Virginia v. Ostergren [1]

Betty Ostergren sued the Attorney General of Virginia, Robert F. McDonnell, in his official capacity to challenge Virginia's Personal Information Privacy Act (PIPA), Va. Code Ann. § 591.443.2, as a violation of the First Amendment. Ostergren is a self-proclaimed advocate of privacy rights and has posted on her website, The Virginia Watchdog [2], examples of public documents containing social security numbers (SSNs) "to alert members of the public that their own personal information may be online somewhere."  (Compl. [3] ¶ 7.)  A recent amendment to PIPA made it unlawful to "[i]ntentionally communicate an individual's social security number to the general public," Compl. ¶ 13, even if those SSNs are included in public documents.

After Ostergren's lawsuit was filed, counsel for the Attorney General of Virginia agreed that, if Ostergren maintained her website with the posted records, she would be violating the law and be subject to civil sanctions, including fines, investigative demands, and injunctions.  Ostergren sought a preliminary and permanent injunction prohibiting the enforcement of Virginia's PIPA as it applies to public records, and a declaration that the statute is unconstitutional as applied to public records.  (Compl. Requests for Relief ¶ A-B.)

In an August 22, 2008 opinion, a federal court in Virginia declared the Virginia PIPA unconstitutional as applied to Ostergren's website, but sought further briefing on the "propriety and scope of an injunction other than with respect to Ostegren's [sic] website as it exists."  (Op. [4] 33.)  In a further order on June 2, 2009, the judge permanently enjoined the enforcement of the Virginia PIPA against "any iteration of [Ostergren's] website, now or in the future, that simply republishes publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as [sic] an effort to reform Virginia law and practice respecting publication of SSNs online."  (Order [5] 1.)

On June 24, 2009, McDonnell appealed the decision to the Fourth Circuit.  Ostergren filed a cross-appeal on July 8, 2009.

On July 26, 2010, the  Fourth Circuit Court of Appeals affirmed in part and reversed in part. The court held that district court's grant of injunctive relief was an abuse of discretion. The court reversed the district court's decision and remanded the case for further proceedings.(Appeals Decision [6]45)