With the goal of keeping tabs on sex offenders, the state of Illinois has veered way off course. Its offender registration statute requires individuals to report every nook and cranny of their online activities to law enforcement—or face jail time. Every Internet site they visit, every online retailer account they create, and every news story comment they post must be reported to police.
EFF and the ACLU of Illinois today asked the Illinois Supreme Court to strike down these onerous requirements of the state’s Sex Offender Registration Act (SORA). The rules violate free speech rights guaranteed to all people—even unpopular people—under the Constitution.
The law was challenged by a Normal, Illinois, man who served 12 months of probation for a misdemeanor offense he committed as a juvenile. Several years later he was arrested and charged with a felony punishable by a year in prison because he failed to report to police a Facebook account to which he uploaded a photo. An Illinois judge last year correctly ruled that the online speech requirements of SORA were overbroad and unconstitutional. He noted that SORA has absolutely no limitation on the type of speech or communication offenders are required to report, and disregards whether the speech being targeted “is in any way related to” the purpose of the statute—which is to deter sexual offenses. The state has appealed the decision.
No one, not even sex offenders, should be forced to report every aspect of his or her online life to law enforcement or be prevented from speaking anonymously on the Internet. Illinois’ law requires reporting of all email addresses, usernames, and websites used, and law enforcement must make that information available to the public. Participating in political discussion groups, banking online or posting a restaurant review has no nexus with police enforcement of sex offender laws. Compelling individuals to turn over this information imposes severe burdens on speech that go way beyond what’s needed for the state to ensure sex offenders don’t offend again. As Illinois Judge Robert Freitag said in his ruling last year (citing a court that struck down a Nebraska law very similar to Illinois’), such online speech reporting rules clearly chill offenders “from engaging in expressive activity that is otherwise perfectly proper.”
EFF and ACLU in 2012 successfully challenged a state ballot measure aimed at combating human trafficking that restricted the legal and constitutionally protected speech of all registered sex offenders in California. We argued that requiring registrants to turn over their online identifiers doesn’t fight trafficking but rather creates a dangerous slippery slope, stoking law enforcement’s desire for accessing more and more personal data online. A district court ruling blocking enforcement of the measure was affirmed by the U.S. Court of Appeals for the Ninth Circuit, and California chose not to appeal the case to the Supreme Court
In the Illinois case, state officials make the argument that no website is “unrelated” to the purpose of its sex offender registration law, and any physical location in which the public may encounter a sex offender is relevant to police investigations of those offenders. By that logic, sex offenders should be required to report their every move—when they take a bus, go to the post office, shop at the grocery store, or attend a meeting. The law doesn’t force offenders to report to police every place they come in contact with the public, nor should it force them to disclose everywhere they go online. That’s not just wrong, it’s unconstitutional.