Hines, Nichole

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Blocking Former Sex Offenders from Online Social Networks: Is this a Violation of Free Speech?

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Duke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Violation of Free Speech?http://webarchive.loc.gov/all/20070607181723/http://www2.law.duke.edu/journals/dltr/iblawg/?p=49[9/27/2016 11:04:44 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 aViolation of Free Speech?by Nichole HinesSocial networking website MySpace.com announced in early December that itwas developing technologies to help block convicted sex offenders from usingits website. MySpace to “Block Sex Offenders,” BBC NEWS, Dec. 7, 2006.These technologies are MySpace’s most recent response to widespreadcomplaints regarding predatory sexual offenders presenting a danger toteenager users of the website. Id. In addition to MySpace’s effort to removeformer sex offenders from its social networking site, in late January 2007,Congressmen Charles E. Schumer and John McCain introduced a billdesigned to provide computer network operators, such as MySpace, theinformation and ability to remove sexual predators from their websites.Congress Targeting Online Sex Offenders, CNNMONEY.COM, Jan. 31, 2007.The proposed legislation and MySpace’s efforts to ban sexual offenders fromits website indicate the growing concern that teenagers are physically meetingup with people that they meet online through MySpace, exposing themselvesto potentially dangerous situations. According to Sen. Charles Schumer, D-N.Y., “Lately, online predation is the method of choice for too many sexualpredators. We have to plug the online loophole.” Congress Mulls LegislationRequiring Sex Offenders to Register Online Information, FOXNEWS.COM, Jan. 30,2007. However, these recent efforts to block sex offenders from onlinenetworking communities present questions about whether such actions violatea former sex offender’s freedom of speech, due process rights, or both.The new technology created by MySpace, with assistance from Sentinel TechHolding Corp., is MySpace’s greatest effort to protect its teenage users.MySpace Tool to Help Block Sex Offenders, USA TODAY, Dec. 5, 2006. The 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 BlogrollPatently OPhositaLibrary of Congress Web Archives CollectionThis is an archived Web site from the Library of Congresshttp://www2.law.duke.edu/journals/dltr/iblawg/?p=49Archived: 06/07/2007 at 22:17:23Note: External links, streamingaudio/video, forms and searchboxes may not function withinthis web site archive First (06/07/2007)     Previous  #1 of 28  Next     Last (08/05/2009) 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 Violation of Free Speech?http://webarchive.loc.gov/all/20070607181723/http://www2.law.duke.edu/journals/dltr/iblawg/?p=49[9/27/2016 11:04:44 AM]program will utilize a database comprised of sex-offender registries from 46states and will include the names and physical descriptions of convicted sexoffenders in the United States. MySpace to “Block Sex Offenders,” supra.MySpace’s automated system will search for matches between the databaseand MySpace user profiles. Congress Targeting Online Sex Offenders, supra.Any MySpace profiles that match with a sex offender description will bedeleted. Id. The problem is that a sex offender could easily create a profile thatdoes not match any description in the sex offender database. For this reason,the proposed legislation is a necessary tool to enhance MySpace’s effortsbecause the legislation would make it illegal for sexual predators to providefalse e-mail accounts to social-networking websites.Under the proposed bill, registered sex offenders would be required to givetheir e-mail addresses to their probation or parole officers. Senators Proposeto Track Sex Offenders, ABCNEWS, Dec. 7, 2006. It would be a parole violationfor any offender to use an unregistered e-mail address and could result in areturn to prison. Id. Additionally, “[a]dults who misrepresent their age to aminor with the intent of sexually abusing a child could be prosecuted andsentenced to up to 20 years in prison.” Lawmakers Take Aim at OnlinePredators, ABCNEWS, Jan. 30, 2007. The downside of the new law is that it maybe difficult to enforce because a convicted sex offender “could easily use acomputer at an Internet cafe to create an anonymous e-mail account and useit to register on a social networking site for example—but the bill would makedoing so a crime.” Congress Targeting Online Sex Offenders, supra.Therefore, MySpace’s new technology and the proposed legislation will workin tandem. Although the initiative is certainly laudable, it raises two seriousconstitutional questions. First, is this a violation of the freedom of speech?Second, is this a due process violation? This post will only briefly investigatethe former question, but a later post will research the validity of a potential dueprocess claim.The basis for asking if the proposed legislation and MySpace’s actions are aviolation of the First Amendment stems from the Supreme Court case JohnAshcroft v. Free Speech Coalition. 