By Glenn Gerding
The North Carolina General Assembly believes it is not enough in the effort to protect children to restrict where registered sex offenders can live and go in their communities. Registered sex offenders, even those no longer on probation, are now banned from using the Internet for most purposes, no matter how innocent. It started with the noblest of intentions, to protect children from offenders who stalk or groom children using the Internet. But what the General Assembly passed in 2008 goes much farther. So far in fact it makes you wonder whether the legislators forgot to consult an IT guy or the Constitution about the practical and legal consequences.
North Carolina General Statute section 14-202.5 became effective Dec. 1, 2008, and reads as follows:
- § 14-202.5. Ban use of commercial social networking Web sites by sex offenders
- (a) Offense. – It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.
- (b) For the purposes of this section, a “commercial social networking Web site” is an Internet Web site that meets all of the following requirements:
- Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.
- Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.
- Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.
- Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.
A commercial social networking Web site does not include an Internet Web site that either:
- Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or
- Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.
Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State. Punishment. – A violation of this section is a Class I felony.
Upon a first reading of this section, it might not be apparent just how broad it reaches across the Ethernet. In addition to Internet websites commonly considered to be social networking websites such as MySpace.com and Facebook.com, numerous other websites are also off-limits under section 14-202.5’s definition of commercial social networking websites. Sites such as Google.com, Yahoo.com, MSN.com, Expedia.com, Flickr.com, MedHelp.org, Amazon.com, Youtube.com, BettyCrocker.com, co.Rowan.nc.us, Weblog.com, and NewsObserver.com are all off-limits to registered sex offenders.
Take, for example, BettyCrocker.com. The website offers countless recipes and food preparation suggestions. The website offers cooking tips and special offers from Betty Crocker. But the website also derives revenue from advertising on the website and other sources related to the website. The website allows a user to create a “user profile” that includes personal information such as his name and photograph. The website has numerous message boards and “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.”
In the case of BettyCrocker.com, the information exchanges tend to be about casseroles and Crockpot recipes. Regardless, because the website fits squarely within the definition of a commercial social networking website, it would be off limits to a registered sex offender.
A significant example of a prohibited site is www.Google.com. At first glance you might conclude that because the homepage for Google does not require a login to use the search engine, and the homepage itself does not fit within the parameters of section 14-202.5, the statute does not prohibit accessing Google for its search features. But the statute is not so narrowly tailored. It does not prohibit viewing certain types of sub-webpages of a website. To the contrary, the statute makes it illegal to “access” a commercial social networking website.
Google.com is a commercial social networking website by section 14-202.5. It derives revenue from advertising such as Google Ad Words. It allows users to create personal profiles including their names and other identifying information. It allows users to create e-mail, communicate in chat rooms, and post information on message boards. It facilitates the social introduction of two or more people.
Although such functions might be sub-pages of the main Google.com website, the statute prohibits access to any site if it fits the definition of commercial social networking website. A registered sex offender would therefore be unable to use Google’s e-mail system, maps, search engine, or numerous other functions.
A final example is Amazon.com. Amazon receives revenue from its website. It allows users to create personal profiles with personal information and post comments on message boards. It facilitates the exchange of information between two or more people. Initially you might think Amazon would be exempt under section (c)(2) which exempts certain types of commercial websites. But a close reading of section (c)(2) shows that only those websites are exempt that facilitate commercial transactions between members or visitors. Amazon’s primary purpose is to facilitate commercial transactions between Amazon and its visitors, not between users of the websites and other users.
Section 14-202.5 limits access to websites, but does not restrict its reach to the use of desktop or laptop computers. Therefore cell phones that can access the Internet would be forbidden. Take for example the Motorola Droid cell phone. The Droid runs on the Google Android operating system. If a phone user has a data plan, his phone accesses the Internet, including Google’s Internet servers, whenever his phone is turned on. The user’s Droid can access Facebook to download the user’s contacts’ Facebook pictures and “status.” The phone can also provide access to Google’s maps and driving directions, just as a stand-alone Global Positioning System (GPS). Does a registered sex offender risk prosecution under section 14-202.5 if he uses his Droid to get directions to his local sheriff’s office in order to register?
