not be punished for truthful publication of records that Virginia itself makes public. Ms. Ostergren relied on a line of Supreme Court precedent, including Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) and The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443, (1989).
Attorney General McDonnell argued that the newly enacted Virginia statute is constitutional as a generally applicable law intended to prevent the dissemination of highly private social security numbers, that there is no public interest in specific social security numbers listed on the website, and that Ostergren does not need to post such numbers to make her point.
The court ruled that Virginia Code 59.1-443.2 is unconstitutional as applied to Ostergren’s website as it presently exists; the Court granted Ms. Ostergren declaratory and injunctive relief. Social security numbers of Mr. Powell and those of Virginia state senators congressman, judges, and court clerks remain directly accessible on Ms. Ostergren’s website.
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