Passwords

Maybe you’ve seen one of the news stories about the revised Georgia statute (Georgia Code § 41-1-12) that now requires sex offenders to turn their Internet passwords, screen names and email addresses over to authorities. The purpose of the revised statute is to give authorities the ability to track what sex offenders are doing online, to, in the words of one news story, “make sure” they “aren’t stalking children online or chatting with them about off-limits topics.”

Critics of the law say it goes too far, since it will let law enforcement agents read emails a sex offender sends to anyone, including family and employers. The state senator who wrote and sponsored the legislation revising the statute concedes that it does, at least to some extent, invade the privacy of those to whom it applies. But he also says they have forfeited their privacy rights by having been convicted of a sex crime and argues that the need to protect children outweighs any privacy concerns.

Georgia is apparently one of a very few (two?) states that have expanded their sex offender registry requirements to include passwords, usernames and email addresses. The first state to do this seems to be Utah, which adopted legislation requiring sex offenders to “provide Utah's sex offender registry with all of their internet identifiers and the websites on which they use those identifiers.” Doe v. Shurtleff, 2008 WL 4427594 (U.S. District Court for the District of Utah 2008). A man affected by this legislation filed a lawsuit challenging its constitutionality. He argued that it violated his First Amendment right to free speech, which includes a right to be able to speak anonymously.

The Utah statute required that sex offenders provide the following to the Utah Department of Corrections (UDOC):

(i) Internet identifiers and the addresses the offender uses for routing or self-identification in Internet communications or postings; [and]

(j) the name and Internet address of all websites on which the sex offender is registered using an online identifier, including all online identifiers and passwords used to access those websites. . . .

Utah Code§ 77-27-21.5(12). A related statute required them also to give the UDOC “any password required for use with an online identifier.” Utah Code § 77-27-21.5(2)(c). It defined “online identifier” as “any electronic mail, chat, instant messenger, social networking, or similar name used for Internet communication.”

Doe, who was challenging the Utah statute, made a number of First Amendment arguments, but the federal judge to whom the case was assigned found that his “most compelling” argument was that the Utah statutes abridged his First Amendment right to speak anonymously online. Doe v. Shurtleff, supra. In analyzing this argument, she noted that there were no opinions dealing with this issue; there were, of course, opinions dealing with challenges to different aspects of sex offender registry statutes, but not this particular issue. So the judge was, as she noted, “in wholly untested legal waters.” Doe v. Shurtleff, supra.

She therefore relied on Supreme Court dealing generally with the right to anonymous speech, one of which was McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). In McIntyre, the Court explained that

[a]nonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

The Utah judge noted that the Supreme Court has also recognized “the importance and unique nature of the Internet as a virtual `marketplace of ideas.” Doe v. Shurtleff, supra (quoting Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)). And she pointed out, quite correctly, that courts have combined these two principles to hold that the First Amendment protects anonymous online speech. Doe v. Shurtleff, supra.

The defendants in the Utah case (who included the Utah Attorney General) did not

directly challenge the right to anonymous speech online. Instead, they contend that because he is a sex offender, Mr. Doe has relinquished that right. Defendants cite cases in various other contexts that have approved curtailing the constitutional rights of sex offenders and felons. Defendants do not cite any authority, however, supporting the proposition that a sex offender who has completed his prison term and is not on parole or probation gives up First Amendment rights.

Doe v. Shurtleff, supra. So they made the same argument the sponsor of the Georgia legislation is making as to why that statute is not unconstitutional.

The judge disagreed. After reviewing cases, she found that

Mr. Doe has not given up his right to anonymous internet speech because of his status as a sex offender. . . . First, the United States Supreme Court has held that even people in custody have First Amendment rights, although restrictions on those rights are scrutinized under a low standard. . . Second, the [U.S. Court of Appeals for the Tenth Circuit] has ruled that a complete, unconditional ban on internet access as a condition of supervised release is overly broad and impermissible.

Doe v. Shurtleff, supra. The Utah judge found that the fact Doe, the plaintiff in the case, retained his First Amendment right to anonymous speech was “bolstered by the fact that Mr. Doe is not on parole or subject to supervised release.” Doe v. Shurtleff, supra.

She also found that the Utah statutes infringed on his right to anonymous speech: “If Mr. Doe provides the UDOC with his Internet information and knows that there are no statutory limits on how that information can be used by the UDOC, or others, he is less likely to engage in protected anonymous speech.” Doe v. Shurtleff, supra. The judge then had to decide if the infringement violated the First Amendment. Georgia Code § 41-1-12(o). That might open the statute up to a challenge based on the holding in the Doe v. Shurtleff case.

The infringement would NOT violate the First Amendment if (i) it was being imposed to protect a compelling government interest and (ii) it was the least restrictive means available to accomplish that end. Doe v. Shurtleff, supra. The judge found it was not:

Utah undoubtedly has a compelling interest in protecting children from internet predators and investigating online crimes, which are the stated goals of the Registry Statute. The Registry Statute appears to achieve these ends. For example, if the UDOC makes sex offenders' internet information immediately available to investigators, investigations into potential crimes originating online could be hastened. Moreover, knowing that police will have their internet information would probably discourage some sex offenders from using the internet to help them commit crimes.

The only question is whether the Registry Statute's disclosure requirements are the least restrictive means available to meet these goals. They are not. With no restrictions on how the UDOC can use or disseminate registrants' internet information, the Registry Statute implicates protected speech and criminal activity alike. An alternative statute that contained such restrictions would be similarly effective and less threatening to protected anonymous speech.

Doe v. Shurtleff, supra. The defendants asked the judge to interpret the statutes as only letting the UDOC use the Internet information a registrant provided for the purpose of conducting criminal investigations and as barring the UDOC from releasing it to the public. Doe v. Shurtleff, supra. She found that doing this would in effect require her to re-write the statute, which was a job for the Utah legislature. The judge therefore held that the Utah statute violated the First Amendment.

Would a court reach the same conclusion as to the revised Georgia statute? I don’t know. The Georgia statute says the information collected pursuant to its requirements “shall be treated as private data” except that it can be disclosed to law enforcement agencies to law enforcement purposes or to agencies conducting background checks. Those don’t seem particularly problematic. It also says that the Georgia Bureau of Investigation “or any sheriff maintaining” records under this legislation shall, in addition to informing the public about sex offenders living in their community, “release such other relevant information collected under this section that is necessary to protect the public concerning sexual offenders”.