Decision in Internet Identifier Case
FAC NOTE: I changed the title from “disappointing” decision to just decision. If we look at the lawsuit as a whole, we started by getting an injunction that prevented a MUCH, MUCH worse version of the law. So we didn’t get “internet identifier” registration knocked out entirely, but we did prevent a disaster that would have certainly prevented tens of thousands from even working online…
The order came out in the Internet Identifier challenge, Although the decision is mixed, overall the decision was very disappointing. Essentially, the constitutionality of the Government collecting our internet identifiers (whatever that might be) was upheld.
We have had preliminary discussion with the attorneys, who need to digest the decision and decide among themselves what the best course of action would be, but an appeal is likely imminent.
The order states:
- The summary-judgment motions, ECF Nos. 76 and 77, are granted in part and denied in part.
- It is declared that the requirement in Florida Statutes § 943.0435 for convicted sex offenders to disclose to the Florida Department of Law Enforcement their email addresses and internet identifiers, defined to apply only when a registrant actually uses an identifier to communicate over the internet directly with another user, is constitutional. The Constitution does not prohibit FDLE from making the disclosed information available to law enforcement agencies and officers for official use. The Constitution does not prohibit FDLE from making publicly available a list of email addresses and internet identifiers that have been registered, but the Constitution prohibits FDLE from making publicly available the identity of a registrant associated with any given email address or internet identifier.
- The Commissioner of the Florida Department of Law Enforcement is enjoined from disclosing the identity of a sex-offender registrant associated with any given email address or internet identifier, with this exception: the Commissioner may make this information available to law enforcement agencies and officers for official use only. This injunction does not prohibit FDLE from disclosing information FDLE has obtained from independent sources unrelated to the registrant’s submission of the information to the sex-offender
- This injunction binds the Commissioner and his officers, agents, servants, employees, and attorneys—and others in active concert or participation with any of them—who receive actual notice of this injunction by personal service or otherwise.
A copy of the decision follows:
Discover more from Florida Action Committee
Subscribe to get the latest posts sent to your email.
Basically, ALL sex offender laws WILL CONTINUE to be upheld UNTIL and Only Until a lawsuit/case tackles the 100% crux of the matter: that this modern day slavery scheme was created based on FALSE information/myths.
There is no other way around it. You can chip around the sides all you want, but eventually this needs to be tackled.
Agreed.
First, remove all possible routes for enrichment by one person through the incarceration of another.
Second, provide for the incarcerated. A rational person who ponders it enough will see that very long sentences of incarceration as a tool for punishment is almost only a drag on society, all for primal vengeful gratification. There are many ways to punish without incarcerating, ways that benefit every party more (defendant, victim, and public). It is, however, a good tool to keep dangerous people away from the public at large when there is clear reason to believe they have broken the law and have a propensity to do so within the next couple of years, maximum. While incarcerated, inmates should be afforded every opportunity to enrich themselves in mind, health, spirit, etc., and no opportunity to enrich another individual. Their enrichment will inherently enrich society if/when they are released, particularly if they are given continued rehabilitative support for a transition period. If they break the law again, THEN and only THEN do you deprive them of their rights.
Nobody wants to be a victim to a crime, but when people understand they can be a victim to society when forced into an unforgiving, unfair, subjective legal system, they will be more inclined to reason. The legal system can be torturous, and anyone who has themselves been or had a loved one who has been through it can attest to it being extreme and unforgiving in its outcomes.
We live in a society where the victim has become a role, one so deformed and disturbed that it does nothing but shove the victim into mental grave. Being victimized once by an offense is bad enough, but we force victims to perpetuate the role far longer than is healthy.
To all affected: Please follow this link and story as it shows that deep pockets are needed to fight the registries and “Scarlet letter” of sex offender and sex predator designations.
http://www.foxnews.com/entertainment/2018/09/22/cosby-to-fight-sexually-violent-predator-tag-at-sentencing.html
A. The Constitutional Prohibition Against Ex Post Facto Laws
Article I of the United States Constitution prohibits the states
from passing “any… ex post facto Law.” The Ex Post Facto Clause
proscribes the enactment of any law that “imposes punishment for an
act that was not punishable at the time it was committed or imposes
additional punishment to that then prescribed. A law is considered ex post facto if it satisfies two criteria:
First, the law must be retrospective, that is, “it must apply to events occurring before its enactment.
Second, the law must disadvantage the affected offender.
Additionally, a civil law may violate the Ex Post Facto Clause if a court finds that the law’s effect is punitive. [ This is key to John Doe #4 V Miami Dade County].
B. Punishment or Civil Penalty-the Deciding Factor.
The Court has found that non punitive civil regulations do
not violate the Ex Post Facto Clause even if they impose a hardship.
Consequently, the Court has drawn a distinction between laws that are
punitive and laws that are civil, even though they may be burden-some.
