Subject: A.9859 (Lentol) / S.6875 (Skelos)
(AN ACT to amend the correction law, the penal law, the executive law and the state finance law, in relation to the protection of people who use internet services from convicted sex offenders).
This legislation proposes a broad regulatory scheme that is intended to address the “clear and present danger” posed by “sexual predator[s]” who engage in communication via the internet. The bill’s principal focus is the prevention of sex crimes against minors who access social networking websites. The state has a compelling interest in preventing sex offenses.
This legislation, however, is based upon a misapprehension of the nature and scope of the problem. Moreover, it is unlikely that the proposed regulatory scheme will prevent registered sex offenders from using the internet; it will, however, place significant and constitutionally impermissible burdens on the use of the internet for legitimate and lawful purposes.
The proposed law would authorize the state to provide private internet entities with electronic identifiers – user names, e-mail addresses, access providers – for all registered offenders so that internet entities may bar access to internet services and advise government entities, including law enforcement of “potential . . . threats to public safety.” The legislation would also impose mandatory restrictions upon certain registered sex offenders subject to probation, parole, and conditional discharge or release.
These restrictions prohibit registered sex offenders from using the internet to access pornographic material and commercial social networking websites; to communicate with other individuals or groups for the purpose of promoting sexual relations with persons under the age of eighteen; or to communicate with a person under the age of eighteen when such offenders are over the age of eighteen.
The sponsor’s memorandum accompanying the e-STOP bill states that the legislation would impose “reasonable and appropriate” restrictions on the use of the internet by registered sex offenders. The bill fails to meet even this modest standard. Supreme Court jurisprudence, however, sets a higher bar: a broadly framed regulatory scheme restricting constitutional rights of speech and expression must be narrowly tailored to accomplish a compelling government interest.
The proposed scheme fails this test. What’s more, as a practical matter, it is unlikely that the proposed legislation would deter unlawful activity facilitated by the internet. If barred access by the proposed law, it would be a simple matter to create a new e-mail address or to register with a different service provider. Thus even if it were possible to implement restrictions on internet use in a manner that targeted individuals likely to engage in unlawful activity, the bill would merely drive those individuals outside the sex offender registry.
The problem the legislation seeks to address is poorly understood; as a consequence the proposed regulatory scheme is misguided.
The sponsor’s memorandum accompanying the e-STOP legislation speaks of a grave security risk posed by predators who utilize the internet to perpetrate sex crimes. This assertion is dubious; recent analyses indicate the alleged problem is greatly exaggerated. Those concerned the internet is facilitating the commission of sex crimes often cite a study by the Crimes Against Children Research Center, which found that one in seven children had received sexual solicitations while on-line.
According to the author of the report, however, many of these propositions were “coming from other kids, or just people who are acting weird on line.” A highly regarded “Frontline” documentary produced by the Public Broadcasting System reached a similar conclusion.
The PBS investigation focused on teenagers, 90 percent of whom used the internet daily – including Facebook, MySpace and other social networking sites. The producers of the documentary observed that, "One of the biggest surprises in making this film was the discovery that the threat of online predators is misunderstood and overblown.
The data shows that giving out personal information over the Internet makes absolutely no difference when it comes to a child's vulnerability to predation. . . . Most importantly, all the kids we met, without exception, told us the same thing: They would never dream of meeting someone in person they'd met online." As for children under the age of twelve who are the victims of child abuse, the perpetrator in more than 90 percent of such crimes is a family member or a known friend of the family.
Kidnapping or sexual abuse of a child by a stranger is an extremely rare occurrence. These findings and observations are consistent with the results of on-line sting operations, including sweeps of networking sites. Aggressive policing of the internet has uncovered few instances of registered offenders engaged in criminal conduct. Recidivism rates among registered sex offenders offer further evidence that the risk of harm posed by registered offenders is greatly overstated. Following release from state prison, sex offenders are rarely subject to arrest or conviction for another sex offense.
A recent study by New York’s Division of Probation and Correctional Alternatives found that of 19,827 offenders registered as of March 31, 2005, the re-arrest rate for a new sex crime within one year from the date of first registration was 2 percent; re-arrest within two years was 3 percent; within five years, 6 percent; and within eight years, 8 percent.
With the introduction of this legislation, New York State continues to address the problem of sex offenses by pursuing policies that have the effect of marginalizing or banishing sex offenders. Such policies are counter-productive. Patty Wetterling, whose son’s tragic death prompted the creation of federal and state sex offender registries, has been an outspoken critic of the use of such registries to marginalize and harass sex offenders. "Many states make former offenders register for life, restrict where they live, and make details known to the public.