535 U.S. 234 (2002). In that case,defendants argued that the Child Pornography Act of 1996 (CPAA), whichmade virtual child pornography (sexually explicit images depicting children butnot actually produced with real children) illegal, was a violation of the FirstAmendment. Id. at 239. Freedom of speech “bars the government fromdictating what we see or read or speak or hear.” Id. at 245. However, there arelimitations, “it does not embrace certain categories of speech, includingdefamation, incitement, obscenity, and pornography produced with realchildren.” Id. at 245-46. Therefore, the only way the CPAA could have beenvalid was if the Court ruled that virtual pornographic images were anothercategory of unprotected speech. Id. at 246. The Supreme Court declined tomake this conclusion, holding that unprotected speech must be a work that“taken as a whole . . . is patently offensive in light of community standards”and “pictures of what appear to be 17- year-olds engaging in sexually explicitactivity” does not necessarily offend community standards. Id.In light of Free Speech Coalition, it appears that Congress would have tomake a solid argument that all written works from a former sex offender to ateenager are patently offensive in light of community standards and isBerkeley IntellectualProperty WeblogTTA BlogEric Goldman's Technology& Law BlogWilson Sonsini's SiliconMedia Law BlogPromote the ProgressNetlawblogTech Law AdvisorStanford Center forInternet and SocietyBlogsPatry Copyright BlogThe Trademark BlogSlashdotIP News BlogLawrence Lessig's BlogTech DirtBerkman Center forInternet and SocietyBlogDuke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Violation of Free Speech?http://webarchive.loc.gov/all/20070607181723/http://www2.law.duke.edu/journals/dltr/iblawg/?p=49[9/27/2016 11:04:44 AM]therefore unprotected speech. The difficulty with this argument is that itdepends on what the sexual offender is writing on the social networkingwebsite, whether he or she is trying to arrange a meeting with the teenager,and whether the former sex offender is still a danger to the community. If thecommunity would not find all written messages from a former sex offender to ateenager patently offensive, then MySpace’s technology and the proposedlegislation may actually be a violation of the First Amendment because theywould prohibit some protected speech.In response, MySpace and advocates of the legislation will likely make similararguments that the plaintiffs in Free Speech Coalition made. Those plaintiffsargued that the legislation was valid because pedophiles may look at thematerial and “whet their own sexual appetites,” which would encourage themto later engage in illegal conduct. Id. at 253. In response, the Court stated,“Congress may pass valid laws to protect children from abuse.” Id. at 245.However, “[t]he prospect of crime by itself does not justify laws suppressingprotected speech.” Id. Moreover, “[t]he mere tendency of speech to encourageunlawful acts is not a sufficient reason for banning it.” Id. at 253. The Courtfurther stated:The government may not prohibit speech because itincreases the chances an unlawful act will be committed atsome indefinite future time. The government may suppressspeech for advocating the use of force or a violation of lawonly if such advocacy is directed to inciting or producingimminent lawless action and is likely to incite or producesuch action.Id. This notion that the harm must be imminent poses a great obstacle for theconstitutional validity of the proposed legislation and MySpace’s newtechnology.The danger that the bill hopes to address does not appear to include animminent lawless action likely to occur by a former sex offender. A sexualpredator must actually convince a teenager to meet up with him or her at somelater point. This means that the new MySpace technology and the proposedlegislation are designed to prevent teenagers from physically meeting a sexualoffender offline at some later time, making the danger less than imminent.Moreover, the speech that is in question is not harmful in itself; it is the laterpotentially unlawful actions that are potentially dangerous, indicating thelegislation may be overly broad. The only way such speech can bedifferentiated from the speech in Free Speech Coalition is if a distinction ismade between speech produced by non-former sex offenders and speechproduced by sex offenders. If made, this distinction raises the question ofwhether this different treatment violates a sex offender’s right to due process.Is it really just to ban all sex offenders from an online community without anydetermination of whether that person is still a danger to the community?Whatever the answer may be, it seems that to ban all former sex offendersfrom MySpace and then to make it a crime for sex offenders to violate such arule presents a serious First Amendment issue.Duke Law and Technology Review - iBlawg » Blog Archive » Blocking Former Sex Offenders from Online Social Networks: Is this a Violation of Free Speech?http://webarchive.loc.gov/all/20070607181723/http://www2.law.duke.edu/journals/dltr/iblawg/?p=49[9/27/2016 11:04:44 AM]Nichole Hines is a J.D. Candidate at Duke University School of Law.Posted in eCommerce, Media & Communications :: 2/26/07 ::2 Responses to “Blocking Former Sex Offenders from Online SocialNetworks: Is this a Violation of Free Speech?”You can follow the responses to this entry through the RSS 2.0  feed. You can leave aresponse, or trackback from your own site.DigiMan :: 3/07/07 at 4:16 pmI have posted your article on my webblog.I hope you dont mind that I did it? ;)Duke Law and Technology Review - iBlawg » Blog Archive » BlockingFormer Sex Offenders from Online Social Networks: Is this a DueProcess Violation? :: 4/03/07 at 6:37 pm[…] My previous iBlawg post analyzed whether recent legislationallowing the removal of sexual predators from social-networkingwebsites such as MySpace.com constituted a violation of sexoffenders’ right to free speech. That post also brought up, butdeclined to analyze, whether such legislation and technologydesigned to help carry out the removal and blocking of sexualpredators also constitutes a violation of the sex offenders’ dueprocess rights. This iBlawg post will address the due process issueleft open in my previous post. […]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>

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Blocking Former Sex Offenders from Online Social Networks: Is this a Violation of Free Speech?

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