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Home > Legal Updates, Supervision > Update: Utah’s Registered Sex Offenders Still Must Disclose Internet Identifiers

Update: Utah’s Registered Sex Offenders Still Must Disclose Internet Identifiers

March 18th, 2011

Not too long ago an individual purportedly a plaintiff in Doe v. Shurtleff, Court of Appeals, 10th Circuit 2010  was arguing to anyone that would listen that requiring registered sex offenders to disclose Internet identifiers as part of their registration was a violation their rights, most notably the First Amendment rights.  He was for a while a frequent critic of issues reported here regarding sex offender registeration and cyber-supervision suggestions.

As background to this discussion, on July 2, 2008, registration regulations implemented by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking required by the Adam Walsh Child Protection and Safety Act of 2006 took effect.  These regulations mandated that Internet identifiers, such as e-mail addresses and profiles, were to be disclosed by sex offenders as part of the federal registration requirements. Later, the Keeping the Internet Devoid of Sexual Predators Act of 2008, also known as the KIDS Act of 2008, further solidified the disclosure of Internet identifiers as a Congressional mandate. 

The history on John Doe’s case is he brought suit  regarding the requirement to have Internet identifiers disclosed as part of sex offender registration. Initially, this information was available to the public. However, Utah amended its registration law, reflecting Internet identifiers of registered sex offenders would no longer be public. The district court removed its injunction and upheld the law. John Doe then appealed the case to the 10th Circuit.

The 1oth Circuit upheld the district court decision, allowing Internet identifiers as part of Utah’s sex offender registry.  John Doe also appealed this decision to the Supreme Court of the United States (Case No. 10-957) by filing a  Petition for a Writ of Certiorari on January 24, 2011.  On March  7, 2011, the Supreme Court denied the petition.

“The effect of denial of certiorari by the U.S. Supreme Court is often debated.  The decision of the Court of Appeals is unaffected.   However, the decision does not necessarily reflect agreement with the decision of the lower court.”

In layman’s terms, John Doe will now have to register all his Internet identifiers as a resident of Utah (he claimed to be given a “temporary pass” by the Attorney General, pending the decision in this case).  The 10th Circuit and district courts’ decision stands.

I should note right after the 10th Circuit ruling was made the federal regulations were changed on January 11, 2011,  to reflect Internet Identifers were to be excempt from the public registeration websites.  States still working on getting compliant with the federal law would be well advised to make sure Internet idenifiter are required but not made publicly  available.

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Art Legal Updates, Supervision

  1. JohnDoeUtah
    March 23rd, 2011 at 08:17 | #1

    You are correct, Art. The case was denied, but that does not mean this is over. As stated before this law is unenforceable in the State of Georgia (who had a law in 2009 identical to Utah’s), the judge in White v. Baker696 F.Supp.2d 1289 (2010) ruled the requirement unconstitutional. As a result, Georgia took the requirement off the books. Also, the law is currently unenforceable in Nebraska, Doe v. Nebraska, ___ F.Supp.2d ___, 2010 WL 3259366 (2010); seeing that the law has be injoined already, it is highly likely they will prevail as well. A trial on the issue is taking place in May, 2011. As well, there is a SEALED case in the State of New York (filed in Jan 2011), challenging thier E-STOP law (internet identifier law). Due to prior Fourth Circuit Court of Appeals decisions (which directly conflict with the legal basis of the Tenth Circuit Court of Appeals decision in Shurtleff), it is highly likely that the plaintiff in New York will win his case as well. California may pass a similar law this session (2011), and they have been promised a legal challenge if they do pass such a law (with EFF headquartered in California, and the ACLU, I’m sure they will get involved). So, by the end of 2011 there will likely be three Federal District Court decisions saying the law is unconstitutional (eventhough they are not disclosed to the public, disclosure to the government chills speech, therefore unconstitutional), verses the Tenth Circuit. We are also recruiting a plaintiff in Virginia, the Second Circuit Court of Appeals. So, eventually, I am willing to bet, by 2014 there will be four Circuit Court decision ruling the law unconstitutional, with the Tenth Circuit standing alone; and, I will be back. I have the fortunate opportunity to sue the Feds under the KIDS Act of 2008 (which was not law when I sued) as I have exhausted the state route. Once there is enough circuits on my side, I will file the second case and drive it back to the United States Supreme Court (adding everything I’ve learned from Shurtleff), and drive to bring it down nationwide. Also, if the State of Utah allows my information to be leaked to anyone other than law enforcement, or another out-of-state lawenforcement agency releases my info under there laws (the fed), we will revive Shurtleff under a Rule 60(b) Motion, cause the Tenth Circuit declared and reasoned that any person who recieves information from Utah must only use it for lawenforcement purposes only (so the KIDS Act of 2008 giving info to social networking sites, would violate the courts declaration, reasoning, and state privacy laws; as that is not a law enforcement purpose).

    • Art
      March 26th, 2011 at 18:34 | #2

      Yes John, I know… Hope springs enternal. Where do I begin. As more and more states move to get incompliance with Adam Walsh, they will be requiring the disclosure of Internet Identifers be made at the time of registration. As the registeration regulations reflect that information can’ t be made public. So it still collected…by law enforcement. Law enforcement can use it to tie addresses to new cases when they occur and enforcing laws against sex offenders being online when they are not suppose to be. Additionally. probation/parole can use it to determine if someone is online and they are not suppose to be per a condition of release. So at the same time you are brewing these court cases the law is already taken into account making sure the purpose of collecting this information. All those other circuits are going to look at their law…in their jurisdictions to see how in lines up with the Constitution….They also are going to look at that 10th Circuit case…they are not going to just ignore it…particularly since your pettion to the Supreme Court was denied. You have an up hill battle ahead. This may go to the Supreme Court…. or it may be nuances carved out by different circuits… Keep us posted…but please try to provide all the facts…don’t leave out when the decision goes against your position.

  2. JohnDoeUtah
    March 23rd, 2011 at 08:39 | #3

    I might also add that the new regulations released by the Department of Justice in January, 2011, do state that internet identifiers shall not be included on public sex offender registry websites. However, the regulations explicitly address that it does not prohibit other forms of public disclosure of internet identifiers (i.e., newspapers, government records requests [paper], e-mails, television). The decision of the Tenth Circuit Court of Appeals is conditioned on absolutely NO public disclosure, and use for law enforcement only (i.e., investigating crimes). Any disclosure to the public (whether individual citizens or private companies [facebook, myspace, twitter]) runs afoul of the reasoning behind the courts decision, and opens the door to further lawsuits.

    • Art
      March 26th, 2011 at 18:03 | #4

      Dude did you read the article or just skim for your name? I said that . It is in the last paragraph. You really need to read the entire article before you start commenting.

  3. JohnDoeUtah
    April 6th, 2011 at 12:35 | #5

    @Art
    I read it, and I was replying specifically to your statement that the federal rules prohibit public disclosure.

    That is not an acurate statement.

    If you read the Supplimental guidelines, they explicitly say that they only prohibit public disclosure via the public registry websites (and, make a point to say that other “avenues” of public disclosure are not prohibited).

    • Art
      April 7th, 2011 at 00:05 | #6

      Clarification noted. The federal rules prohibit disclosure via the public registry website. And you are correct that disclosure can be made via other means. But it the 8th Circuit decision seems to impact that.. We will see how it plays out. Thanks for pointing out the clarification. That is why I try to include a link to the material itself.

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