Ostergren v. McDonnellOstergren v. McDonnell
- Reporters:
- , , , ,
- Before:
- Robert E. Payne
This matter is before the Court on Plaintiff Betty J. Ostergren‘s BRIEF ON INJUNCTIVE RELIEF (Docket Number 26) filed pursuant to the Court‘s Order dated August 22, 2008. Ostergren seeks to have the injunction previously entered by the Court, which enjoined enforcement of certain provisions of Virginia‘s Personal Information Privacy Act against her website as it then-existed, expanded to enjoin enforcement against her website at any time. The Defendant, Robert F. McDonnell, has filed a responsive BRIEF ON INJUNCTIVE RELIEF (Docket Number 27), which seeks to maintain the scope of the Court‘s remedial injunction. For the reasons set forth below, the Court‘s remedial injunction
I. BACKGROUND
For several years, clerks of court in Virginia, acting under authority conferred by Virginia‘s legislature, have made available on the Internet (“online“) land records that are maintained in the office of the clerks of court in each city and county in Virginia. Of course, the clerks of court, by law, are required to maintain publicly available real (and some personal) property records in the courthouse and to have them available for public inspection. The land records contain many documents by which land is conveyed or encumbered, such as deeds, deeds of trust, divorce decrees, and documents which evidence the financing and ownership of land. Counsel for the Attorney-General has advised, and Ostergren does not dispute, that the impetus for placing these land records online came principally from the real estate industry because to do so facilitated real estate transactions of all sorts. Years ago, Virginia‘s General Assembly blessed this process and authorized the clerks to charge fees for online access to public records.
For some time, dating back at least to the 1980‘s, some lawyers have included, for reasons not of record, Social
Until 2007, Virginia law did not require the clerks of court to redact SSNs from land records before making them available online. Even then, the redaction requirement was conditioned on the General Assembly making funding available to the various clerks for the redaction process. The General Assembly has not provided adequate funding to accomplish redaction for all jurisdictions.
Virginia law establishes a so-called “secure remote access” system which allows individuals, for a nominal fee, to obtain online access to the land records of a given locality. The term “secure remote access” system is something of a misnomer, because the system is not secure. Only the payment of a nominal registration fee stands between any person with an internet connection and access to the information contained on the system. (Stip. ¶ 6.) Ostergren paid the fee and secured the online land records that are posted on her website. (Id.)
Ostergren, who is a resident of Hanover County, Virginia, advocates for privacy rights in Virginia and nationwide. (Stip.
Ostergren‘s stated reason for doing so is to demonstrate graphically to members of the public that their own personal information may be available online. (Id. ¶ 5.) As “an object lesson” and for “shock value,” Ostergren decided to post mainly the SSNs reflected in the land records of “legislators and clerks [of court] because, in her view, they are principally responsible for the online availability of millions of records containing SSNs.” (Id. ¶ 12). Her website also includes public records obtained from government websites in other states and from sources other than Virginia‘s secure remote access system. (Id.; Hr‘g Tr. at 22-28.) Ostergren has been successful in effecting change in record-keeping and SSN protection policies through her advocacy. (Hr‘g Tr. at 73.)
Ostergren argues that her activities — posting copies of actual public records with SSNs clearly identified — fell within the scope of the old exception, but would now be subject to a range of civil sanctions, including fines, investigative demands, and injunctions.
On August 22, 2008, the Court held that
Thereafter, Ostergren filed a brief requesting that the permanent remedial injunction prohibit enforcement of
The parties also have filed a second stipulation of facts primarily relating to the progress made by the Virginia court clerks in redacting and removing SSNs from the records available through the secured remote access system. (Second Stip. at ¶¶ 1-5.) The second stipulation also indicates that many jurisdictions outside of Virginia continue to post available through records posted on public websites public records that contain SSNs. Additional evidence concerning Virginia‘s treatment of SSNs was adduced at the February 24, 2009 hearing on the issue of injunctive relief. That evidence, and its import, will be further discussed in connection with the legal issues to which it is relevant.
