Hines, Nichole

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Duke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Due Process Violation?http://webarchive.loc.gov/all/20070607181752/http://www2.law.duke.edu/journals/dltr/iblawg/?p=53[9/27/2016 10:53:07 AM]iBlawg Presented by: Duke Law and TechnologyReviewHome About Contact F.A.Q. StaffNext Article »« Previous ArticleBlocking Former Sex Offendersfrom Online Social Networks: Is this a DueProcess Violation?by Nichole HinesMy previous iBlawg post analyzed whether recent legislation allowing theremoval of sexual predators from social-networking websites such asMySpace.com constituted a violation of sex offenders’ right to free speech.That post also brought up, but declined to analyze, whether such legislationand technology designed to help carry out the removal and blocking of sexualpredators also constitutes a violation of the sex offenders’ due process rights.This iBlawg post will address the due process issue left open in my previouspost.The Supreme Court has only ruled on two cases regarding sex offenderregistries and only one of those cases specifically discussed due process.1 InConn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003), a Connecticut statuteprovided for public disclosure of the state’s sex offender registry.2 Thisincluded posting the information on the Internet.3 By 1996, every state had asimilar law, termed a “Megan’s Law”.4 Plaintiff alleged that he was not adangerous sex offender and therefore, the statute deprived him of a libertyinterest (his reputation and the alteration of his status under the law) becausehe was not afforded notice or a meaningful opportunity to be heard.5 The courtof appeals agreed with Plaintiff and ruled that such disclosure deprivedregistered sex offenders of their liberty interests and therefore was a dueprocess violation because there was no hearing to determine whether the sexoffender was currently dangerous.6 The Supreme Court overruled thedecision.7 CategorieseCommerceCyberCrimeInternationalMedia & CommunicationsPatents & TechnologyHealth & BiotechnologyCopyrights & TrademarksRecent PostsThe Federal Circuit andAdministrative LawPrinciplesBlocking Former SexOffenders from OnlineSocial Networks: Is thisa Due Process Violation?Viacom v. Google: WhoseTube Is It Anyway?Blocking Former SexOffenders from OnlineSocial Networks: Is thisa Violation of FreeSpeech?Upcoming Events at DukeLawSubscribeRSS 2.0 BlogrollThe Trademark BlogTech Law AdvisorLibrary of Congress Web Archives CollectionThis is an archived Web site from the Library of Congresshttp://www2.law.duke.edu/journals/dltr/iblawg/?p=53Archived: 06/07/2007 at 22:17:52Note: External links, streamingaudio/video, forms and searchboxes may not function withinthis web site archive First (06/07/2007)     Previous  #1 of 10  Next     Last (12/07/2007) Ask a Librarian« Back to previous pageDuke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Due Process Violation?http://webarchive.loc.gov/all/20070607181752/http://www2.law.duke.edu/journals/dltr/iblawg/?p=53[9/27/2016 10:53:07 AM]The Court narrowed its ruling by only focusing on whether there was aprocedural due process violation.8 It did not matter whether there was in fact aliberty interest being deprived.9 The application of Connecticut’s Megan’s Lawsimply turned on an offender’s conviction, and no other fact was relevant; noteven whether the former offender was currently dangerous.10 Therefore,unless Plaintiff could show that the substantive rule of law wasunconstitutional, conducting a hearing on a sex offender’s currentdangerousness was a “bootless exercise.”11Even in the wake of Doe, there are two arguable reasons for why sexoffenders are being denied due process rights when banned from social onlinecommunities without any determination of their current dangerousness. First,the scope of Doe is very narrow. The Court ruled that Plaintiff already had ahearing when it was determined that he was a sex offender and that theConnecticut statute required the registration of all convicted sex offenders.12The Court never investigated whether such a statute was in fact constitutionalbecause Plaintiff never brought the question before the Court.13 The Courtalso did not determine if Plaintiff was being deprived of a liberty interest.14Here, it is unlikely that sex offenders can successfully argue that theirreputations are being harmed because online social communities are notposting the offenders’ status onto their websites. However, there may be adeprivation of freedom of expression and freedom of association. Second, inDoe, the online registry was solely for the purpose of public awareness.15Here, third parties are using the registry to block certain individuals fromInternet sites, and such a distinction may change the analysis. For example, inColeman v. Dretke, 409 F.3d 665, 669 (5th Cir. 2005), the court held that theplaintiff was denied a liberty interest without due process when ordered to listhimself in the sex offender registry and participate in mandatory behavioraltherapy without a determination of his sex offender status. The Fifth Circuitstated that this due process inquiry was different than in Doe, because thereonly the sex offender registration was being challenged, as opposed to the sexoffender registration followed up with behavioral modification.16As with all sex offender cases, the arguments are always more difficult whencourts continuously point out that “[s]ex offenders are a serious threat in thisNation.”17 Nevertheless, there are reasons for why there may be a dueprocess violation when social online communities use sex offender registriesto prohibit sex offenders from using their website. Are such exclusions trulyjust when the offender committed his crime ten years ago and is no longerdangerous?______________________________________________1 The other case is Smith v. Doe, 538 U.S. 84, 96-99 (2003) (holding that asex offender registry did not violate the Ex Post Facto clause on the basis thatthe statute was not punitive. The fact that Alaska posted the information on theInternet did not alter the conclusion because Internet access just makes theinformation search more convenient for Alaskan citizens).2 Doe, 538 U.S. at 4.3Patry Copyright BlogNetlawblogStanford Center forInternet and SocietyBlogsBerkeley IntellectualProperty WeblogTech DirtPatently OTTA BlogWilson Sonsini's SiliconMedia Law BlogPromote the ProgressIP News BlogPhositaEric Goldman's Technology& Law BlogBerkman Center forInternet and SocietyBlogSlashdotLawrence Lessig's BlogDuke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Due Process Violation?http://webarchive.loc.gov/all/20070607181752/http://www2.law.duke.edu/journals/dltr/iblawg/?p=53[9/27/2016 10:53:07 AM] Id. at 5.4 Smith, 538 U.S. at 89 (“Megan Kanka was a 7-year-old New Jersey girl whowas sexually assaulted and murdered in 1994 by a neighbor, who unknown tothe victim’s family, had prior convictions for sex offenses against children.”).5 Doe, 538 U.S. at 6.6 Id. at 4.7 Id.8 Id. at 7-8.9 Id. at 7.10 Id.11 Id.12 Id.13 Id. at 8.14 Id. at 7.15 Id. at 5.16 Coleman 409 F.3d at 669.17 Doe 538 U.S. at 4.Nichole Hines is a J.D. Candidate at Duke University School of Law and aStaff Writer for the Duke Law and Technology Review.Posted in eCommerce, Media & Communications :: 4/03/07 ::No Responses to “Blocking Former Sex Offenders from Online SocialNetworks: Is this a Due Process Violation?”You can follow the responses to this entry through the RSS 2.0  feed. You can leave aresponse, or trackback from your own site.Add a Comment Name (required) Mail (will not be published) (required) WebsiteXHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b><blockquote cite=""> <code> <em> <i> <strike> <strong>

Blocking Former Sex Offenders from Online Social Networks: Is this a Due Process Violation?

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Blocking Former Sex Offenders from Online Social Networks: Is this a Due Process Violation?

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