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Remote Monitoring of Sex Offenders' Computer Use

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Once again, I am indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court for an interesting new decision. It was issued by the U.S. District Court for the Southern District of Indiana in John Doe et al. v. Prosecutor, Marion County, Indiana (Case No. 1:08-cv-0436-DFH-TAB).

(If you?re interested in reading it, you can probably find it on the court?s website, which is here. Once you get to the site, click on the ?Case Information? button you?ll see in the panel on your left. Then click on ?Recent Court Opinions? in the pop-up box. Once you get to the Recent Court Opinions page, click on Chief Judge David F. Hamilton, and you should see the opinion listed, probably at the top on the left. They seem to be listed with the recent decisions first. The decision was issued on June 24, 2008, and so should be up by the time you look for it. It?s not up as I write this on July 3.)

The case is a civil class action brought by ?a class of `all persons, current and future, who are required to register as sex or violent offenders pursuant to Indiana law and who are not currently on parole or probation or court supervision.?? John Doe v. Prosecutor, supra. They brought a declaratory judgment action. In a declaratory judgment action, the plaintiffs aren?t seeking damages, which is what civil plaintiffs usually seek; they?re asking the court to declare what the law is. Here, the plaintiffs asked this federal court to declare that a particular provision in a new Indiana law scheduled to go into effect on July 1 violates the 4th Amendment. They also asked the court to issue an injunction barring enforcement of the law if the court found that it did, indeed, violate the 4th amendment.

The law in question was an amendment to the Indiana laws requiring the registration of sex offenders. Here is how Judge Hamilton described the structure of the existing laws:

Indiana has established a sex and violent offender registry, and the information is available on a public website. Ind. Code 36-2- 13-5.5. The law requires those convicted of a wide range of offenses to register. The offenses include rape, criminal deviate conduct, child molesting, child exploitation, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor , . . , incest, sexual battery, kidnaping if the victim is less than 18 years old, . . . possession of child pornography, promoting prostitution, human trafficking and promoting human trafficking if the victim is less than 18 years old, sexual trafficking of a minor, murder, voluntary manslaughter, an attempt to commit a listed offense, and any substantially equivalent crime under the laws of another jurisdiction, and certain juvenile offenses. Ind. Code 11-8-8-5.1. Some . . . offenders must register for the rest of their lives. Ind. Code 35-38-1-7.5. Others must register until ten years have passed after the later of the offender?s release from prison . . . or placement on parole or probation. Ind. Code 11-8-8-19(a).
John Doe v. Prosecutor, supra. Judge Hamilton noted that plaintiff class consisted of people who have committed serious crimes and have been punished for those crimes. They have returned to society, and they have rights under the . . . Constitution.? John Doe v. Prosecutor, supra. He also noted that they were entitled to bring the challenge to the law because its requirements would apply to them.

The law they were challenging was Indiana Public Law 119-2008 6 (2008), to go into effect on July 1. One thing it does is increase the information someone required to register must provide. ?Under current law, the registry must include a recent photograph of the offender, the home address, . . . . a physical description, information about the vehicles he uses, and employer and/or school information.? John Doe v. Prosecutor, supra. Under the new law, ?the registrant must also provide any electronic mail address, instant messaging user name, electronic chat room user name, or social networking web site user name that the registrant uses or intends to use.? John Doe v. Prosecutor, supra. The plaintiffs didn?t challenge any of those requirements.

They did challenge the new requirement to be codified as Ind. Code 11-8-8-8(b). This is what 8(b) required:

(b) If the sex or violent offender registers any information under subsection (a)(7) [i.e., electronic mail addresses, user names, etc.], the offender shall sign a consent form authorizing the:
(1) search of the sex or violent offender?s personal computer or device with Internet capability, at any time; and
(2) installation on the sex or violent offender?s personal computer or device with Internet capability, at the sex or violent offender?s expense, of hardware or software to monitor the sex or violent offender?s Internet usage.
John Doe v. Prosecutor, supra. A knowing or intentional failure to comply with the requirements would be a felony under Indiana law, as would a knowing or intentional failure to provide the consent. John Doe v. Prosecutor, supra.