As you can see, the General Assembly failed to consider the practical problems associated with defining a “commercial social networking website.” Practical problems aside, the statute raises significant constitutional concerns. At the top of the list are that the statute is overbroad and vague. The statute here is overbroad because it lacks an intent element and sweeps within its regulation otherwise constitutionally protected conduct.
Section 14-202.5 does not require the State to prove any nefarious intent. There is no requirement that the State show a defendant accessed the social networking website intending to stalk or groom a child, or to arrange a meeting with a child for sexual activity. Instead, the State only has to prove access. It doesn’t matter that the registered sex offender used Facebook or G-mail to communicate with his mother about holiday plans. He’s still guilty of a Class I felony.
In a similar overbreadth challenge, the North Carolina Court of Appeals recently held Winston-Salem City Ordinance §38-29 (b), which prohibited loitering for the purpose of drug-related activity, unconstitutionally overbroad and vague. State v. Mello, 684 S.E.2d 477 (N.C. Ct. App. 2009). The ordinance made it unlawful for “any person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act.” The ordinance listed seven examples of the “circumstances” purporting to “manifest the purpose” of engaging in drug activity.
In holding the ordinance unconstitutionally overbroad, the court pointed out the ordinance’s failure to require proof of intent to violate a drug law. The court found language imposing liability for conduct “manifesting” such a purpose was not sufficient. It distinguished State v. Evans, 73 N.C. App. 214 (1985), which upheld the constitutionality of a statute prohibiting loitering for the purpose of engaging in a prostitution offense, because the loitering for prostitution statute included an element of criminal intent.
In Evans, the court had “reasoned that, although some of the acts encompassed in the loitering statute were constitutionally permissible (i.e., repeatedly attempting to engage passersby in conversation, repeatedly stopping vehicles), the statute ‘required proof of specific criminal intent, the missing element in unconstitutional ‘status’ offenses such as simple loitering.’ “ Mello, 684 S.E.2d at 480. In Mello the court stated that “[b]ecause the [Winston-Salem] Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct.” Mello, 684 S.E.2d at 480-81.
Section 14-202.5 is the modern Internet version of an anti-loitering statute. It forbids a registered sex offender from simply “being” in certain cyber places (social networking websites) without requiring proof of any specific criminal intent that he was there for the purpose of communicating with or committing an offense against a minor. As the Court of Appeals stated in Evans, “[m]ere presence in a public place cannot constitute a crime.” Evans, 73 N.C. App. at 217, 326 S.E.2d at 306. Likewise, mere presence in a public chat room or online on a social networking website cannot constitute a crime.
Like the ordinance in Mello, section 14-202.5 includes no requirement of criminal intent or purpose. In an attempt to prevent communications between a sex offender and minor and to prevent a sex offender from finding a victim, the statute criminalizes constitutionally permissible conduct. Section 14-202.5 “deters a substantial amount of constitutionally protected conduct” (such as free speech and the right of assembly) “while purporting to criminalize unprotected activities.” State v. Mello, 684 S.E.2d 477, 479-80 (2009).
Section 14-202.5 is also unconstitutionally overbroad because it sweeps within its purview registered sex offenders’ rights to freedom of speech, press, association, religion, and to petition the government for redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution and Sections 12, 13, 14, and 19 of Article I of the North Carolina Constitution.
