November 13, 2002 10:00 AM PST

The Internet faces a free-speech test

The U.S. Supreme Court on Wednesday will hear challenges to a pair of state laws that require sex offenders to register personal facts in publicly accessible databases, in a legal showdown that could set new rules for access to information in the digital age.

Read more about the debate on online information
The high court will seek to decide whether so-called Megan's laws in Alaska and Connecticut strike the correct balance between shielding a community from criminals and preserving the rights of criminal defendants who have completed their punishments. In addition, some court watchers say the justices may weigh the Internet's role in disseminating public information.

Many legal experts say any ruling in the Megan's law cases is likely to be narrowly tailored toward the issue. Still, privacy and free-speech proponents are closely watching the cases, believing they could offer some guidelines about online court records in general. Among the concerned parties are some media groups, which worry about the adverse effects on online journalism from a ruling saying that the publication of factual information online is somehow unconstitutional.

"It would be the first case where the government said online information is not as protected as information in print," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which filed a brief in the case.

The entree of the Internet into the world of courts has renewed the debate over what constitutes a public record and how accessible such records should be. The Web is forcing courts across the country to deal with the issue of privacy versus accountability, as well as whether certain types of court records warrant more restrictions than others. For example, some organizations have proposed placing more restraints on criminal records and fewer on civil. Others advocate redacting only the most personal identifiers--say, social security, driver's license and credit card numbers--and placing the rest of the information online.

Courts also are grappling with who should have access to information: Should online access be limited only to interested parties or people who can afford to pay?

Privacy experts worry that the Internet could erode a legal theory that such records have been "practically obscure," or hidden from all but the most determined or interested parties because, until now, people have had to physically visit the courthouse to obtain court documents. Now, in some counties and states, anyone with a computer can click their way through pages of embarrassing details from divorce, bankruptcy and other records.

Privacy advocates also fear that the increased dissemination of the records via the Internet not only will embarrass people but also could lead to an increase in identity theft and vigilantism. What's more, many privacy experts argue, storing easily searchable criminal records conflicts with the fundamental principle that once people have paid their dues, they should be able to reintegrate into society.

"It's really hard to do so when your past can come back to haunt you so easily," said Electronic Privacy Information Center lawyer Mikal Condon, who co-authored a friend-of-the-court brief in the case.

In the Megan's law cases specifically, EPIC charges that the government is not only compiling publicly available information and storing it in a database, but also is collecting new, updated personal information--an act they argue violates privacy expectations.

"Although the state has a compelling reason for collecting and making available the information in limited circumstances, Internet dissemination of such information permits the government to make unfettered use of information that would otherwise be effectively unavailable, thus violating the state's duty to safeguard private information from unwarranted disclosure," EPIC wrote in the brief.

"A backlash of privacy"
By contrast, advocates of electronic access to information argue that more online records help citizens to better track their public court system's inner workings.

Guylyn Cummins, a partner at law firm Gray Cary, said that privacy experts are using the electronic access issue as a springboard to revisit whether some traditionally public records should be available at all.

"What we're seeing now is a backlash of privacy," Cummins said. "I think that's the wrong response."

She said that whether or not information is public shouldn't turn on whether it's in electronic or paper form. "If information is public--and legislators and courts have deemed it's important to make the information public--then why are we drawing a line between how it's disseminated?"

Meanwhile, states and counties are dealing with the issue on a piecemeal basis, with each jurisdiction deciding individually how much information to put online.

"There aren't any trends," said Ari Schwartz, associate director at the Center for Democracy and Technology, which conducted a nationwide study on the issue of online records. "Every state and county is doing something completely different."

For example, Hamilton County, Ohio, officials have given the public virtually unfettered online access to nearly all court records, from divorce proceedings to traffic violations.

On the other hand, some states, including Alabama, make only some records available, and only to people who pay. Some Minnesota courts charge a $31 monthly fee for electronic access to criminal defendant and other records. In Louisiana, some courts charge as much as $250 per year. Many states provide extremely limited access to records, offering only court rules and scheduling information.

Still other courts are hobbled by overworked and underfunded court clerks, unable to put court records online even if they want to.

Several bodies and organizations are hoping to issue guidelines to help counties and states navigate the move to some form of e-courts. Schwartz hopes courts and legislators will start to think about the Web more often in the policy-making process. After all, someday all court records may be electronic.

"Unfortunately, what we're seeing in most cases is people putting together laws with the intent of the information being on paper only," he said.

Safety versus justice?
Megan's laws stem from the 1994 rape and murder of 7-year-old Megan Kanka by a twice-convicted sex offender who lived next door. The incident sparked New Jersey legislators to enact the nation's first sex offender registry law, a measure soon followed by all of the other states, though the measures vary in detail.

In the Alaska case, the justices will decide whether the law violates the U.S. Constitution's ban on ex post facto laws that increase the severity of punishments after the crime was committed.

The issue at the heart of the Connecticut case is whether a government may list people in a sex offender registry without having to show that each person might be a current danger to their community--an alleged due process violation.

Connecticut published details of its sex offender list--a practice followed by perhaps a dozen states--on the Internet in a searchable database. After a federal district court and an appeals court ruled against the state attorney general's office, Connecticut pulled the plug on the Web site.

The Second Circuit Court of Appeals ruled in October 2001 that Connecticut's law "fails to accommodate the constitutional rights of persons formerly convicted of a wide range of sexual offenses who are branded as likely to be currently dangerous offenders irrespective of whether or not they are."

Connecticut's version of Megan's law requires that people convicted--or found not guilty by reason of insanity--of sex-related crimes register with the state for the next 10 years, and the state is required to post that information on the Internet. Anyone who moves to a new address and is subject to the law must register within five days.

The state's "Sex Offender Registry" Internet database was available at the Connecticut state site until the courts shut it down. It was searchable by ZIP code or city name.

The Internet publication was not a central part of appeals court's reasoning. In fact, the judges wrote that "use of the Internet furthers these non-punitive purposes" such as public safety and law enforcement.

The original Megan's Law
Many state laws are modeled on the original Megan's Law, a New Jersey statute, which says anyone convicted of a sex offense must register with the police or go to jail. The law applies "regardless of the date of the commission of the offense or the date of conviction" and says that a sex offender moving to New Jersey from another state has 70 days to register.

Under the law, anyone already living in New Jersey who moves to a new address in the state has 10 days to notify the local police.

Those required to register must give their name, Social Security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary residence, date and place of employment, fingerprints and a description of the crime. In addition, they may be required to supply "evidentiary genetic markers" and "any other information that the Attorney General deems necessary."

The law covers two types of offenses: aggravated sexual assault and similar sex crimes with adults as victims, and crimes that involve a victim under 18 years old or those in which the defendant was convicted or acquitted by reason of insanity.

Anyone who falls into the first category of criminal defendants must check in with local police once a year.

A person in the second category "shall verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General." In practice, according to the rules implementing the law, that can mean showing up at the local police station or state police barracks once every three months.

There's one exception: Anyone required to register can ask a court to halt the practice after 15 years of good behavior. A group of sex offenders forced to register under this law unsuccessfully challenged it in court, with the New Jersey Supreme Court ruling in 1995 that the law was constitutional.

 

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