Friday, July 04, 2008

Remote Monitoring of Sex Offenders' Computer Use

Once again, I am indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court for an interesting new decision. It was issued by the U.S. District Court for the Southern District of Indiana in John Doe et al. v. Prosecutor, Marion County, Indiana (Case No. 1:08-cv-0436-DFH-TAB).

(If you’re interested in reading it, you can probably find it on the court’s website, which is here. Once you get to the site, click on the “Case Information” button you’ll see in the panel on your left. Then click on “Recent Court Opinions” in the pop-up box. Once you get to the Recent Court Opinions page, click on Chief Judge David F. Hamilton, and you should see the opinion listed, probably at the top on the left. They seem to be listed with the recent decisions first. The decision was issued on June 24, 2008, and so should be up by the time you look for it. It’s not up as I write this on July 3.)

The case is a civil class action brought by “a class of `all persons, current and future, who are required to register as sex or violent offenders pursuant to Indiana law and who are not currently on parole or probation or court supervision.’” John Doe v. Prosecutor, supra. They brought a declaratory judgment action. In a declaratory judgment action, the plaintiffs aren’t seeking damages, which is what civil plaintiffs usually seek; they’re asking the court to declare what the law is. Here, the plaintiffs asked this federal court to declare that a particular provision in a new Indiana law scheduled to go into effect on July 1 violates the 4th Amendment. They also asked the court to issue an injunction barring enforcement of the law if the court found that it did, indeed, violate the 4th amendment.

The law in question was an amendment to the Indiana laws requiring the registration of sex offenders. Here is how Judge Hamilton described the structure of the existing laws:
Indiana has established a sex and violent offender registry, and the information is available on a public website. Ind. Code § 36-2- 13-5.5. The law requires those convicted of a wide range of offenses to register. The offenses include rape, criminal deviate conduct, child molesting, child exploitation, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor , . . , incest, sexual battery, kidnaping if the victim is less than 18 years old, . . . possession of child pornography, promoting prostitution, human trafficking and promoting human trafficking if the victim is less than 18 years old, sexual trafficking of a minor, murder, voluntary manslaughter, an attempt to commit a listed offense, and any substantially equivalent crime under the laws of another jurisdiction, and certain juvenile offenses. Ind. Code § 11-8-8-5.1. Some . . . offenders must register for the rest of their lives. Ind. Code § 35-38-1-7.5. Others must register until ten years have passed after the later of the offender’s release from prison . . . or placement on parole or probation. Ind. Code § 11-8-8-19(a).
John Doe v. Prosecutor, supra. Judge Hamilton noted that plaintiff class consisted of people who have committed serious crimes and have been punished for those crimes. They have returned to society, and they have rights under the . . . Constitution.” John Doe v. Prosecutor, supra. He also noted that they were entitled to bring the challenge to the law because its requirements would apply to them.

The law they were challenging was Indiana Public Law 119-2008 § 6 (2008), to go into effect on July 1. One thing it does is increase the information someone required to register must provide. “Under current law, the registry must include a recent photograph of the offender, the home address, . . . . a physical description, information about the vehicles he uses, and employer and/or school information.” John Doe v. Prosecutor, supra. Under the new law, “the registrant must also provide any electronic mail address, instant messaging user name, electronic chat room user name, or social networking web site user name that the registrant uses or intends to use.” John Doe v. Prosecutor, supra. The plaintiffs didn’t challenge any of those requirements.

They did challenge the new requirement to be codified as Ind. Code § 11-8-8-8(b). This is what § 8(b) required:
(b) If the sex or violent offender registers any information under subsection (a)(7) [i.e., electronic mail addresses, user names, etc.], the offender shall sign a consent form authorizing the:
(1) search of the sex or violent offender’s personal computer or device with Internet capability, at any time; and
(2) installation on the sex or violent offender’s personal computer or device with Internet capability, at the sex or violent offender’s expense, of hardware or software to monitor the sex or violent offender’s Internet usage.
John Doe v. Prosecutor, supra. A knowing or intentional failure to comply with the requirements would be a felony under Indiana law, as would a knowing or intentional failure to provide the consent. John Doe v. Prosecutor, supra.