II. DISCUSSION
A. Appropriateness of a Permanent Injunction
1. General Principles
“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803). It having been determined that a violation of the First Amendment exists, the issue now presented
Requests for injunctive relief in the context of Constitutional violations are generally subject to the same standards for equitable relief as non-Constitutional harms. See, e.g., Phelps-Roper v. Nixon 545 F.3d 685, 694 (8th Cir. 2008); Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006); Ayres v. City of Chicago, 125 F.3d 1010, 1014-15 (7th Cir. 1997); American Federation of Teachers - West Virginia, AFL-CIO v. Kanawha County Bd. of Educ., 592 F.Supp.2d 883, 891-92 (S.D.W.Va. 2009) (Goodwin, C.J.). The Supreme Court has recently described the burden on a plaintiff seeking a permanent injunction as follows:
a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also McManus v. District of Columbia, 530 F.Supp.2d 46, 81 (D.D.C. 2007) (noting applicability of eBay standard to Constitutional claims). The applicable standard having been established, the Court will now turn to the analysis of Ostergren‘s claim under the eBay framework.
2. Irreparable Injury
The first factor that must be demonstrated by the Plaintiff to establish the propriety of a permanent injunction is the presence of irreparable injury. See eBay, 547 U.S. at 391. The Supreme Court previously has held that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). Indeed, in a somewhat similar case, the Fourth Circuit overturned a district court‘s denial of a preliminary injunction when the injury suffered by the plaintiff was the potential loss of a First Amendment right. Newsom ex rel. Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (applying Elrod).
The application of this standard to Ostergren‘s case is clear. The Court already has held that
3. Inadequacy of Remedies at Law
The inadequacy of monetary damages as compensation for Ostegeren‘s loss of her First Amendment rights is similarly clear. Indeed, in cases where the damage is truly irreparable, monetary damages will seldom be an adequate remedy. See Safeway Inc. v. CESC Plaza Ltd. Partnership, 261 F.Supp.2d 439, 469 (E.D.Va. 2003) (“As a result, inadequacy of damages and irreparability of harm are often treated interchangeably in the permanent injunction analysis.“) Furthermore, monetary damages are typically regarded as inadequate where the injury is continuous or repeated. See Teaching Co. Ltd. Partnership v. Unapix Entertainment, Inc., 87 F.Supp.2d 567, 587 (E.D.Va. 2000); see also Disney Enterprises, Inc. v. Delane, 446 F.Supp.2d 402, 408 (D.Md. 2006) (permanent injunction is appropriate when future violations are a “continuing threat“). Finally, damages are rendered inadequate as a remedy when actual damages would be difficult to ascertain. See Safeway, 261 F.Supp.2d at 469.
All of these factors weigh in favor of Ostergren. The threat to Ostergren‘s constitutional rights would be a
4. Balance of Harms
The third factor to be considered in deciding on the propriety of a permanent injunction is whether “considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted.” See eBay, 547 U.S. at 391. The Fourth Circuit has explained that a government “is in no way harmed” by the issuance of an injunction prohibiting it from enforcing an unconstitutional law. Newsom, 354 F.3d at 261. Indeed, if anything, in that circumstance the state‘s system would be improved by issuance of an injunction. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 520-21 (4th Cir. 2002). Therefore, any harm done to the State caused by enjoining
Balanced against this minimal or nonexistent harm is the significant injury done to Ostergren by allowing enforcement of
5. Public Interest
The final factor that must be considered in determining the propriety of a permanent injunction is whether such an injunction would be in the public interest. See eBay, 547 U.S. at 391. The Fourth Circuit is unequivocal that “upholding constitutional rights serves the public interest.” Newsom, 354 F.3d at 261; see also Carandola, 303 F.3d at 521 (“upholding constitutional rights surely serves the public interest.“). It is true that the public certainly has an interest in being subject to the reduced likelihood of falling prey to the scourge of identity theft. However, “the public interest is better
B. Scope of the Injunction
1. Standard of Review
Having determined that a permanent injunction is an appropriate remedy, it is necessary now to decide the appropriate scope of that injunction. As a general proposition, the scope of an injunction remedying a constitutional harm should be limited to “enjoin only the unconstitutional applications of a statute while leaving other applications in force.” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 329 (2006) (citing United States v. Raines, 362 U.S. 17, 20-22 (1960)). Accordingly, partial, not total, invalidation of a statute is the more usual scope of injunctive relief upon a finding of unconstitutionality. See id.
