D.Neb.: Sex offender monitoring of use of internet where offender off parole or probation violates Fourth Amendment

Part of a sex offender statute effective January 1, 2010 that provides for warrantless monitoring of internet usage of offenders who have done their time and are off parole likely violates ex Post Facto Clause and Fourth Amendment, so preliminary injunction granted as to that. The state conceded the Fourth Amendment violation. Doe v. State of Nebraska, 2009 U.S. Dist. LEXIS 121104 (D. Neb. December 30, 2009):

Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to … live … as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”

To be clear, like the Attorney General of the United States, I do not equate the SORNA requirement that a registrant report in person (and provide a limited amount of information) as the equivalent of “supervision” within the meaning of Smith v. Doe. See National Guidelines, at 2008 WL 2594934, at *38046 (concluding that SORNA was consistent with Smith v. Doe). See also Pataki, 120 F.3d at 1284-85 (registration provisions of New York’s sex offender registration law imposing duty to register in person every 90 days for minimum of ten years, did not inflict “punishment” within meaning of Ex Post Facto Clause). On the other hand, I do equate an in-person reporting requirement, when coupled with invasive consent to search, electronic monitoring, and Internet prohibition provisos, to be “supervision” within the meaning of Smith v. Doe.

So, here’s the point: It is probable that Plaintiffs will succeed on the merits of their Ex Post Facto Clause claim regarding these two amendments. In evaluating the validity of this conclusion, please observe that Nebraska was unable to give me any comparable legislation that had passed constitutional muster. Instead, Nebraska candidly conceded that the “consent to search” requirement violated the Fourth Amendment. (E.g., Filing 57 at CM/ECF p. 22 (“We begin by acknowledging that the consent to search of all computers or electronic communication devices that is required under LB 97 and LB 285 is likely not legally valid under the requirements of the Fourth Amendment, as applied to individuals no longer on parole, probation or court supervision.”).) That concession was compelled by Judge Hamilton’s thorough and thoughtful opinion in Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana’s legislature had “taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, ‘papers,’ and personal effects.”).