A federal judge has barred Utah from enforcing a new sex-offender law against a Weber County man whose lawsuit against the state could be a test case that decides whether the law is constitutional.
House Bill 43, which is to go into effect today, requires registered sex offenders to hand over to the Department of Corrections all passwords to online social networking sites, such as MySpace and Facebook.
During a hearing Monday, U.S. District Judge Tena Campbell found that the enforcement of the law against "John Doe" would cause him "irreparable harm" before the court had a chance to review the constitutionality of the state law.
The decision deals a small legal blow to the state. At one point, however, Campbell considered enjoining the state from enforcing the new law altogether instead of just applying her ruling to one sex offender.
The man, who court documents only identify as "John Doe," claims the new law violates his Fourth Amendment right against unlawful search and seizure.
According to a federal suit filed last week, Doe says he was found guilty of carnal knowledge and sodomy on a minor in a military court in 2005 and sentenced to 18 months confinement. In addition to a bad conduct discharge from the Air Force, Doe served 13 months in the military corrections system and was released early for good behavior.
Doe says he has never been under the jurisdiction of the Utah Department of Corrections, which manages Utah's sex-offender registry, but was forced to register as a lifelong sex offender. Specifically, Doe claims the new provision unconstitutionally requires registered offenders to hand over online identifiers and passwords to social networking and blogging sites. He argues that although the state claims the purpose is to "monitor" offenders, the state can also gain access to sites and plant evidence against people.
In court, assistant Utah attorney general Sharel Reber said the information gathered will be kept in a database by the state and will not be made public, but rather used for law enforcement purposes only. Reber said the new law will not violate the Fourth Amendment because law enforcement requesting access to the database must first seek a warrant from a judge. The state already gathers other personal information from offenders, such as home addresses and Social Security numbers.
Campbell said the suit presented "thorny and complex issues," which needed to be fully studied. Because she saw the enforcement of the law against Doe as doing potential "irreparable harm," Campbell ordered that Doe be registered as a sex offender under the old law for now.
Wanting to give time for each side to fully study the constitutional issues, Campbell has asked that Doe's attorneys file a comprehensive legal brief outlining their case by July 21, with the state filing its opposition brief by Aug. 11. A hearing date of Aug. 28 has been set for legal arguments and to determine what further legal action may be needed.
Rep. Jim Bird, R-West Jordan, and sponsor of HB34, said the bill was drafted after a similar law in New Jersey. The states of Florida and Kentucky also have such laws. Bird said he did not know if there had been any legal challenges in those states but was confident Utah's law will stand up to a legal challenge.
"We are very confident that we won't have any problems with this law," Bird said.
University of Utah law professor Paul Cassell, formerly a federal judge, said the case will hinge on whether the new password requirement is viewed as being in the interest of public safety or as punishment against the person.
The U.S. Supreme Court has ruled the state cannot go back and change the terms of a person's punishment. "If this is viewed as punishment, under the Constitution, you cannot impose ex post facto punishment," Cassell said.
It is likely Doe and his attorneys will argue that the requirements under the Utah Sex Offender Registry are punitive against people who have fully paid their debt to society.
Cassell said the state is likely to argue that the registry is in the interest of public safety and that forcing registered offenders to hand over their passwords to online accounts will protect children.
This is the second similar suit this year to challenge the constitutionality of the sex-offender registry. Steven Arthur Briggs, another convicted sex offender, sued the state claiming the registry violates his right to due process by imposing new requirements on offenders without court review. Briggs also argues the registry holds people out to public shame and should be considered punishment beyond an offender's sentence. His case is pending a ruling from the Utah Supreme Court.Campbell ruled that Doe will be allowed to pursue his case without using his real name. Any documents filed with his real name will be filed under seal.
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