Two of the plaintiffs (Doe and Morris)were designated as class representatives, which means their facts were used essentially as an exemplar of the impact the statute could have on all the members of the class. Remember, the people in the class have all been released from prison and from any subsequent probation other court supervision. Here is what the court knew about the two designated class representatives:
Doe owns his own business and operates it out of his home. He has an electronic mail address and constantly uses his computer in his business. He also owns a cellular telephone with internet capability. Doe. . . will be required to give permission to unspecified law enforcement authorities to enter his home at any time and to search his computer and telephone at any time, all without a warrant. He also will be required to pay for software or hardware to allow other unspecified law enforcement authorities to search his computer and monitor his internet use. Doe does not want to comply with section 8(b) because it will remove his privacy in his own home. Also, his computer contains a great deal of private information concerning his clients and his business dealings, including information that his clients have sent him in confidence and that they consider proprietary. He has formal non-disclosure requirements with clients and may not disclose information to other persons who have not also signed non-disclosure agreements. Neighbors know that Doe is listed on the registry, but he believes his clients do not know. Doe does not want to tell clients he is on the registry because of his fear that he will lose business and suffer financially. Doe’s computer also contains confidential information personal to Doe, including personal banking information and communications with his attorney.

Morris lives with his wife. He owns a personal computer at home. He has an electronic mail address and owns an internet-capable cellular telephone. Morris does his family’s banking over the internet with his personal computer, which thus contains his financial and banking records. Morris also does not want to comply with section 8(b) because it will remove his and his wife’s privacy in their home. He does not want to lose his privacy in his home and effects, and he also does not want to have to install and pay for software and/or hardware that would allow other persons to monitor his computer use.
John Doe v. Prosecutor, supra.

The plaintiffs argued that the requirements violate the 4th Amendment because they authorize warrantless intrusions into the homes of all members of the plaintiff class – and the homes of all future people who would fall into that category. The home is the most private of all the places protected by the 4th Amendment, for reasons that go back into our history. The 4th Amendment is based in the English notion that a “man’s home is his castle”, which means law enforcement officers can’t just barge in and search whenever they feel like it. The method English common law and the drafters of the 4th Amendment jointly arrived at is (i) probable cause to look for a particular thing and (ii) a search warrant issued by a magistrate authorizing a search for that thing. That protects people by limiting what law enforcement can do.

Judge Hamilton held that the new requirements are unconstitutional:
Section 8(b) cuts into the heart of the Fourth Amendment – privacy in the home. Section 8(b) requires the members of the plaintiff class to consent to the search of their personal computers or internet-capable devices `at any time.’ Even if law enforcement officers chose to wait outside the home to demand the right to search a registrant’s portable devices (the statute is silent on the point), personal computers will most often be inside the home. By granting unlimited access to these devices, the Indiana legislation crosses the most fundamental boundary under the Fourth Amendment, and dispenses with the warrant requirement. The ability of the individual to retreat into his home, and there to be free from unreasonable intrusion by the government, stands `at the very core’ of the protections granted by the Fourth Amendment.
John Doe v. Prosecutor, supra.

He also found that the statute’s use of “consent” was invalid because it’s a coerced consent: “These plaintiffs have rights under the Fourth Amendment. The State may not force them to waive those rights under threat of criminal prosecution for failing or refusing to do so.” John Doe v. Prosecutor, supra. (His opinion is very well-reasoned and detailed and, as such, is 50 pages long, so I can’t do it justice here. If you’re interested, check it out on the court’s website.)

The plaintiffs won, and the new statute can’t be enforced. I don’t know about you, but I’m on Judge Hamilton’s side. But I’m sure the state of Indiana will appeal the decision to the 7th Circuit Court of Appeals.


Anonymous said...

I understand what they were *trying* to do, since sex offender simply don't "get better" and to no one's surprise, don't reform during incarceration.

However speaking as an LEO, I'm shocked that the legislature would even try fails the "duh" test of constitutionality. If the law requires the registrant to sign a consent form, then on what planet is it "consent?"

Well, they'll have to keep trying to do something to keep our kids (and adults!) safer. A good place to start is by putting 10 year probation/parole tails on these guys with search and seizure clauses, as well as realizing on an institutional level that someone who is sexually aroused by children doesn't change their fundamental sex drive.

I'll step off the soapbox now. the blog, just found it.


Susan Brenner said...

Thanks Paul, for your comments on the case. Like you, I can't imagine what the Indiana legislators were thinking . . . looking for an easy fix to a not so easy problem, maybe.

