## Facts

- Betty J. Ostergren, a Virginia resident and privacy advocate, operated a website criticizing Virginia’s practice of placing land records online with unredacted Social Security numbers (SSNs).
- Virginia’s Personal Information Privacy Act (PIPA) made it unlawful to “intentionally communicate another individual’s social security number to the general public,” and a prior public-records exception had been removed.
- Virginia (through clerks and a state online system) made land records publicly available on the Internet, including documents containing unredacted SSNs.
- To demonstrate and criticize the scope of the problem, Ostergren posted copies of publicly available land-record documents on her site as they appeared, alongside advocacy and commentary; she did not publish standalone SSN lists.
- Virginia officials indicated Ostergren’s republication could be prosecuted under PIPA.
- Ostergren sought declaratory and injunctive relief, alleging that applying PIPA to her website violated the First Amendment.
- The district court held PIPA unconstitutional as applied to Ostergren’s conduct and entered a permanent injunction, but limited the protected republication to records involving specified categories of state officials.
- Virginia appealed (arguing constitutionality and overbreadth of the injunction), and Ostergren cross-appealed (arguing the injunction was too narrow).

## Issues

1. Whether the First Amendment permits Virginia to enforce its SSN-publication prohibition against an advocate who republishes unredacted SSNs contained in land records that the state itself made publicly available online, as part of political criticism of that practice.
2. Whether the district court’s permanent injunction was properly tailored to the First Amendment violation, given its limitation based on the status of the individuals whose SSNs appeared in the records.

## Decision

- The Fourth Circuit held that applying the SSN-publication prohibition to Ostergren’s republication of SSNs from state-posted land records, in the context of political advocacy, violated the First Amendment and was unconstitutional as applied.
- The court accepted that protecting SSN privacy and preventing identity theft are significant governmental interests, but found the enforcement approach not narrowly tailored where the Commonwealth itself had publicly disseminated the same information.
- The court rejected the argument that posting unredacted SSNs in this setting was categorically unprotected conduct, emphasizing the records were used to illustrate a public-policy critique.
- The court limited its ruling to an as-applied holding and did not invalidate the statute on its face.
- The court affirmed the availability of injunctive relief but reversed in part and remanded because the injunction was not properly tailored; its protection could not turn on whether the SSNs belonged to public officials versus private citizens.

## Legal Principles

- Publication of truthful information lawfully obtained from public government sources on a matter of public concern receives strong First Amendment protection, particularly where the government itself has made the information publicly available.
- A content-based restriction aimed at suppressing such publication must satisfy heightened scrutiny, including narrow tailoring to the asserted governmental interest.
- When the government has failed to control its own dissemination of sensitive information, punishing subsequent republication by a speaker—especially one criticizing the government’s disclosure practices—generally will not be a narrowly tailored method of protecting privacy.
- As-applied First Amendment relief must be matched to the constitutional violation; injunctions must be tailored to the rationale for protection and may not be limited by irrelevant distinctions (such as the public or private status of the individuals whose information appears) when the constitutional basis is the government’s own disclosure and the public-concern context.

## Conclusion

The Fourth Circuit held Virginia could not constitutionally apply its SSN-publication ban to an advocate who republished unredacted SSNs from land records the state had placed online to criticize that practice, and it remanded for the district court to retailor the injunction to reflect the First Amendment violation without limiting protection to records involving specified public officials.


Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010)