Internet sex offender registries prompt high court to look into openness issues

From the Spring 2002 issue of The News Media & The Law, page 11.

The U.S. Supreme Court in February agreed to hear arguments in a case concerning Alaska’s sex offender registration program and determine whether the notification law violates the U.S. Constitution’s prohibition on ex post facto laws when it is applied to those convicted of sex crimes before the new law was enacted.

The case before the Supreme Court, Otte v. Doe, will consider the decision of the U.S. Court of Appeals in San Francisco (9th Cir.) that found that the Alaska law constituted an additional “punishment” because it allowed law enforcement agencies to post information about the offenders on the Internet.

Although there is no direct First Amendment claim in the case, it indirectly touches upon important record access issues. The court found that the listings constitute an additional penalty even though most of the information is a matter of public record that could be found in court files of criminal convictions.

The Alaska statute requires all convicted sex offenders to register with the state, be photographed, provide fingerprints and provide name, date of birth, address, place of employment and details about the conviction. The state publishes such information on its Web site, which allows searches of the database.

State officials argue that the laws were intended to promote public safety by letting members of a community determine whether a convicted sex offender lived in their vicinity, allowing the public to take steps to protect themselves.

Some convicted sex offenders oppose such laws, claiming they are denied housing and jobs and are threatened or attacked by vigilantes. They also argue that, for those whose crimes were committed before the law was enacted, the ongoing hostility and discrimination create an additional “punishment” in violation of the Constitution, which prohibits ex post facto laws from being enacted to bolster punishment after a person has been convicted of a crime. The constitutionality of the statutes as it applies to those who commit crimes after the passage of the law is not in question.

The appellate court found that the law imposed a great burden on the offenders.

“By posting the appellants’ names, addresses, and employer addresses on the Internet, the Act subjects them to community obloquy and scorn that damage them personally and professionally,” it said.

The court further found that the convicted offenders were punished by the law because Internet notification is “likely to make the plaintiffs completely unemployable.”

The court distinguished the Alaska law from a Washington state law it had previously upheld because the disclosure provisions of the Washington law were limited to narrow geographic areas. The Alaska law, on the other hand, allows any person in any location to access the Internet database.

The court acknowledged that Internet notification may help protect public safety by alerting citizens to potential dangers in their communities. But the court held that the scope of notification was too broad.

“[I]nformation as to all sex offenders is made available worldwide on the Internet without any restriction and without regard to whether the individual poses any future risk,” the court wrote. “Broadcasting the information about all past sex offenders on the Internet does not in any way limit its dissemination to those to whom the particular offender may be of concern.”

In 2000, a different federal appellate court ruled that Utah’s sex offender registration law, which also allowed publication of information on the Internet, was constitutional and was not a punishment.

In Femedeer v. Haun, the U.S. Court of Appeals in Denver (10th Cir.) ruled that the notification law did not impose a disability or restraint traditionally associated with a “punishment” because convicted offenders are “free to live where they choose, come and go as they please, and seek whatever employment they may desire.”

Although notification may result in negative consequences, such consequences are not part of a punishment imposed by the state, but rather part of the legitimate procedures used for open government, the court said.

The court also noted that, as a practical matter, notification does not impose the information upon the public, but merely makes it available for interested persons to review.

“Under Utah’s law, registry information is made widely available, but it is not broadcast in a manner approaching the historical examples of public shaming,” it said. “Interested individuals must still make an affirmative effort to retrieve the information. Internet notification works merely a technological extension . . . in our nation’s long history of making information public regarding criminal offenses.”

The 10th Circuit also ruled that the plaintiff could not pursue his claim anonymously, as it violates the principle that court proceedings should be open and provide information to the public.

The U.S. Supreme Court now has to decide whether the 10th Circuit or 9th Circuit interpretation should prevail.

Although the Court will decide the case based on the ex post facto clause, the case raises issues for access advocates because much of the information contained in the registry is already a matter of public record. The suggestion that the release of information contained in a public record could be a “punishment” could negatively affect the public’s right of access to records.

The Reporters Committee will file a friend-of-the-court brief to the Supreme Court to explain the concerns over access issues and how they could affect open government. — AG