However, courts also must be careful not to intrude on the legislative domain by rewriting the statute. See id. Indeed,
2. Scope of the Right
The first step in determining the appropriate scope of the remedy in Ostergren‘s case is to determine the exact scope of the constitutional right placed at hazard by the statute. See id. at 329. Thus, for example, the Supreme Court has enjoined enforcement of a statute against picketers on public sidewalks in front of the Supreme Court, but not against those on Supreme Court property itself, because the violation of a constitutional right was occasioned only in the former situation. See id. at 329-330 (citing United States v. Grace, 461 U.S. 171, 180-83 (1983)). Similarly, in Ayotte, the Court enjoined enforcement of only those particular applications of the statute at issue that violated constitutional principles. See id. at 330 (enjoining
Court‘s applying Ayotte have formulated similarly-limited remedies. For example, the Third Circuit, confronted with a Title VII employment discrimination claim against a religious institution, enjoined application of the discrimination provisions of Title VII against religious institutions only insofar as the complained-of employment decisions were “as to who will perform spiritual functions.” Petruska v. Gannon University, 462 F.3d 294, 305 n.8 (3d. Cir. 2006). Thus, the tailored remedy of the “ministerial exception” was sufficient to eliminate the First Amendment problems posed by application of Title VII in the context of those particular employment decisions. See id. Similarly, courts have used the rationale in Ayotte to strike the offending portions of a statute, while leaving others intact, and to issue declaratory judgments defining the exact scope of the class of individuals against whom a statute may not be enforced. See Jeffrey O. v. City of Boca Raton, 511 F.Supp.2d 1339, 1359 (S.D.Fla. 2007) (striking one section of a state ordinance that violated the Fair Housing Act, while leaving another section of the ordinance intact); Doe v. Prosecutor, Marion County, Ind., 566 F.Supp.2d 862, 877 (S.D.Ind. 2008) (issuing declaratory judgment based on Fourth Amendment violations caused by state statute).
The considerations concerning the scope of the remedy advanced in Ayotte have also been applied in the First Amendment context. See Maldonado v. Kempton, 422 F.Supp.2d 1169, 1177 (N.D.Cal. 2006). In Maldonado, the district court permanently enjoined the enforcement of a state statute that prohibited non-commercial billboards while permitting commercial advertising. See id. This was a clear violation of established First Amendment law, which requires that commercial and non-commercial speech be treated equally with respect to billboards. See id. Therefore, the appropriate remedy in that case was to “enjoin the State from enforcing [the statute] to prohibit non-commercial speech wherever the Act permits commercial speech.” Id. at 1178.
The issue that now presents itself, therefore, is the scope of the First Amendment right at issue here. The previous decision issued in this case held that
If (1) a newspaper (2) lawfully obtains truthful information (3) about a matter of public significance then state officials may not constitutionally punish publication of the information, (4) absent a need to further a state interest of the highest order.
491 U.S. at 534 (enumeration added). Even if a publication does not meet this test, the publication may only be punished if the punishment is narrowly tailored to serve the state interest. See id. at 541; see also Bowley v. City of Uniontown Police Dept., 404 F.3d 783, 786-87 (3d Cir. 2005). As discussed in the opinion on the merits, in order for this right to apply, all four of these elements must be present. (See Mem. Op. at 23-31.)