Section 14-202.5 restricts an individual’s ability to communicate with others, which is without a doubt a violation of the First Amendment’s prohibition of laws which abridge the freedom of speech. Under section 14-202.5 a registered sex offender would not be able to use the e-mail functions of G-Mail, Yahoo! mail, Hotmail, Facebook, or MySpace. A registered sex offender would not be able to use the “instant messaging” functions of Google.com, Yahoo.com, or MSN.com. He also could not use the chat rooms or discussion forums of those sites to communicate. Although section 14-202.5 indicates an Internet service that provides only one discrete communications service would not be considered a “social networking website,” the websites listed above do not provide only one service. They provide multiple services.
First Amendment expressive freedoms have also been held by the United States Supreme Court to include the rights to stroll, wander, loaf, and loiter, with or without any purpose. Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). Here, the use of social Internet websites for the purpose of “web surfing,” “Googling,” “killing time,” researching, looking up a recipe, catching up with an old friend from high school, or just following one’s interests online are the modern equivalent of strolling, wandering, loafing, and loitering. Doing so without any criminal intent or purpose is a protected First
Amendment expressive freedom which is swept within the prohibitions of section 14-202.5.
“Freedom of association is a fundamental right, implicit in the concept of ordered liberty.” Treants Enterprises, 94 N.C. App. at 458 (quoting Thomas S. By Brooks v. Flaherty, 699 F. Supp. 1178, 1203 (W.D.N.C. 1988)). Section 14-202.5 prohibits a registered sex offender from associating with anyone on a social networking website. That could include sharing a recipe on BettyCrocker.com, exchanging information about heart disease on MedHelp.com, or speculating about the University of North Carolina Tar Heels sports teams.
The right to the free exercise of one’s religion is also a fundamental right which is substantially burdened by section 14-202.5. Section 14-202.5 effectively prohibits engaging in religious conduct on numerous websites, including sites such as JesusKlub.com and GodTube.com. A registered sex offender could not view inspirational videos, submit a prayer request, read a devotional, or learn about the Bible on those websites and many others. He could not post on the websites statements of his faith or comment on the faith statements of other believers.
To limit First Amendment protected conduct, a state must demonstrate a “compelling state interest.” N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958); Treants Enterprises, 94 N.C. App. at 459. The state must also employ “means closely drawn to avoid unnecessary abridgment of associational freedoms” in achieving its objectives.” Buckley v. Valeo, 424 U.S. 1 (1976); Treants Enterprises, 94 N.C. App. at 459.
Even though the State has a compelling interest in protecting minors from sexual abuse, section 14-202.5 is not narrowly tailored to avoid unnecessary abridgement of registered sex offenders’ speech, religious, and associational freedoms. To the contrary, the statute applies to all registered sex offenders, regardless of the sex offense they committed and regardless of whether the victim of their offense was a minor or adult. The statute applies to all registered sex offenders, regardless of whether a computer was used to facilitate their crimes. The statute makes no provision for a judicial or even administrative determination of whether a registered sex offender is dangerous, likely to stalk and groom children on the Internet, or is likely to be a recidivist.
As you can see, section 14-202.5 is likely unenforceable because of practical and constitutional problems. The issues described above are just a preview of challenges to come. But until a court rules otherwise, registered sex offenders cannot worship online, chat with their mothers, communicate with the Governor or legislators on Facebook, write an online newspaper, earn an online degree from the University of North Carolina, learn about heart disease, find a recipe for chili, or even check the weather without facing a felony conviction. Certainly that’s not what the General Assembly intended. But that’s what they created. Maybe next time our legislature tries to regulate Internet conduct, they should consult an IT guy and the Constitution.
Glenn Gerding is a partner in the Law Office of Glenn Gerding, in Chapel Hill, and defends clients at trial and on appeal in criminal cases. Prior to starting his own firm, Glenn served as an assistant public defender with the Office of the Public Defender in Orange County. Glenn also served on active duty in the U.S. Navy JAG Corps for six years as a criminal defense attorney at the trial and appellate levels. He still serves in the Navy Reserve as an appellate judge on the Navy-Marine Corps Court of Criminal Appeals and holds the rank of Commander.