Jason wasn’t sure what to do. After an alleged sexting incident in 2012 snowballed into a felony conviction in his southern state, he was forced to register as a sex offender and barred from using a computer or smartphone. Over time, the conditions of his probation were reduced to a patchwork of technology-related restrictions: He was allowed to use email, but he was initially not allowed to send text messages. He could use the internet, but he was not allowed to have a social media account, and all of his time online was monitored by a probation officer.
Since his conviction, Jason has become a leader in nonprofit advocacy around criminal legal system reform, regularly testifying at the state legislature, organizing state lobbying efforts, and winning community engagement awards. Last summer he petitioned the court to have his probation end early, given the growing list of public officials and local leaders who offered their support of his case.
But right now Jason is sitting in prison and will be there until July 2023. And it started with watching a community prayer livestream.
The relationship between sex-offense registries and technology is complicated. While the internet has certainly created new opportunities for sexual harms, the legislative response has often centered on efforts to ban people convicted of any type of sex crime from using technology at all. As the internet is now the de facto venue for public life, it’s been difficult to justify these laws without violating the Constitution and creating a massive class of people unable to survive in modern society.
More broadly speaking, one of the frustrating things about sex-offender registries is that they are ineffective in preventing sexual violence or rape. It is widely accepted among experts that registry laws don’t prevent sex crimes, that people on sex-offender registries are very unlikely to reoffend (something the US Supreme Court got terribly wrong in a consequential case), that around 90 percent of people who commit new sexual assaults aren’t on a registry, and that most sex crimes occur between people who already know each other. Registries are rife with data errors and a surprising number of juveniles.
But, even against this mountain of evidence, registry laws just seem to get more technical and more complex, especially when it comes to what is and is not allowed on the internet.
For instance, many states require people on the registry to report their “internet identifiers” to state authorities. Legislatures reason that “since those on the registry already have to report their physical addresses, why not require them to report their digital ones as well?”
But while everyone knows what a physical address is, state legislatures haven’t done a great job of explaining what constitutes an “internet identifier” in our current technological environment. For example, some state laws require “any designation or monikers used for self-identification in internet communications” (Alabama), while others require only the registration of “all blogs and other internet sites” to which the person on the registry “has uploaded any content or posted any messages or information” (Illinois). Other states simply, but broadly, require the name and URL of “all websites on which the offender is registered using an online identifier” (Utah).
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Is engaging with a chatbot that asks you to enter your name using an “internet identifier” that must be reported? What about registering with a local news website so you can comment on a story? An IP address? The possibilities are nearly infinite, meaning that a registrant must record the identifier they used to engage with a platform or website and report it every time they use the internet. This holds for all sex-offense registrants, not just people who were convicted of an internet-related crime. If they fail to report an internet identifier, they can go to prison.
The expansive, vague nature of these laws matter, especially when it means people can be branded for life. Even those who are strong supporters of sex-offender registration laws should acknowledge the problem of confusing policies: They erode public trust, incarcerate the wrong people, waste governmental resources, and leave the public vulnerable to truly dangerous people.
Before his arrest, Jason worked in IT. As the court sorted out the conditions of his probation, Jason petitioned the court to have access to a computer and internet so he could continue to work.
Court transcripts reveal a disoriented judge and zealous prosecutor puzzling over technology and openly wondering what to make of “Tick Tock” (the state’s spelling), whether cellular-based text messaging should be considered a different mode of communication than internet-based instant messaging, and how things might be different if Jason only used a “dumb phone”—all in an effort to figure out whether Jason should be allowed to use the internet for work while still on probation, and if so, what types of websites should remain off limits. At one point, the flustered prosecutor rattled off a list of websites she took issue with Jason using, including Reddit and Engadget, stumbling over the names of other popular social media platforms, and finally turning to ask the other members of the court for additional ideas to add to her list.
It was reminiscent of going home for Thanksgiving and helping your parents set up their smart TV, blended with a Kafkaesque nightmare of the highest stakes.
This is when the court eventually agreed to let Jason have internet access but prohibited social media accounts and web-based instant messaging. All of Jason’s devices would be monitored by RemoteCOM, a third-party service that captures regular screenshots and shares them directly with his probation officer.
But then, in July 2021, Jason was charged with violating probation for accessing social media—for watching a livestream of a community prayer event. This development reflects how the internet has changed in just the past few years. While Jason did not create any social media accounts, he accidentally watched videos that appeared in internet searches but were technically hosted on social media sites (in this case, Facebook Live).
