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December 10, 2012
Sex Offender Online Registration Statute Covers New Myspace Account -- State v. White
[Post by Venkat Balasubramani, with comments from Eric]
New Hampshire v. White, 2012 WL 6062701 (N.H., Dec. 7, 2012)
New Hampshire requires registered sex offenders to notify law enforcement when they create new “online identifiers.” The defendant, a registered sex offender, was charged with failing to register prior to using a Myspace account. The trial court dismissed the indictment because the Myspace account used the defendant’s own name along with a previously reported email address, and therefore registration of the Myspace account was not required. The N.H. Supreme Court disagrees.
The statute defines “online identifier” as including:
Electronic mail address, instant message, screen name, user identification, user profile information, and chat or other Internet communication name or identity information.
The New Hampshire Supreme Court looks to the dictionary definitions of the words “user” and “profile,” and also (citing to Griffin, a MySpace evidence case) notes that Myspace is a “social networking” website where people create “profiles” and interact with other members. The court says that just accessing Myspace doesn't require a profile, but posting information requires “membership,” including a profile. With this in mind, the court says it is “apparent that MySpace membership requires the creation of a personal ‘profile’ or ‘biographical account’ . . . triggering an obligation to report its creation to law enforcement.”
The court rejects defendant’s argument that, because he previously reported his email address, he shouldn’t have to report the Myspace account, saying that the statute separately references user profiles and email addresses. The court also says that its interpretation gives effect to legislative intent, which would define online profile broadly to allow for robust investigation and monitoring of registered sex offenders. Finally, the court rejects the vagueness challenge to the statute.
Myspace returns from the ashes?!
On a more serious note, legislatures always struggle with definitions of online activities; I think to a certain extent this is just inevitable. (See Eric’s posts: “The Proposed "Cloud Computing Act of 2012," and How Internet Regulation Can Go Awry/”; and “Big Problems in California's New Law Restricting Employers' Access to Employees' Online Accounts.”) The line between new accounts vs profiles versus services that are merely add-ons to existing accounts is grey. For example, consider Twitter and third party photo sharing sites or services. Are these new "online identifiers"?
What’s troubling here is that the defendant will suffer penal consequences for violating a statute that the trial court and appellate court couldn’t agree on the contours of. There is of course the larger question of whether it’s appropriate to restrict online networking for registered sex offenders. My read is that the cases have been pretty mixed—some courts have upheld challenges to these laws while others have allowed the restrictions.
1) If you're a sex offender, the rules of using the Internet are just different than for everyone else. So if you're a sex offender and want to use a social networking site, it's fair at this point to assume doing so is a heavily regulated activity.
2) Still, New Hampshire statutory definition is ambiguous--fatally, in my opinion. As Venkat indicates, the statute requires sex offenders to report the creation or changes to any "electronic mail address, instant message screen name, user identification, user profile information, and chat or other Internet communication name or identity information." Some situations are clearly covered by this language, like a sex offender creating a new email address or social networking site account, but there are countless border cases. For example, what does it mean to change an "Internet communication...identity information"? I have absolutely no idea, and attaching criminal sanctions to a statute with impossible-to-decipher language like this is not OK.
3) As much as I object to the statute on constitutional grounds, I object to it even more on empirical grounds. I have yet to see any empirical evidence that statutes requiring sex offenders to report their user credentials actually solves any social problems. It relies on a series of inferences that seem dubious to me, starting with the empirically unproven inference that social networking sites are a critical path towards sex offender recidivism. (I imagine that's true for a minority of sex offenders, but even then I'd like to see the data). Until we prove that assumption, it's also possible that these statutes don't help one bit. Meanwhile, the statutes create easy ways for sex offenders to commit technical violations--and, in fact, it's possible the statutes are even socially harmful by hindering sex offender rehabilitation and mainstreaming.
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Posted by Venkat at December 10, 2012 08:29 AM | Content Regulation