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Supreme Court Strikes Down Social Media Restrictions for Non-Supervised Sex Offenders
By Art Bowker, Cybercrime Specialist
Published: 07/10/2017

Socialmedia-1 In May of this year, I mentioned that the Supreme Court was going to decide whether North Carolina’s criminal statute prohibiting sex offenders would stand constitutional scrutiny. I speculated it would be struck down and I guess I win a cigar because the entire Court voted to nullify North Carolina’s statute for violating the First Amendment (Packingham v. North Carolina).

So what does this mean for probation and post release conditions prohibiting sex offenders from using social media? Well, here is what my crystal ball tells me. First, let me note that Packingham was NOT on any form of community supervision. He had completed his sentence and was prosecuted for a new criminal offense, specifically accessing social media as a convicted sex offender. Let me repeat that… this person was not under any supervision condition prohibiting him from accessing social media.

My layman’s reading of the Supreme Court decision is that it currently does not invalidate supervision conditions prohibiting sex offenders’ from accessing social media. That said, my layman’s mind tells me that the Supreme Court in this decisions has recognized the significance of accessing to social media as it relates to the First Amendment. It has not struck down the supervision conditions but it has clearly indicated that they likely will be subject to judicial review. In short, conditions restricting supervised offenders from accessing social media in the future will likely have to be narrowly drawn and related to the offender. For instance, one’s status as a supervised sex offender will not alone be enough to trigger the restriction. They might actually have to had to been convicted or have a history of abusing social media to commit a crime. Even then, they might not be totally restricted from accessing social media. For instance, they may be granted permission subject to monitoring of their profiles and/or Internet/computer use. This decision will likely make any total Internet restriction for probation/parole cases harder to justify. Look for more conditions that allow Internet use but only with some kind of monitoring.

The interesting thing here is Facebook has a policy that prohibits sex offenders from using their site. This case does not force Facebook to allow sex offenders on their site. It only struck down North Carolina’s statute criminalizing the access of any social media site by sex offenders. Will Facebook change their policy? Why should they? My guess is no. But I have been wrong before. Also, I don’t’ think the case will not have any impact on Facebook’s policy concerning inmates using their site, which it recently mitigated somewhat.

My question is why don’t legislatures just focus on increasing the penalties for sex offenders who use certain high tech tools to victimize others? For instance, adding a mandatory criminal penalty for any person that uses social media to victimize another. That would not restrict anyone from accessing social media. It would just criminalize or increase the penalty for using it as a tool to victimize others.

This case will require officers to justify their conditions. It will not, however be the end to conditions governing how offenders access the Internet while on supervision. I see more monitoring and more use of searches. Additionally, officers may now have to check profiles to see who supervised sex offenders may be “friending” to insure there are no future victims. On that note I left a cigar lit somewhere. Be safe out there!

Mr. Bowker has over 27 years’ experience in law enforcement/corrections and is recognized as an expert in managing cyber-risk in offender populations. In addition to co-writing Investigating Internet Crimes, 1st Edition: An Introduction to Solving Crimes in Cyberspace, (Syngress, November 2013), he is also the author of The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century. In 2013, he was recognized by the Federal Probation and Pretrial Officers Association (FPPOA) and the American Probation and Parole Association (APPA) for his contributions in managing cybercrime risk in offender populations.

Other articles by Bowker:

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