A screenshot was also submitted showing that Jason used Google Voice, which sparked a debate over whether that should count as “internet-based communication.” Questions kept arising. Are dating websites social media? Can he use LinkedIn for his business page or not?
In addition, his probation terms barred him from “wiping” anything from his computer. Jason regularly used his Google Chrome browser in incognito mode to avoid internet tracking cookies, knowing that RemoteCOM continued to monitor all of his internet activity and didn’t require access to his browsing history. The prosecutor, however, found this suspicious. Reading aloud from a RemoteCOM screenshot, the prosecutor recited to the judge the ominous-sounding front matter on the incognito browser homepage: “now you can browse privately”—ignoring that the text itself was captured by RemoteCOM. When Jason’s defense attorney objected, the judge responded that the text “speaks for itself.”
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For hundreds of pages of transcripts, the debate continued. The sheer number of questions raised essentially became the evidence that Jason violated his probation. He was sent to prison.
Registry-based technology bans have faced a flurry of legal challenges. A few years ago, the Supreme Court finally ruled in Packingham v. North Carolina that a state cannot outright ban a person on the registry from using social media platforms, because doing so violates free speech. In this case, Packingham was prosecuted for violating registration requirements after posting a celebratory message on Facebook after leaving traffic court. He wrote: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent …… Praise be to GOD, WOW! Thanks JESUS!”
This seemingly innocuous post was a violation of a state law that put a lifetime ban on a registrant’s access to any social networking website that also allows minors to make accounts. The court found that the law too broadly restricted a person’s access to the internet, even viewed in light of the state’s compelling interest to protect children from abusers. “With one broad stroke,” warned the court, “North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
Yet, states have continued to pile on technology-related restrictions for the nearly 1 million people put on state registries, many of whom arguably pose no public safety risk. This means that even though the Supreme Court has technically recognized the right of people on registries to use social media, states can still pass laws that send someone to prison for failing to tell their probation officer they updated their Facebook cover photo.
There are a few reasons we should ask our legislators to develop more commonsense laws around people convicted of sex crimes.
First, vague laws can easily lead to differential treatment, exacerbating discrimination and giving immense power to probation officers and prosecutors who may not understand technology. This confusion leads to hard-to-predict discretion and uneven enforcement. Decades of research on procedural justice show that unfair or unclear laws erode public trust in the legal system and can actually contribute to more lawbreaking.
Not only is this deeply unfair, it also means law enforcement could miss something important. When we send otherwise law-abiding people to prison, we also risk creating more criminogenic conditions by cutting people off from mental health treatment, employment, and family support.
Second, registry laws that focus narrowly on internet use introduce a broad set of administrative burdens on the government. By forcing probation officers to spend their time reviewing RemoteCOM, they have less time to work on investigating or preventing violent crime.
What purpose is served when police officers search the vast wilderness of the internet to catch registrants who fail to report an update to their Twitter account to their probation officer? Who should be in charge of recording the IP addresses of every registrant? Should we be so focused on petty, technology-based violations rather than trying to prevent new technology-facilitated crimes? Our current scheme directs resources away from crime-prevention efforts, like teaching kids how to use the internet safely, training parents on how to monitor their children’s internet use, or following up on tips from the community.
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But perhaps most important, vague laws—in general—are dangerous to our constitutional rights. Vague laws fail to adequately warn registrants what types of behavior are or are not allowed. As SCOTUS warned in 1972, “vague laws may trap the innocent by not providing fair warning.” A failure to provide explicit standards to criminal legal system officials can lead to “arbitrary and discriminatory application” and a slippery slope of creating even more vague laws, piling on to an already confusing legal doctrine.
Even amidst a decade of legal challenges (and often victories for people on registries), state legislators continue to tinker with technology bans in registry laws. In late January, New York state reached a settlement that found unconstitutional its extremely broad Electronic Securing and Targeting of Online Predators (e-STOP) law. Michigan registry laws have been found to be unconstitutional in three consecutive cases, but the state’s brand-new policy allows the state to post internet identifiers of registrants on a public website and has already led to a fourth lawsuit.
Future laws that restrict technology use will also likely face legal challenges. The internet will change faster than legislation, rendering new laws potentially invalid the minute they are signed. It’s time to stop wasting our resources on ineffective technology bans and consider the utility of our current registry laws.
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