UT- Sex-registry law on hold

7-1-2008 Utah:

Sex offender exempted from new rule to reveal online passwords

A federal judge has barred Utah from enforcing a new sex-offender law against a Weber County man whose lawsuit against the state could be a test case that decides whether the law is constitutional.

House Bill 43, which is to go into effect today, requires registered sex offenders to hand over to the Department of Corrections all passwords to online social networking sites, such as MySpace and Facebook.

During a hearing Monday, U.S. District Judge Tena Campbell found that the enforcement of the law against "John Doe" would cause him "irreparable harm" before the court had a chance to review the constitutionality of the state law.

The decision deals a small legal blow to the state. At one point, however, Campbell considered enjoining the state from enforcing the new law altogether instead of just applying her ruling to one sex offender.

The man, who court documents only identify as "John Doe," claims the new law violates his Fourth Amendment right against unlawful search and seizure.

According to a federal suit filed last week, Doe says he was found guilty of carnal knowledge and sodomy on a minor in a military court in 2005 and sentenced to 18 months confinement. In addition to a bad conduct discharge from the Air Force, Doe served 13 months in the military corrections system and was released early for good behavior.

Doe says he has never been under the jurisdiction of the Utah Department of Corrections, which manages Utah's sex-offender registry, but was forced to register as a lifelong sex offender. Specifically, Doe claims the new provision unconstitutionally requires registered offenders to hand over online identifiers and passwords to social networking and blogging sites. He argues that although the state claims the purpose is to "monitor" offenders, the state can also gain access to sites and plant evidence against people.

In court, assistant Utah attorney general Sharel Reber said the information gathered will be kept in a database by the state and will not be made public, but rather used for law enforcement purposes only. Reber said the new law will not violate the Fourth Amendment because law enforcement requesting access to the database must first seek a warrant from a judge. The state already gathers other personal information from offenders, such as home addresses and Social Security numbers.

-This doesn't make sense, why should RSOs TURN OVER INFORMATION FIRST if the state has to get a warrant anyway, someone isn't truthful here, or- this is one crafty egregious law to get anything (evidence) that can be construed and used as a basis for the warrant.

Campbell said the suit presented "thorny and complex issues," which needed to be fully studied. Because she saw the enforcement of the law against Doe as doing potential "irreparable harm," Campbell ordered that Doe be registered as a sex offender under the old law for now.

Wanting to give time for each side to fully study the constitutional issues, Campbell has asked that Doe's attorneys file a comprehensive legal brief outlining their case by July 21, with the state filing its opposition brief by Aug. 11. A hearing date of Aug. 28 has been set for legal arguments and to determine what further legal action may be needed.

Rep. Jim Bird, R-West Jordan, and sponsor of HB34, said the bill was drafted after a similar law in New Jersey. The states of Florida and Kentucky also have such laws. Bird said he did not know if there had been any legal challenges in those states but was confident Utah's law will stand up to a legal challenge.

"We are very confident that we won't have any problems with this law," Bird said.

University of Utah law professor Paul Cassell, formerly a federal judge, said the case will hinge on whether the new password requirement is viewed as being in the interest of public safety or as punishment against the person.

The U.S. Supreme Court has ruled the state cannot go back and change the terms of a person's punishment. "If this is viewed as punishment, under the Constitution, you cannot impose ex post facto punishment," Cassell said.

It is likely Doe and his attorneys will argue that the requirements under the Utah Sex Offender Registry are punitive against people who have fully paid their debt to society.

Cassell said the state is likely to argue that the registry is in the interest of public safety and that forcing registered offenders to hand over their passwords to online accounts will protect children.

-Obviously they haven't yet understood what the 4th amendment means, or cases that flow from it.

This is the second similar suit this year to challenge the constitutionality of the sex-offender registry. Steven Arthur Briggs, another convicted sex offender, sued the state claiming the registry violates his right to due process by imposing new requirements on offenders without court review.

Briggs also argues the registry holds people out to public shame and should be considered punishment beyond an offender's sentence. His case is pending a ruling from the Utah Supreme Court.

Campbell ruled that Doe will be allowed to pursue his case without using his real name. Any documents filed with his real name will be filed under seal. ..News Source.. by Geoffrey Fattah, Deseret News



Man's case may affect fate of Web sex registry

4-3-2008 Utah

A convicted sex offender says the Utah Sex Offender Registry violates his due process rights and if the Utah Supreme Court agrees with him, the state's highest court could strike down the policies governing the registry as unconstitutional.

Supreme Court justices heard arguments Wednesday in a key case that could hold sway over the fate of a registry that the public can use to access information, such as names and addresses, of thousands of convicted sex offenders over the Internet.

The case involves Steven Arthur Briggs, who was convicted of sexually abusing a 9-year-old girl in 1986 and sentenced to serve 15 years in prison. Before being released from prison in 2002, Briggs was told by prison staff that he had to fill out paperwork to register as a sex offender. Despite being told that it was the law, Briggs refused to sign the paperwork, which included telling prison officials where he would be living.

"You'll have to file charges against me, if you can find me," Briggs was quoted in court documents as telling prison officials.

Briggs was later charged with failing to register as a sex offender between 2003 and 2005. The court sentenced Briggs to two consecutive years in jail with all but 61 days credit for time served. Briggs appealed and argues that the Utah Sex Offender Registry stigmatizes all sex offenders as sexual predators, even those who have no history of repeat offenses. People on the registry are then subjected to public ridicule and humiliation, even after they have fully served their sentence and fulfilled their debt to society.

During oral arguments, Briggs' attorney, Lori Seppi, told justices the sex offender registry lumps all sex offenders in the same category and implies that they are all predators. This includes a 17-year-old male convicted of having consensual sex with his 15-year-old girlfriend as well as others with no history of repeat abuse. This information is then published on the Internet without giving the person a chance to argue before a judge that they are not a danger to the community.

Seppi said this violates the Constitution's guaranteed right to due process, adding if these people are going to be held out for public shame, they have a right to challenge it in court and prove that they are not a danger.

Justice Michael Wilkins asked if it's true that the sex offender is a predator, shouldn't he or she be on the registry?

Seppi said she was not arguing that everyone should be taken off and said some people should be on the registry as dangerous, but she argued Utah's laws do not make a distinction.

Chief Justice Christine Durham said she was troubled by this. She noted that children who send cell phone pictures of themselves nude to each other or children charged with acts of lewdness could wind up on the registry alongside adult rapists and violent sex offenders.

Durham suggested that the implication of being on the registry could be far more egregious than the original offense.

Assistant Utah Attorney general Laura Dupaix said all the state does is publish truthful information about sex offenders on the registry, including the crime of which they were convicted. The stigma doesn't come from the state but rather from what the public decides to do with the information, she said.

Dupaix said she would not trust a registered sex offender to be alone with her children, based on their past conduct. The registry gives the community the ability to use the information to make those choices.

Justice Matthew Durrant said he doubted the framers of the Constitution could have anticipated something like the sex offender registry or Internet publication.

Dupaix said the registry is not much different than word circulated about the abuse of a child among colonial townsfolk or of the public humiliation from time spent in the town stockade.

The justices will consider the arguments and issue a written opinion in the coming months. ..News Source. by Geoffrey Fattah, Deseret Morning News