Therefore, in order to determine whether enforcement of
Ostergren testified the SSNs which appear on her website are imbedded in the public records which she has obtained online. She intends to continue to publish records thusly obtained. (Hr‘g Tr. at 24-33.) The parties have stipulated that, even after the redaction efforts have been completed, there will still be some publicly available documents on the secured access network and elsewhere with unredacted SSNs, because the redaction process has a one to five percent failure rate. (See Second Stip. at ¶¶ 4, 5., 6) It is, by definition, legal to obtain publicly available information. See Florida Star, 491 U.S. at 534. Therefore, the second element of the Florida Star analysis will remain unchanged, as well, because Ostergren will still be publishing lawfully-obtained, truthful information. See id.
The record indicates, and the parties tacitly agree, that the element of the most analytical moment is whether the State has indicated sufficiently that, going forward, it intends to treat the prevention of SSN dissemination as “a state interest
Whether the State has an interest of the highest order is answered by examining objectively the means by which the State treats the information in question. See id. at 537. The relevant case law is clear that, if the State wishes to claim that the confidentiality of a certain piece of information is a State interest of the highest order, then the State should not make that information publicly available. See id. at 534-5. As the Supreme Court explained in Florida Star
Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts . . . [W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.
Id. Subsequent cases comport with this assessment. See Bunyan v. City of Davis Police Dept., 2007 WL 1831139, *3-4 (E.D.Cal.
The basic outline of the State’s plan to maintain the confidentiality of SSNs is as follows: all clerks of court are required to have redacted the SSNs from their records by the end of 2010, if funding for the project is allocated by the General Assembly (Hr’g Tr. at 79); the redaction process used on both preexisting and newly-published records is being completed either by the clerks themselves or through contract work with outside companies (Second Stip. at ¶ 1); the redaction process has an average failure rate of one-to-five percent (Id. at ¶ 5); and, the General Assembly has appropriated approximately $7 million to fund the redaction, but this amount is insufficient to fully fund the project (Hr’g Tr. at 79).
The redaction process started in 2007 will not be complete for all jurisdictions until, optimistically, July, 2010. (See id. at ¶ 2.) Approximately 105 of 120 jurisdictions have completed the redaction process, but among the 15 jurisdictions that have not completed the process are some of the State’s most populous areas. (Id. at ¶¶ 1-2.) The more-likely completion
Furthermore, the parties have stipulated that the redaction process will not be successful at removing all SSNs from the secured access network. (Second Stip. at ¶ 5.) Thus, the redaction process, even after completion, will leave over 60,000 SSNs available for public view on the network. (See Hr’g Tr. at 48-49.)
The State explains that, after the redaction process is complete, it will handle the one to five percent failure rate by
A subsidiary issue that has not been discussed to this point is, even if a State interest of the highest order is assumed to exist, whether the statute codifying that interest has been narrowly tailored to further that interest. See Florida Star, 491 U.S. at 542. The Third Circuit has held that, “when the government has stewardship over confidential information, not releasing the information to the media in the first place will more narrowly serve the interest of preserving confidentiality than will punishing the publication of the information once inappropriately released.” Bowley v. City of Uniontown Police Dept., 404 F.3d 783, 788 (3d Cir. 2005). This reasoning applies with equal force here: the most narrowly tailored solution to the problem of dissemination of SSNs over which the State has custody is not to release those SSNs into the public domain. Thus, as applied to Ostergren’s website as
3. Legislative Function and Intent
The last two factors set forth by the Supreme Court in Ayotte, judicial restraint in rewriting statutes and preservation of legislative intent, are not particularly relevant to Ostergren’s case. See 546 U.S. at 329-30. The scope of any injunction will reach only Ostergren and her website, and no violence has been done to the statutory language, save for the addition of implied terms limiting application of the statute only in constitutionally-acceptable circumstances. (See Mem. Op. at 33.) Therefore, this case presents no usurpation of the legislative function. See Ayotte, 546 U.S. at 329.
