Outcasts: the exclusion of sexual offenders from social networking sites.

• Author: McCurdy, Jessica

1. INTRODUCTION

   On December 1, 2008, the North Carolina legislature enacted into law a bill that makes it a Class I felony for registered sex offenders to access any social networking site that allows minors to register. (1) As North Carolina also has a thirty-year sexual offender registration requirement, this law essentially prohibits sex offenders from creating profiles on sites like MySpace or Facebook for up to three decades. (2) Given the increasing importance of social networking sites in daily American life, these restrictions could severely hamper the lives and rehabilitation efforts of sex offenders who completed their jail sentences decades ago. (3) Furthermore, this broad restriction of the First Amendment rights of free speech and association raises significant concerns about the constitutionality of the statute. (4)

   Part I of this Note will lay out the North Carolina statute at issue and compare it to other state statutes that regulate sex offenders' use of social networking sites. Part II will provide an overview on the risks of allowing sex offenders to access social networking sites, as well as the corresponding benefits provided by these sites to the average user. Part HI will discuss the constitutional rights to free association and speech, and explain how past courts have dealt with First Amendment challenges brought by convicted felons. Part IV will detail how federal courts have dealt with internet bans and restrictions on sex offenders in the context of supervisory release conditions. Finally, Part V will apply the courts' analysis in past First Amendment and internet ban cases to show that the North Carolina statute, in its current form, is likely unconstitutional.

2. NORTH CAROLINA STATUTE

   Passed on December 1, 2008, Section 14-202.5 of the North Carolina General Statutes broadly prohibits registered sex offenders from accessing "a commercial social networking Web site where the sex offender knows that the site permits minor children to become members." (5) Under the statute's definition of a social networking site, (6) sex offenders will not be allowed to access sites such as MySpace and Facebook while they are registered; this period could last up to three decades. (7) The statute also makes violation of this law a Class I felony, which can result in up to a year in jail. (8)

   The North Carolina law does not restrict itself to sex offenders who used computers in their crimes or who are at a particularly high risk for recidivism. (9) Instead, the prohibition applies to every registered sex offender in the state of North Carolina. (10) By contrast, New York and Texas both have statutes that achieve the same purpose without violating constitutional rights. (11) New York's Electronic Security and Targeting of Online Predators Act (E-STOP) and Section 508.1861 of the Texas Government Code include limiting language that requires only high-risk sex offenders or those who have used computers in the commission of their crimes to provide their online identifiers and refrain from accessing social networking sites. (12) In addition, the Texas statute makes exceptions for sex offenders who are at risk of losing their jobs or suffering other undue hardships due to the law. (13) Similar language in the North Carolina statute would have made it less vulnerable to constitutional attacks, while still serving the same purposes.

   In Minnesota, two similar sex offender bills were proposed. The first, H.F. 0130, contained wording similar to North Carolina's statue, requiring all registered sex offenders to refrain from accessing social networking sites. (14) However, this bill failed to clear the House committee. (15) Shortly thereafter, the Legislature passed a similar bill, H.F. 1301, which prohibited all high-risk sex offenders from accessing social networking sites. (16) The failure of the first bill to include limiting language may have been the reason for its lack of success.

   The rising number of new state laws restricting sex offenders from accessing social networking sites is evidence of the public's increasing concern with sex offenders' access to sites frequented by children. Some even believe that social networking sites are essentially "billboard[s] for sexual predators." (17) But are these concerns valid? The next section will discuss this interplay between sex offenders and social networking sites, and whether statistics support the public's fear.

3. SEX OFFENDERS AND SOCIAL NETWORKING SITES

   The North Carolina statute was enacted in response to concerns about sexual predators contacting minors through social networking sites, "[the] child predators' new playground." (18) Since approximately sixty-one percent of children between the ages of thirteen and seventeen have profiles on social networking sites, (19) these sites provide predators with easy access to a large pool of minors with little risk of being caught. (20) Social networking sites are also attractive to sexual predators because they offer "one stop shopping" where "they can shop by catalogue" due to the abundance of pictures and other information offered in children's profiles. (21) Laws like the North Carolina statute attempt to "take [sexual predators] out of an environment where they have an opportunity to be predators." (22)

   Public outcry about this issue has increased because of cases involving the sexual assault or murder of children who met their predators through social networking sites. (23) In 2007, North Carolina's Attorney General, Roy Cooper, said that law enforcement had identified over 200 cases nationwide of children "lured out of their home by predators they met on MySpace." (24) As MySpace and Facebook are the two largest networks, with user bases of over seventy million people, legislatures have targeted their efforts towards these two companies and encouraged them to delete profiles of known sexual offenders. (25) In response, both MySpace and Facebook have taken steps to try to ensure the safety of minors on their sites. (26)

   MySpace, in particular, has taken substantive steps to eradicate sexual predators from its membership database. In February of 2009, MySpace released a statement that declared it had deleted the profiles of 90,000 offenders, using a self-created database to identify the sexual predators. (27) MySpace has also agreed to automatically set the profiles of users under eighteen to private and to create a special high-school section for minors. (28) In comparison, Facebook has only agreed to set up an abuse reporting system and to investigate complaints within twenty-four hours, although other measures are currently being investigated. (29)

   Studies have found that one in five children who use the internet have been sexually solicited, but these statistics can be misleading. (30) A recent study by Harvard University found that those solicitations are primarily from other teens, not adults. (31) In addition, another study found that of the fifteen percent of children who reported having been solicited online, only one-fourth were using social networking sites at the time of the solicitation. (32) These statistics seem to indicate that while social networking sites are being used by sexual predators, they are not the sole or even main means of gaining access to minors.

   These statistics raise doubts as to whether legislatures are justified in banning sexual offenders from social networking sites. This decision is particularly significant considering that these sites also provide many benefits to their users that are not otherwise easily obtainable. Social networking sites provide ways to stay in touch with friends and family and create a new kind of social support network, which is very valuable to recently released felons who are struggling to reconnect and to find a place in their community. (33) For prisoners who have trouble finding employment, social networking sites can serve job searching and networking needs, allowing them to find legal ways of supporting themselves. (34) With these kinds of benefits, sexual offenders should only be banned from social networking sites if there is a justifiable rationale, such as an actual connection between their offense and social networking sites.

4. Tim FIRST AMENDMENT

   The primary challenge sex offenders can raise against the North Carolina statute is that it violates their First Amendment rights of free speech and association. (35) Barring sex offenders from social networking sites prevents offenders from connecting and communicating with persons they would otherwise be able to communicate with. Several courts have ruled, however, that the First Amendment rights of convicted felons can be lawfully restrained under certain conditions as long as there is a "reasonable relationship between the restriction and the need to protect the public from the type of behavior for which the felon was convicted." (36)

   In United States v. Turner, a woman was arrested for obstruction after she scaled the wall...