Sex Offenders on MySpace

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According to a News and Observer story available here, MySpace has provided the Attorney General’s office with a list of 2,116 registered North Carolina sex offenders who were on MySpace.  (You can read more about this in the AG’s press release, here.)  The SBI has shared the list with all 100 sheriffs, and the SBI’s computer crimes folks are apparently working with the sheriffs and with probation to address the issue.

Does this mean that the courts should brace themselves for an influx of 2,116 cases charging violations of new G.S. 14-202.5, which makes it a Class I felony for a registered sex offender to “access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members,” or to create or maintain a page on such a site?

Maybe not.  For one thing, neither the story nor the press release indicate how many of the offenders have “access[ed]” MySpace since G.S. 14-202.5 took effect on December 1, 2008.  For another, I can imagine at least some sheriffs, in at least some cases, choosing to warn offenders instead of charging them, given the recent vintage of the prohibition.  Still, I wouldn’t be surprised if a number of prosecutions did result from this, particularly if there are sex offenders who appear to be using MySpace as a means of initiating contact with minors.  I’d expect some interesting defenses, including First Amendment challenges to the law, as well as defenses based on lack of proof of access or lack of proof of knowledge that the site permits minors to join.  Apparently, the AG is seeking similar information from Facebook, so there may be a second wave before long.

As an aside, the AG’s press release indicates that MySpace released the information pursuant to a subpoena.  I wonder what sort of subpoena it was — in general, N.C. R. Civ. P. 45 allows subpoenas to issue only when an “action is pending,” and that rule applies to criminal cases, too.  Given the breadth of the subpoena, I doubt that it is the result of a pending criminal case, and I’m not aware of a pending civil case that would support the issuance of the subpoena.  My guess is that the subpoena was issued under the SBI’s limited administrative subpoena power under G.S. 15A-298, which allows it to access “local or long-distance toll records or subscriber information” maintained by a “communications common carrier or an electronic communications service.”  There might be some doubt about whether MySpace qualifies as such a carrier or service, but I can’t see much incentive for them to fight the subpoena.

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