Well readers it has been a very busy past few weeks in the cyberspace world and corrections. Where do I begin? Lets start with the Corn-huskers state, ie, Nebraska. On October 17, 2012, a federal judge struck down parts of Nebraska’s new sex offender law, which criminalized the use of social networking sites by sex offenders and also required them to notify the state when they posted material online. The judge also struck down provisions that required registered sex offenders, who were no longer on supervision, to submit to computer monitoring/searches by law enforcement. One issue the judge did not rule on, determining the issue not “ripe”, was a challenge of the provision requiring a parolees consent to computer searches and use of monitoring software. The decision was very detailed and based upon a hearing in which numerous witnesses testified. Part of the decision noted that much of the language of the statute was “over-broad and unduly burdensome.” It can be found here.
Now lets go to the sunshine state, California. First off, last week state’s electorate approved Proposition 35, which in part required registered sex offenders provide all their Internet identifiers and the names of their Internet service providers to law enforcement. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) promptly filed suit to block the law and an injunction was granted by a federal court pending a decision on the law. Then on November 8, 2012, it was reported that a California appellate court held a 15-year-old juvenile sex offender can’t be completely prohibited from using Facebook, Twitter, or other social-media sites because his offense didn’t involve the Internet. The court noted he had a First Amendment right to use social media and chat rooms. However, in the same ruling the appellate court found that prohibitions for him from visiting porn Web sites or using software or tools that could hamper probation efforts to manage his computer use were okay.
Finally, let us go across the seas to the United Kingdom. A court there ordered an Internet ban on a sex offender and the appellate court found the order “unreasonable”, overturned it, and ordered the offender to provide Internet history to police instead. It is being seen as indicating that Internet access is a “fundamental human” right there.
Facebook, the U.S. Department of Labor, the National Association of Colleges and Employers (NACE), DirectEmployers Association (DE), and the National Association of State Workforce Agencies (NASWA) created the ‘Social Jobs Partnership.’ The partnership’s goal will be to facilitate employment for America’s jobless through the use of social networks.
Cool uh? Something to help the unemployed, including ex-offenders, find jobs is a good thing. But wait, Facebook has a user policy that prohibits convicted sex offenders from accessing their site. So does that mean that at least 747,408 citizens can’t use a job search resource that was developed with government assistance? By the way the number is likely to be higher than that as Facebook’s policy prohibits “convicted sex offenders”, not just those required to register. Additionally, there are states that have legal statutes that bar sex offenders from social networking sites. How will they be able to use this government partnership program?
Now in fairness, Facebook isn’t actually hosting the job listings. It is just providing the search feature. But still, it would seem likely that one would need access to Facebook’s site somewhere along the line to use this new service. If a sex offender accesses the service, will they be violating Facebook’s user agreement? Would they be violating a state law somewhere? Who knows? The government has been pushing for employment for offenders because studies reflect it reduces recidivism, including among sex offenders. Yet, this new government partnership is being run with the aid of a Internet Service Provider that excludes sex offenders from using its site. We want to do all we can to reduce recidivism among sex offenders right? I think this is going to give the ACLU another argument against laws that provide wholesale Internet restrictions for sex offenders. How do you bar all sex offenders access to a government sponsored resource that helps them get a job, make a living, support their family, etc.? But yet how do you keep high risk “predators” from abusing this legitimate access to get at victims? Lot of questions ah?
Here is my suggestion, quit the wholesale legislative restrictions on Internet access. Stop the shotgun approach to managing risk. Instead provide legal authority for courts and parole authorities to tailor these restrictions based upon the individual needs/risks of a particular case. This would apply to only supervised offenders and not those whose served their sentences long ago. For what is worth, I don’t see an issue with requiring Internet identifiers being provided as part of sex offender registration. I note that neither did the 10th Circuit Court of Appeals in Doe v. Shurtleff, as long as they were not made public, which is also okay by me. The Supreme Court declined to hear an appeal of that decision by the way. I also don’t have a problem with sentencing enhancements for repeat offenders again using computers and Internet to commit crimes.