Sex Offenders, Online Identifiers, and the First Amendment

A federal judge in Utah recently invalidated the part of Utah’s sex offender registry that requires each registrant to provide his “[i]nternet identifiers and . . . addresses . . . [and] the name . . . of all websites on which the sex offender is registered.” Doe v. Shurtleff, 2008 WL 4427594 (D. Ut. Sept. 15, 2008) (quoting Utah Code Ann. ยง 77-27-21.5(12)(i) & (j)). This raises some questions about the constitutionality of North Carolina’s new requirement that sex offenders provide “[a]ny online identifier that the person uses or intends to use.” G.S. 14-208.7(b)(7) (eff. May 1, 2009). . .

The Utah judge held that sex offenders retain their First Amendment free speech rights, including their right to engage in anonymous speech. She acknowledged that Utah has a strong interest in preventing sex offenders from using the internet as a way to commit further sex crimes, but ruled that Utah’s registration requirements were not narrowly tailored to that interest. She was particularly concerned that the relevant statutes did not limit the uses to which the state could put the information it collected (for example, to criminal investigations only), and did not require the state to keep the information confidential. As a result, she granted summary judgment to the registrant and enjoined the state from enforcing the portion of the registration laws that requires registrants to provide their internet identifiers, etc.

North Carolina’s new law requires each registrant to provide his “electronic mail address, instant message screen name, user ID, chat or other Internet communication name.” G.S. 14-206.6(1n) (eff. May 1, 2009). Like Utah’s statute, ours doesn’t put any limits on the uses to which the state can put the information it collects, and has few, if any, limits on how the state may disseminate the information. See generally G.S. 14-208.10.

Does this mean that the North Carolina statute is vulnerable to a challenge like the one that succeeded in Doe? Maybe, maybe not. Even if the legal analysis in Doe is correct — and the judge acknowledged that she was in “untested legal waters” — North Carolina’s statute is narrower than Utah’s. A sex offender in Utah who logs into the New York Times website needs to disclose that he visits the site, his username, and his password. A sex offender in North Carolina who does the same thing may need to supply his username (if it is different than his email address and if it is construed to be an “Internet communication name”), but doesn’t need to say that he visits the site, and doesn’t need to give up his password. Whether these are distinctions that make a difference only time, and litigation, will tell.