Glad you like the blog. If you come across any interesting topics, please let me know.

Anonymous said...

The 4th amendment applies to all United States Citizens, and no state, not even the federal government has the right to perform Gestapo actions against anyone. This is not Hitler's Germany.

If law enforcement has probable cause then let them so state that cause and obtain a legal warrant to search for a particular thing.

A search without a warrant would allow law enforcement (THE STATE) to barge into a person's home and search anywhere they so chose, including all the so called GOOD PEOPLE who seemingly don't have any skeletons to hide. If you would not allow such action against you, then it is reasonable to say, that type of action would be unreasonable against any citizen, or foreigner living within the borders of the United States.

Too many people think that people who are labeled as sex offender, having the de facto meaning of child molester should have no rights, well they do. So far most have been too afraid to say so, but more are coming forward understanding that silence is not a virtue, and cowering away will not stop these vigilante activities sanctioned and performed by the state.

Sex Offender is a harsh sounding word combination and it is worse with all the omissions of facts, and clever twisting of information’s by vigilante legislators and their support constituencies.

I am going to say something about race because in all the research I and others have been doing, I have found that the principle instigators of this unreasonable hate mongering is coming from white folks, which actually isn’t all that surprising based on the history of the United States in past and recent times. This isn’t to say ALL white people are of this hate them mindset, but it is to say that it is where the major thrusts for dismissing constitutional protections, liberties, and rights are coming from.

Again, just to make it perfectly clear the United States of America the last time I looked is not Gestapo Germany, nor under the terror reign of Mussolini. Don’t be so eager to take away the protections and rights of others.

I can here some of you now saying, well what rights and protections did those SEX OFFENDERS take away from the poor children?

The answer to that is, if all who are labeled as SEX OFFENDER actually lured, enticed, solicited, molested, or murdered a child then I too would hide behind such thinking and would want to hang them all, but the fact of the matter is the vigilante minded individual makes no distinctions, and is quite willing to throw everyone into the same pot with molesters, predators, and murderers. All of you by now ought to know that huge numbers of people have no such crimes against children, and as a matter of fact some of these so called sex offenders are children who have been labeled such by the unreasonable and unreasoning mind, and some crimes or offenses are so innocuous and benign as to be laughable when these offenses are called SEX OFFENSES.

Anonymous said...

Well obviously eveyone is missing the point here. Sex Offenders have teh highest recidivism rate of any offender. The purpose of these restrictions is to provide some small safeguards for society. Your kids.....your neighbors kids etc... I'm sure the parents of the child in Vermont last month wishes that the Sex Offender that was released from prison and 6 weeks later enticed thier child to meet him and rape and killed her, wished that his computer was monitored since it was the tool he used to communicate with the child.

I feel that the solution is to offer them a choice. If the offender wants to utilize a computer then they need to agree for it to be monitored, and if they do not agree with the monitoring because they feel it is too intrusive, then they agree to not have or use a computer. It really is a choice of the offender not big brother trying to pry into their lives.

While everyone keeps saying that they have served thier time in jail and should be treated like a regular citizen, proves that they do not understand the criminal justice system. When someone is probated they are offered an opportunity to get out of prison and enter into a community supervision program. This means that they have not served thier full sentence, but we are offering them an opportunity to prove their ability to integrate into society, with supervision (meaning someone watching them for a period of time). I feel that the Federal Court in itself took a knee jerk reaction to the pressures placed on them by the sex offender and decided to rule in favor of the sex offender population, and giving them rights they have not proven worthy of having, and that the judge as grossly disregarded the safety of the general population.

Anonymous said...

So ... are you saying any criminal should be closely monitored in fear they will again commit a crime? That probably gives our friends at the IRS a great interpretation of the constitution when it comes to anyone who has cheated on their taxes. Soon we will have monitoring software on everyone's computer and allow the government to keep close eye on all of us.

Today we close the door on sex offenders and deny them basic rights guaranteed by the constitution ... tomorrow big brother will be watching you! It's a slippery slope. Give them an inch, they'll take a mile.

By the way, all current studies show that sex offenders actually have the LOWEST recidivism rate.

Susan Brenner said...

I, for one, am not saying anyone should be closely monitored to see if they commit a crime . . . at least not unless it is in the course of an ongoing criminal investigation (say, into a planned bank robbery or muder) and is supported by probable cause in that instance.