And yet the evidence suggests these laws do more harm than good. . . . We need better answers. We need to fund prevention programs that stop sexual violence before it happens. We need to look at what can help those released from prison to succeed so that they don’t victimize again – and that probably means housing and jobs and community support."
There is considerable research that identifies the components of a best-practice model for preventing recidivism among sex offenders. That model involves a coordinated program of monitoring, supervision and treatment, based upon a rigorous psychological and behavioral assessment of the individual. The psychology literature reports that such an approach reduces recidivism rates among sex offenders by 40 to 60 percent. With sufficient funding and coordination of resources, reported reductions in recidivism are significantly higher. (This paradigm is addressed in more detail in the closing section of this memorandum.)
The proposed regulatory scheme is flawed by vagueness and overbreadth
When government acts to restrict speech based on the identity of the speaker or the content of his speech, such restrictions must be narrowly tailored in furtherance of a compelling government interest. Courts have recognized that a greater degree of deference may be granted to restrictions upon conditions of probation; however these restrictions must not undermine constitutional rights in ways unrelated to rehabilitation. There is no question that the state has a compelling interest in preventing sex crimes against minors.
However, e-STOP is not tailored to restrict only – or even primarily – speech that may be related to the commission of such crimes. The bill’s stated objective is to prevent former offenders from communicating with minors through social networking sites. But a tremendous amount of communication takes places between adults on social networking sites. Many people visit MySpace, for example, to engage in political speech or advocacy, or to learn about music performances.
However the proposed e-STOP law would subject to criminal suspicion and prosecution former offenders engaged in lawful speech that is directed to an adult audience, without any intent that the speech reach minors. The law would also make criminal the mere act of viewing the MySpace web site, even if done with the intent to learn about social or political events. As a consequence the proposed regulatory scheme fails to pass constitutional muster.
Disclosure of Internet Identifiers
Section Five of e-STOP authorizes the state to disclose the complete database of internet identifiers used by all classes of sex offenders for the purpose of enabling an internet entity “to prescreen or remove sex offenders from its services or, in conformity with state and federal law, advise law enforcement and/or other governmental entities of potential violations of law and/or threats to public safety.”
“Authorized internet entity” is defined as any entity “providing or offering a service over the internet which permits persons less than eighteen years of age to access, meet, congregate or communicate with other users for the purpose of social networking.” This proscription is sweeping in scope. It neither employs an individualized assessment of risk nor distinguishes between a level one offender and a level three offender.
This provision is based upon the assumption that all registered offenders are, to use the bill’s generic term, “predators.” This supposition is demonstrably false; nevertheless this bill will authorize the state to turn over to private internet service providers the personal identifiers of every individual registered under New York’s sex offender registry with the clear intention that such persons shall be barred or restricted from access to the internet.
As a policy matter, this measure drops all pretense of tailoring the provisions of e-STOP to regulating the conduct of individuals who pose a risk of recidivism or for whom the anonymity of the internet may serve as a disinhibitor. Rather, the legislation seeks to bar individuals from a vital communication network based solely upon status – and stigma – related to a past offense.
Mandatory Conditions of Probation or Conditional Discharge
The bill requires courts to prohibit certain sex offenders – as a condition of parole or probation – from using the internet to (1) access pornographic material, (2) access a commercial social networking website, (3) communicate with other individuals or groups for the purpose of promoting sexual relations with persons under the age of eighteen, and (4) communicate with a person under the age of eighteen when such offender is over the age of eighteen. Such court orders would apply to individuals who have been designated as level three sex offenders; convicted of a sex offense that was facilitated by the internet; or convicted of an offense that involved a victim under the age of eighteen.
Each of these prohibitions fails to pass constitutional muster. Even if these prohibitions were constitutionally sound, however, their application to all level three offenders is misguided as a matter or public policy. An individual is designated a level three offender based upon New York’s Risk Assessment Guidelines. These guidelines are seriously flawed.
They were developed prior to scientific research that established clear correlations between the particular characteristics and behaviors of an offender and a propensity to re-offend. What’s more, an evaluator is allowed to override the Guidelines’ objective scoring measures based upon “special circumstances,” but the evaluator is not required to elaborate as to what those circumstances are.
According to one expert in this area, New York designates approximately twice as many level three offenders as would be expected based upon scientific research and the experience of other states. The following analysis addresses three of the aforementioned prohibitions that e-STOP would place on individuals subject to discharge or parole. Access to pornographic materials As a condition of parole or probation the proposed e-STOP legislation would prohibit use of the internet to access pornography.
Unlike terms such as “obscenity” or “child pornography,” however, the term “pornography” does not have a legal definition. Therefore in imposing a prohibition on access to pornographic material, with a criminal sanction for violation of this prohibition, e-STOP runs afoul of the Due Process Clause.
