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August 16, 2009

Is Illinois's new internet ban for sex offenders constitutional?

As detailed in this Chicago Tribune report from last week, Illinois " Gov. Pat Quinn signed new laws Tuesday designed to limit sex offenders' use of technology as a way to find more victims" by making it "a felony for registered sex offenders to use social networking sites."  This CBS News discussion of the new law raises some interesting questions about its potential reach:

"If the predator is supposed to be a registered sex offender, they should keep their Internet distance as well as their physical distance," said sponsor Bill Brady, a Republican state senator, according to the Chicago Tribune. "The object is to protect innocent individuals on the Internet from sex offenders."   If that were its effect, this would be a laudable piece of legislation. But in reality, the state law is written so broadly it would effectively prohibit registered sex offenders from using the Internet.

It says "social networking websites" are off-limits, and defines those as "an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members," or photographs, or any other personal information. Offenders must "refrain from accessing or using" such Web sites.

Unfortunately, the Illinois state legislature didn't seem to recognize that many popular Web sites -- perhaps even the majority of the large ones -- fall into those categories.  Google.com features user profiles, including name, photos and personal information.  So do Yahoo.com, Amazon.com, geek site Slashdot.org, and aggregator site Digg.com.

Sites like Hulu.com, Netflix, and Pandora do too, as do TV.com, MP3.com, and CNET.com. This overly broad scope makes the law vulnerable to a First Amendment challenge. (Those last three are our sister sites and are owned by CBSNews.com publisher CBS Interactive.)

(It is surely coincidence that Bill Brady is a candidate for governor of Illinois, whose campaign biography says: "He fought for and passed legislation to protect children from sexual predators.")

Now, perhaps Brady's intent truly was to ban sex offenders from the Internet, although if that's true you wouldn't know it from the former developer and realtor's public statements on the topic.  Nor was it probably apparent to his colleagues in the state capitol, where the legislation was unanimously approved by both chambers -- or to Gov. Pat Quinn, who signed it into law this week.
Like it or not, using Google, Yahoo, TV.com, and so on is part of modern life, and it's reasonable to hope that even sex offenders could be reintegrated into society rather than cordoned off from it and therefore more likely to relapse.  One Justice Department release says that 5.3 percent of male sex offenders were rearrested within three years after their release from state prison.

Brady's legislation also does not distinguish between violent criminals who have served prison time for rape -- and adults who are registered sex offenders because of youthful hijinks.

It seem that this new law is ripe for constitutional challenge under any number of theories.  The law apparently goes into effect January 1, 2010, but I suspect there will be litigation over its terms getting started sooner.

August 16, 2009 at 10:54 PM | Permalink

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Comments

This is yet another media piece that fails to specify that this law applies only to those on supervised release. Again, another overuse of the term: sex offender. Why can't the headline read: "Is Illinois's new internet ban for sex offenders [on parole/probation] constitutional?"

Posted by: Me | Aug 17, 2009 2:39:40 AM

http://sexoffenderissues.blogspot.com/search/label/.Illinois

And they do not tell you, but this is ONLY for those on probation and/or parole, and doesn't affect those who are off supervision.

Fear mongering politicians, exploiting fear to garner votes, as usual!

Posted by: Sex Offender Issues | Aug 17, 2009 9:20:33 AM

And even if in the SR case it is still found to be constitutionally unsound it is susceptible to a narrowing construction that would likely be fine. That construction would be to make the portions of sites like google that act as social media off-limits, but the main search engine would be fine.

A more interesting question would be blogs. Some of them have user profiles some don't, and you may not know going in.

An even more restrictive narrowing construction would be to limit the prohibition to actual social networking sites, possibly through emphasis of the user profile requirement. For many of the problem sites you bring up, profiles are only incidental, but for the social network sites those profiles are the entire point.

Posted by: Soronel Haetir | Aug 17, 2009 9:32:08 AM

I find it humorous that some of these people have actually backed up this law. Probably those who would claim to be conservatives. Don't think they realize that legislative law is the back door to usurping the bill of rights. Ask them how they feel about registering their guns and you'll get a different answer. The problem for them is this, you begin registering everything, and eventually all rights are gone... even for the self-proclaimed debutantes and their fear-mongering political husbands. All this is doing is trying to get one man elected for office while stripping your rights away...

Posted by: Bri | Aug 25, 2009 9:10:05 PM

I have been a study and researcher of sex offender management policy, and time again I am perplexed by the overlooking ideology that occurs with the regards to the statistics that are used when observing sex offender recidivism. Particularly when the author of these stats is the justice department.....5.3 percent of sex offenders were rearrested within 3 years of there parole or release from prison.... is this an arrest for a new sexually based crime or a different crime all together. Better yet, what of the remaining 94.7 percent that WERE NOT subject to rearrest. I strongly hold that the legislative powers, nationwide, are not considering all the variables when viewing statistics and are passing laws by shooting from the hip.

Posted by: jrmiller | Sep 14, 2009 5:27:31 PM

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