The primary consideration animating the third factor, “[w]ould the legislature have preferred what is left of its statute to no statute at all?” is likewise not a contested issue. See Ayotte, 546 U.S. at 300. This case seems quite similar to that in Petruska, in which the Third Circuit noted that “Congress would prefer a tailored exception to Title VII
4. Assessment of the Factors Governing the Scope of the Injunction
Without doubt,
Indeed, it is not overstating the matter to observe that the lives of victims of identity theft are severely altered for years after the theft occurs. See Chris Jay Hoofnagle, Identity Theft: Making the Known Unknowns Known, 21 Harv. J. L. & Tech. 97, 98-99 (2007). It is beyond question that access to a person’s SSN provides an identity thief with the key element to effectuate particularly ruinous types of identity theft. See id. at 100-101. “An identity thief [armed with the victim’s SSN] can empty bank accounts, obtain credit cards, secure loans, open lines of credit, connect telephone services, and enroll in government benefits in a victim’s name.” Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. Cal. L. Rev. 241, 253 (2007). The average victim of identity theft suffers a loss of approximately $17,000, and will spend more than $1,000 and 600 hours of personal time dealing with the consequences of his victimization. See id. at 254. Identity thieves are only rarely
Furthermore, identity theft is no longer an isolated problem: the loss caused by identity theft total over $50 billion per year; and, identity theft has been described as the fastest-growing crime in the United States. Jonathan J. Darrow & Stephen D. Lichtenstein, “Do You Really Need My Social Security Number?” Data Collection Practices in the Digital Age, 10 N.C. J. L. & Tech. 1, 8-9 (2008). Thus, in concept,
When land records were first put online in Virginia, the prevalence of identity theft was not as great as it is now and its consequences were not as far reaching. However, the increased prevalence and the ruinous consequences of identity theft have been well publicized for several years and the actions of the General Assembly reveal that it is aware of the problem. In that time, however, the General Assembly has not
The enactment of
To implement those alternatives by judicial order would constitute impermissible legislation by the judiciary. See Ayotte, 546 U.S. at 329 (“[M]indful that our constitutional mandate and institutional competence are limited, [Courts should] restrain [themselves] from rewriting state law to conform it to constitutional requirements even as we strive to salvage it.”) (internal quotations omitted). Furthermore, given
It is, however, conceptually possible to frame a remedial injunction that does not legislate, but that does accommodate the First Amendment rights of Ostergren and, at the same time, affords some protection to the innocent members of the public who have no control of the release of the public records containing their SSNs. Given the case-by-case approach to issues of this sort counseled by the Supreme Court in Cox, Daily Mail and Florida Star, that balance might be best effectuated by enjoining enforcement of the statute to allow Ostergren to use the SSN-containing public records of legislators, executives, and court clerks, which will allow her to pursue what she considers to be effective lobbying activity while minimizing the exposure of members of the public who have no way to prohibit the dissemination of the records containing their SSNs. Indeed, such an injunction largely only ratifies Ostergren’s current course of conduct and, as she herself stated, would not have a seriously deleterious effect on her public advocacy. (Hr’g Tr. at 36-37.)
That course does afford less generous protection to Ostergren’s rights under the First Amendment than was made available to a publishing entity under Cox, Daily Mail or
Under all the circumstances, the public interests in free speech and public security are best balanced by entry of a narrowly tailored injunction that allows Ostergren to publish the SSN-containing records of State legislators, State Executive Officers and Clerks of Court, those who actually can act to correct the problem, but that forecloses wholesale publication of the SSN-containing records of innocent members of the public who did nothing to cause the problem and who can do nothing to
III. CONCLUSION
For the foregoing reasons, a permanent injunction will be entered against enforcement of
It is so ORDERED.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: June 2, 2009