December 23, 2016 | By Adam Schwartz

EFF to Supreme Court: Strike Social Media Ban for Sex Offenders

Yesterday, EFF and its allies Public Knowledge and the Center for Democracy & Technology filed an amicus brief asking the U.S. Supreme Court to strike down under the First Amendment a North Carolina law that bans “registered sex offenders” (RSOs) from using all Internet social media. This law sweeps far too broadly. Social media are one of the most important communication channels ever created. People banned from social media are greatly handicapped in their ability to participate in the political, religious, and economic life of our nation.

In the past year, EFF advocated for RSOs in three other cases: two about the right to anonymous Internet speech, and the third about location tracking with electronic shackles. EFF does this work because everyone should enjoy digital liberties. And all too often, rights denied to the few are eventually denied to the many.

Access To Social Media

North Carolina banned all of its RSOs from accessing any social media that are commercial and that permit minors to become members. Thus, it is now a crime in that state for an RSO to view anything posted on popular social media platforms such as Facebook, Twitter, and LinkedIn. As written, the exclusion extends far beyond what are commonly considered to be social media, to also bar RSO access to news media and retail websites that allow visitors to create accounts and share information with other visitors.

In Packingham v. North Carolina, an RSO argues that this law violates the First Amendment. In 2015, the North Carolina Supreme Court ruled against him. The U.S. Supreme Court decided to review the case.

EFF's amicus brief argues that North Carolina’s banishment of RSOs from social media violates the First Amendment right to gather and publish information on the Internet. As the Court explained in Reno v. ACLU (1997), the Internet empowers everyone to “become a town crier with a voice that resonates farther than it could from any soapbox.”

In the two decades since that seminal ruling, social media have emerged as the foremost soapbox on the Internet. Last year, a Pew survey found that 65% of U.S. adults use social media, up from 7% in 2005. Grassroots movements from Black Lives Matter to the Tea Party have successfully used social media to achieve political results by educating and mobilizing thousands of supporters. People also use social media to accomplish myriad other critical goals, from practicing their faith to finding employment to seeking medical information.

Our brief was written by Professor David Post, and by Jonathan Sherman, Perry M. Grossman, and Henry Bluestone Smith of Boies, Schiller & Flexner LLP. The U.S. Supreme Court will rule on this case in the first half of 2017.

Anonymous Online Speech

EFF also advocates for the First Amendment right of RSOs (and everyone else) to express themselves anonymously on the Internet. In the words of the U.S. Supreme Court in McIntyre v. Election Commission (1995), anonymous speech “is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.”

In Doe v. Harris, EFF teamed up with the ACLU of California to file a lawsuit challenging parts of Proposition 35. This California law required all RSOs (even those with decades-old misdemeanor convictions unrelated to the Internet) to disclose to the police all of their Internet identifiers and service providers (including usernames and online political discussion groups). The law also allowed police to freely share this sensitive information with the public. In 2013, the federal trial court preliminarily enjoined the law, and in 2014, the Ninth Circuit Court of Appeals affirmed that ruling. In 2016, the California legislature narrowed the statute in a way that will moot this lawsuit when the new law goes into effect in 2017.

We were less successful earlier this year in a case called Illinois v. Minnis. There, EFF joined the ACLU of Illinois to file an amicus brief challenging a similar Illinois statute. It requires RSOs to disclose all of their online addresses and identities, as well as every website they visit, including retail and news sites. The law then permits the government to share this information with the public. Unfortunately, the Illinois Supreme Court upheld the law. Doing so, it rejected the arguments in our brief and the reasoning of the Ninth Circuit in Doe v. Harris.

Electronic Shackles

EFF regularly advocates before judges and legislators to protect our location privacy from unreasonable electronic surveillance by the government, most often to prevent police from secretly turning our cell phones into tracking devices. We argue that the Fourth Amendment and privacy statutes require the government to obtain a probable cause warrant before tracking an individual’s location. This is because, according to the U.S. Supreme Court, digital location tracking “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

Government tracks the movements of unpopular subpopulations by forcing them to wear ankle shackles embedded with GPS devices. These surveillance tools, which one manufacturer calls “prison without walls,” achieve around-the-clock location tracking that is accurate to a few meters. Some states deploy these electronic shackles against court-involved juveniles, as well as the targets of anti-gang injunctions. Most states require RSOs to wear electronic shackles.

In Wisconsin, for example, all RSOs must wear electronic shackles 24/7 for the rest of their lives. This includes RSOs who have successfully completed their sentences and terms of supervised release. In Belleau v. Wall, an RSO challenged this law in federal court, with representation from the ACLU of Wisconsin. In December 2015, EFF filed an amicus brief with the Seventh Circuit Court of Appeals, arguing that this law violated the Fourth Amendment, in light of the severe technological intrusion on location privacy. Unfortunately, while the trial court had struck down the law, the Seventh Circuit reversed, upheld the law, and rejected EFF’s arguments.

Why EFF Does This Work

EFF opposes many kinds of laws that burden the digital liberties of RSOs, for three reasons. First, digital liberties are fundamental human rights. All people should enjoy them.

Second, government often imposes new technological burdens on “the worst of the worst,” and then expands those burdens to other populations. For example, forced DNA extraction began with people convicted of the most violent crimes, and then expanded in many states to people arrested—not even convicted—for a much broader range of offenses, including juveniles and those accused of misdemeanors.

Third, the government has designated 850,000 people as “registered sex offenders.” The ever-expanding list of crimes that trigger lifetime registration is so overbroad that many non-dangerous people are unjustifiably stigmatized as RSOs.

Next Steps

No matter how the U.S. Supreme Court decides Packingham, EFF will continue to advocate for the digital liberty of all—including RSOs. We will oppose laws that expel RSOs from social media, unmask their anonymous Internet communications, and compel them to wear electronic location shackles every moment for the rest of their lives. Even unpopular groups have rights at the electronic frontier. And if the government gets away with taking away their rights, the government might get away with taking away everyone else’s rights, too.


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