The bill establishes a bar on the use of the internet to obtain pornographic materials that are available to the general population. It is well-documented, however, that one man’s art is another’s pornography; and as a consequence there is no clear distinction under e-STOP between protected expression and expression that may be prohibited.
This will leave individuals subject to the regulatory scheme unable to determine with any certainty what materials they may access without fear of prosecution. This provision further demonstrates an insufficient understanding of the subject matter that is subject to the proposed legislation. For while it is true that for certain sex offenders pornography may act as a disinhibitor, this is not the case for all offenders.
Research demonstrates that there is little if any direct causal link between pornography and offense, let alone recidivism. What’s more, it is well documented that exposure to depictions of consensual sex between adults is an essential conditioning mechanism in some sex offender treatment regimes. Access to Commercial Social Networking Websites The second major restriction bars sex offenders from accessing commercial social networking websites.
This term is defined as any business, organization or other entity operating a website that permits persons less than eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under the age of eighteen may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the pubic or to other users; (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii) communicate with persons over eighteen years of age; provided, however, that, for purposes of this subdivision, a commercial social networking website shall not include a website that permits users to engage in such other activities as are not enumerated herein. This provision would bar a broad range of lawful and legitimate speech and expression.
It is virtually impossible to narrowly cabin within a statutory definition the type of harmful conduct the bill seeks to prevent without catching up protected First Amendment activity. For example, the bill would bar posting information regarding political advocacy or musical events on MySpace – a central information exchange that provides access to music that may be sampled at no cost without violating copyright laws. The proscription would bar individuals from disseminating information intended for adults on a web site to which young persons may have access.
The bill would also prohibit a former offender from passively reviewing or downloading information from a broad range of social networking sites. Moreover, such websites are constantly evolving; the proposed statutory definition will inevitably preclude access to dynamic and evolving internet information hubs. There is no governmental interest in prohibiting lawful communication between and among consenting adults, even via a communication medium often used by minors.
When Congress tried to enact a similarly broad bar to conveying a particular type of speech over a medium of expression—the internet writ large—the Supreme Court unanimously held that such “unnecessarily broad suppression of speech” is barred by the First Amendment. Courts have repeatedly struck down such “prophylactic provisions” that seek to proscribe broad classifications of speech.
Notwithstanding the constitutional infirmities in a regulatory scheme barring access to social networking web sites, public policy considerations also argue against such a broad ban. Keeping former offenders connected to their communities, families, and friends is a critical factor in preventing recidivism.
By reducing opportunities for registered sex offenders to use the internet – a primary tool of learning and communication in the twenty-first century – former offenders are removed from social groups and supportive relationships. This, in turn creates “psychosocial distress” that is directly linked to recidivism.
Communication with Persons Under the Age of Eighteen The e-STOP bill also seeks to prohibit communication by former offenders who are more than eighteen years of age with persons under the age of eighteen. It is in the very nature of the internet and social networking websites that it is not always possible to determine who may have access to another’s communication; yet the proposed legislation creates a presumption that a former sex-offender who accesses a social networking site is engaged in illicit communication with under-age individuals.
Whatever the merits of the legislation’s intent, in practice this broadly crafted prohibition would bar all manner of communication via the internet. Former offenders could not post any content on any social networking site to which a person under eighteen may have access. A former offender could not post a website that featured art or political views, even if it provided no opportunity for a reader to respond, because there is no effective way to filter the ages of individuals who attempt to access web pages.
As a federal judge observed in an opinion that struck down New York’s Communications Decency Act: “Regardless of the aspect of the Internet they are using, Internet users have no way to determine the characteristics of their audience that are salient under the New York Act – age and geographic location.” By imposing a strict prior restraint that is not narrowly tailored to the stated legislative purpose, this provision creates an impermissible restriction on First Amendment rights.
Legislators must reevaluate the state’s approach to the prevention of sex offenses
New York law makers have little empirical information regarding the design and effectiveness of the state’s sex offender registry. Public policy in this area has been driven by alarming news headlines and heated politics. As explained by one expert: "We have twelve years of legislative history now. We have fifty states implementing registries. We have large police departments that have registries. We have state departments that have them. We have [more than] twelve years of history; yet there has not been one definitive study produced saying this reduces the recidivism of sex offenders."
There is, however, a consensus among sex-offender management experts and victim rights advocates as to what would be included in model legislation: the adoption of a more precise and accurate instrument for evaluating an offender’s risk of re-offending; a well-funded and -coordinated program of supervision, monitoring and treatment, based upon individualized assessment; creation of a state Office for the Prevention of Sexual Violence; and the establishment of regional centers for sex offender management.
New York’s legislature should abandon the e-STOP legislation and turn its energies to adopting a comprehensive, empirically based approach to preventing sex crimes.