User:Radolfo

Background

Doe v. Shurtleff was a case decided by the Tenth Circuit Court of Appeals in which the court upheld a lower court's decision to allow the enforcement of a Utah statute which required sex offenders living in Utah to provide their online identifiers and passwords to sites they accessed, except employment and personal finance related sites.

Facts of the Case

Doe was sentenced to eighteen months of prison after being convicted by the United States military court system of committing sex offenses against a minor. After thirteen months, Doe was released without being placed on probation. However, as both a resident of Utah and a convicted sex offender, Doe was required to comply with the provisions of Utah Code Ann. Section 77-27-21.5, which included registering his Internet identifiers and the passwords he used to access all websites except personal finance or employment related sites.

Doe believed that the provisions of the code violated his First and Fourth amendment rights and the Ex Post Facto Clause of the Constitution. Doe did not provide the requested information and brought a lawsuit to challenge the statute. The district court concluded that since there were no restrictions on the use or dissemination of the registrant's information, the law infringed upon Doe's First Amendment right to anonymous speech, and therefore, declared the law invalid.

The Utah legislature amended the statute and eliminated the requirement requiring the offenders to provide their passwords and placed more limits on how the state could use identifiers.

The statute, intended to "assist in investigating kidnapping and sed related crimes, and in apprehending offenders" allowed the state to:

"(a) develop and operate a system to collect, analyze, maintain, and disseminate information on offenders and sex and kidnap offenses;

(b) make information listed in Subsection (27) available to the public; and

(c) share information provided by an offender under this section that may not be made available to the public under Subsection (27), but only:

(i) for the purposes under Subsection (2); or

(ii) in accordance with [the Government Records Access and Management Act]"

According to the Tenth Circuit opinion, "the State filed a motion for the district court to vacate its earlier order pursant to Rule 60(b) of the Federal Rules of Civil Procedure." The lower court then granted the motion with the holding that the revised restrictions no longer chilled Doe's speech and still provided him with his right to anonymous speech.

Decision

The Appellate court held, in reliance on Femedeer v. Haun, 227, F. 3d 1244, 1246 (10th Cir.2000), that the statute neither violated Doe's First and Fourth amendment rights nor the Ex Post Fact Clause.

Majority Opinion

I. First Amendment Issues

The Tenth Circuit upheld the lower court's decision to uphold the statute after the statutory revisions were implemented. Doe argued that the provisions of the statute were unconstitutional because they required disclosure of identifiers to the public, which would chill his speech. Since the statute infringed upon his first amendment, Doe believed that a strict scrutiny standard should apply to the assessment of the law.

The court, however, explained that the statute was content neutral. As a content-neutral regulation, Utah's reporting law was only subject to intermediate scrutiny, which requires that "the Act (1) serves a substantial governmental interest and (2) is 'narrowly draw' to serve that interest 'without unnecessarily interfering with First Amendment freedoms.'"

Doe and the State of Utah agree that the government has a compelling interest to enact the statute, so the rest of the opinion focuses on whether the statute violates his First Amendment rights. Doe focuses on the issue that the statute allows information provided by offenders be available to the public. The Court reasons that public disclosure of offender's information occurs only after a crime has been committed. The Court references a Fourth Circuit determination that, "Speech is chilled when an individual whose speech relise on anonymity is forced to reveal his identity as a precondition to expression."

Moreover, Doe claimed that the statute is overbroad in that it is extended to individuals involved in kidnapping offenses. He reasons that kidnapping offenses are not sex-related crimes, and is therefore not narrowly tailored enough. The Court responds that the purpose of the statute is "to assist in investigating kidnapping and sex-related crimes," therefore, the statute is not overbroad.

II. Fourth Amendment and Ex Post Facto Clause

The Court also assess Doe's reasonable expectation of privacy, to be free from unreasonable search and seizures.

Effects of the Decision

1. “Internet Safety Survey: Who will protect the children?”

-Growth of Internet has served as a benefit

-Proliferation of social networking sites -History of self-regulation of sites -State Regulation: Georgia/Utah/New Jersey/Texas/Illinois policies -Social Networking Safety Act drafted to avoid conflict with Section 230 -Cyberbullying Statistics -Solution proposals

2. “Law requiring Convicted Sex Offender....” & “Law Requiring Sex Offenders to Hand Over All Internet Passwords...” -First amendment and Fourth amendment -Reasons why some believe that the statute is a violation of first and fourth amendment rights -Elaboration on the arguments -Pro -Con

3. “Planning for the Future of Cyber Attack Attribution” -Explain how”Internet attribution requirements have resulted in censorship and international human rights violations.”

References

• Frieden, Jonathan. "Law Requiring Convicted Sex Offender to Disclose All Internet Identities is Constitutional Read more: http://ecommercelaw.typepad.com/ecommerce_law/2010/11/statute-requiring-sex-offender-internet-identifier-registry-held-constitutional.html#ixzz1lmf9FXDp". Blog. E-Commerce Law. Retrieved February 7, 2012. {{cite web}}: External link in |title= (help)

• Rotenberg, Marc. "Planning for the Future of Cyber Attack Attribution". Hearing Statement. Georgetown Law. Retrieved February 7, 2012.