Law Requiring Convicted Sex Offender to Disclose All Internet Identities is Constitutional

On October 26, 2010, the United States Court of Appeals for the Tenth Circuit, decided a case involving a sex-offender's constitutional challenge of a Utah’s sex offender registry statute.  Doe v. Shurtleff, 2010 WL 4188248 (C.A.10 (Oct. 26, 2010)).  John Doe, a registered sex offender, appealed a decision from the district court enforcing the Utah statute that required all sex offenders living in Utah to register their “internet identifiers” and their corresponding websites with the state.  John Doe was convicted of a sex offense, served a prison sentence, and was released without being placed on probation or supervised release.  Nonetheless, Mr. Doe was required to comply with the states sex offender registry laws, which provided that he register all “internet identifiers” (defined as any electronic mail, chat, instant messenger, social networking, or similar name used for online communication) and “all online identifiers and passwords used to access” websites where he was using an online identifier. 

Mr. Doe challenged the law as unconstitutional, contending that the law violated his First and Fourth Amendment rights, as well as the Ex Post Facto Clause.  The district court granted Mr. Doe’s motion for summary judgment, holding that the lack of restrictions on how the state could use or disseminate registrants’ internet information, improperly infringed on Mr. Doe’s First Amendment right to anonymous speech.  Shortly after this decision, the Utah legislature amended the statute, removing any requirement that offenders register their passwords and placing limits on how state officials can use the offender’s identifiers.  Following these amendments, the State filed a motion to vacate the earlier order, which the district court granted.  Mr. Doe appeals that decision.

Mr. Doe contended that the registration statute violates his First Amendment right to engage in anonymous speech.  The right to engage in anonymous speech fully extends to communications made through the medium of the Internet.  See Reno v. ACLU, 521 U.S. 844, 870 (1997).  Mr. Doe argues that the required disclosure of internet identifiers to state officials, as well as the possibility of disclosure of identifiers to the public, chills his speech.  The Tenth Circuit rejected Mr. Doe’s argument holding that Utah’s law  provides sufficient safeguards to protect from public disclosure, by classifying the identifiers as private records, subject to limited disclosure.  The court also rejected his argument that disclosure to state officials could have a chilling effect, because such a disclosure would occur, if at all, at some period following Mr. Doe’s speech and not at the moment he wished to be heard.  Peterson v. Nat’l Telecomm & Info. Admin., 478 F.3d 626, 632 (4^th Cir. 2007)(“[s]peech is chilled when an individual whose speech relies on anonymity is forced to reveal his identity as a precondition to protection”).  Lastly, Mr. Doe contended that the statute was overbroad in violation of the First Amendment, because it required those involved in kidnapping to register under the same statute, which is not narrowly drawn to serve the stated purpose of investigating sex-related crimes.  However, the court also rejected this argument because the statute was specifically amended to allow access to online identifiers “to assist in investigating kidnapping and sex-related crimes.”

Mr. Doe also argued that the statute violates his Fourth Amendment right to be free from unreasonable searches and seizures.  The court rejected this argument citing previous 10^th Circuit precedent in which the court found no Fourth Amendment violation where police obtained, without a warrant, the IP address associated with a unique online identifier from Yahoo! after the individual using that identifier sent child pornography to another user.  United States v. Perrine, 518 F.3d 1196 (10^th Cir. 2008).  The court, in that case, held that the defendant had no reasonable expectation of privacy in “information he voluntarily transmitted to third-party internet providers, Cox and Yahoo!” Mr. Doe raised this issue for the first time on appeal, so the court upheld the finding of the district court on his Fourth Amendment claim.  Finally, Mr. Doe argued that the statute is an impermissible Ex Post Facto law, because the statute is so punitive in either purpose or effect as to transform what is a civil remedy into a criminal penalty.  The registry statute was previously analyzed in a 10^th Circuit case, in which the court held that it was entirely civil.  The court held, in this case, that the added requirement of registering individual online identifier information does not alter this analysis. Thus, the Utah statute requiring sex-offenders to register their individual online identifiers does not violate the U.S. Constitution. 

 

Comments

[JohnDoeUtah]

White v Baker, 696 F.Supp.2d 1289 (N.D. Georgia 2010), found this exect type of law to be unconstitutional.

There is a preliminary injunction against it in Doe v. Nebraska,--- F.Supp.2d ---, 2010 WL3253966 (D.Neb. 2010); set for trial May 2011.

There is also a new lawsuit against E-STOP in the State of New York.

Doe v. Shurtleff, 2010 WL 4188248 (C.A.10 (Oct. 26, 2010), cert. denied, 562 U.S. ---.

While SCOTUS Denied Certiorari in Doe v. Shurtleff at. el., that does not mean they ruled on ther merits. It was the first case on this issue to address SCOTUS, and without any Circuit Court of Appeals splits on the issue.

We will be driving for rulings of unconstitutionality in the 8th and 4th Circuit regarding pending cases already docketed there; as well as driving new lawsuits in the 4th and 9th Circuits. We will push this until SCOTUS takes a case, create enough of a Circuit Split on the issue, as the decision of the Tenth Circuit goes way beyond what is allowed under SCOTUS Precedence.