Two of the plaintiffs (Doe and Morris)were designated as class representatives, which means their facts were used essentially as an exemplar of the impact the statute could have on all the members of the class. Remember, the people in the class have all been released from prison and from any subsequent probation other court supervision. Here is what the court knew about the two designated class representatives:

Doe owns his own business and operates it out of his home. He has an electronic mail address and constantly uses his computer in his business. He also owns a cellular telephone with internet capability. Doe. . . will be required to give permission to unspecified law enforcement authorities to enter his home at any time and to search his computer and telephone at any time, all without a warrant. He also will be required to pay for software or hardware to allow other unspecified law enforcement authorities to search his computer and monitor his internet use. Doe does not want to comply with section 8(b) because it will remove his privacy in his own home. Also, his computer contains a great deal of private information concerning his clients and his business dealings, including information that his clients have sent him in confidence and that they consider proprietary. He has formal non-disclosure requirements with clients and may not disclose information to other persons who have not also signed non-disclosure agreements. Neighbors know that Doe is listed on the registry, but he believes his clients do not know. Doe does not want to tell clients he is on the registry because of his fear that he will lose business and suffer financially. Doe?s computer also contains confidential information personal to Doe, including personal banking information and communications with his attorney.

Morris lives with his wife. He owns a personal computer at home. He has an electronic mail address and owns an internet-capable cellular telephone. Morris does his family?s banking over the internet with his personal computer, which thus contains his financial and banking records. Morris also does not want to comply with section 8(b) because it will remove his and his wife?s privacy in their home. He does not want to lose his privacy in his home and effects, and he also does not want to have to install and pay for software and/or hardware that would allow other persons to monitor his computer use.

John Doe v. Prosecutor, supra.

The plaintiffs argued that the requirements violate the 4th Amendment because they authorize warrantless intrusions into the homes of all members of the plaintiff class ? and the homes of all future people who would fall into that category. The home is the most private of all the places protected by the 4th Amendment, for reasons that go back into our history. The 4th Amendment is based in the English notion that a ?man?s home is his castle?, which means law enforcement officers can?t just barge in and search whenever they feel like it. The method English common law and the drafters of the 4th Amendment jointly arrived at is (i) probable cause to look for a particular thing and (ii) a search warrant issued by a magistrate authorizing a search for that thing. That protects people by limiting what law enforcement can do.

Judge Hamilton held that the new requirements are unconstitutional:

Section 8(b) cuts into the heart of the Fourth Amendment ? privacy in the home. Section 8(b) requires the members of the plaintiff class to consent to the search of their personal computers or internet-capable devices `at any time.? Even if law enforcement officers chose to wait outside the home to demand the right to search a registrant?s portable devices (the statute is silent on the point), personal computers will most often be inside the home. By granting unlimited access to these devices, the Indiana legislation crosses the most fundamental boundary under the Fourth Amendment, and dispenses with the warrant requirement. The ability of the individual to retreat into his home, and there to be free from unreasonable intrusion by the government, stands `at the very core? of the protections granted by the Fourth Amendment.
John Doe v. Prosecutor, supra.

He also found that the statute?s use of ?consent? was invalid because it?s a coerced consent: ?These plaintiffs have rights under the Fourth Amendment. The State may not force them to waive those rights under threat of criminal prosecution for failing or refusing to do so.? John Doe v. Prosecutor, supra. (His opinion is very well-reasoned and detailed and, as such, is 50 pages long, so I can?t do it justice here. If you?re interested, check it out on the court?s website.)

The plaintiffs won, and the new statute can?t be enforced. I don?t know about you, but I?m on Judge Hamilton?s side. But I?m sure the state of Indiana will appeal the decision to the 7th Circuit Court of Appeals.

Full post as published by CYB3RCRIM3 on July 04, 2008 (boomark / email).

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