So although the prohibition against creating new “punishments for past acts is stitched into our constitutional fabric, the struggle is to answer the threshold question of what amounts to punishment under the Ex Post Facto clause and that turns on whether a punishment is “criminal” or “civil” in nature.
C. The Two Pronged test:
Under the first prong, courts initially consider whether the legislature clearly intended the statute to be punitive. If so, then the statute is deemed punitive and cannot be applied retroactively.
Under the second prong if the court determines that the legislature
intended the statute to be civil and non-punitive, then the court must
determine whether the effect of the statute is nonetheless punitive only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.
Kennedy v. Mendoza-Martinez
Kennedy v. Mendoza-Martinez was not an Ex Post Facto case. The
question at issue was whether a federal statute stripping United States
citizenship from persons who left or remained outside of the country
to avoid military service imposed punishment for the purpose of
triggering the procedural safeguards guaranteed by the Fifth and Sixth
Amendments.
The Court held that the “punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character. It then articulated seven factors it had considered in previous cases to determine the existence of punishment:
(1) whether the statute imposes an affirmative disability or restraint;
(2) whether the resulting sanction or burden has historically been regarded as punishment;
(3)whether the statute “comes into play only on a finding of scienter;”
(4)whether the statute promotes retribution and deterrence, traditional
aims of punishment;
(5) “whether the behavior to which it applies is already a crime;”
(6) whether the statute is rationally connected to an alternative purpose other than punishment;
(7) whether the statutory sanction or burden appears excessive in relation to the alternative purpose.
Scholars and jurists have criticized Mendoza-Martinez on a number
of grounds. First, given the Ex Post Facto Clause’s role in safeguarding
liberty, critics of the Mendoza-Martinez approach contend that the
framework is too deferential to the legislature. The Ex Post Facto Clause serves two important purposes:
(1)The Framers considered ex post facto laws to be “especially unfair because they deprive citizens of notice of the wrongfulness of behavior, and thus result in unjust deprivations.”
(2) the Framers feared arbitrary and vindictive lawmaking that could target unpopular people.
Considering that the Mendoza-Martinez factors are highly subjective the potential exists that results-oriented judges will manipulate the test to achieve a desired result. As one state court judge eloquently explained:
It should come as little surprise then, in the politically charged and passionate atmosphere surrounding [residency restrictions], that negative findings on these factors are afforded great weight by reviewing courts while affirmative findings are often glossed over and discounted as insignificant in route to upholding the measure’s
constitutionality. It is often a process that can be fairly criticized as little more than judicial sleight of hand.
So the bottom line my friends is the line between what is a non punitive regulatory sanction and what is punishment has been severely blurred by Judicial bias towards legislative intent.
Make no mistake about this, by targeting the Sex offender first sets up precedent to permanently confine through a regulatory Statute called “CIVIL COMMITMENT” any felon the legislator, who in their sole discretion, deems a threat to the public safety.
Without a doubt the lack of clarity between what is punishment and what is remedial is by far the gravest threat to our Civil Liberties as Freeman/women.
Personal liberty has historically been defined as the “Power of locomotion, of changing situation or removing one’s person to whatsoever place one’s own inclination may direct [ Rather than a claim to a “Right to Live where you want ] without imprisonment, restraint or restriction, unless by due process of the law.
So it is unconstitutional to publicly release EMAIL ADDRESSES, but NOT unconstitutional to provide the public with ACTUAL HOME ADDRESSES, cars, WORK ADDRESSES, etc. This is absurd! I’d that’s the constitutional stance, then I think the attorneys should go for the addresses being publicly released as unconstitutional.
The physical address tells people where the registrant is physically located. There’s a difference.
@Married to the Registry has a point, still. Besides, if registrants are such smooth manipulators, are they not just as dangerous communicating freely on the Internet as they are being in proximity to a school, park, etc., or any child living anywhere? Both arguments as we know are nonsensical and both have the same slippery slope feel. But yes, technically speaking, there’s a difference.
Does that mean that if I go on Lowes website that I have to register that url and user name because they have a chat help button that you can chat with an individual ? “identifier to communicate over the internet directly with another user”. So any site that has a pop up chat help ??? or is that not a user?
No – its a commercial transaction. You are buying hardware.
A majority of Internet users feel that the medium’s most valuable asset is anonymity – the ability to conceal one’s identity while communicating. This anonymity allows the persecuted, the underserved, and the simply embarrassed to seek information — and disseminate it — while maintaining their privacy and reputations in both cyberspace and the material world.
Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
In ACLU v. Miller, the American Civil Liberties Union got an injunction against the enforcement of a Georgia statute that prohibited a person from falsely identifying herself while sending e-mail, posting on the Internet, and more (one of the problems with the statute was that it was too vague). The court ruled it was appropriate to give an injunction, among other reasons, when there was the potential for chilling free expression. The court agreed with the state that its purpose in enacting the statute–preventing fraud–was a compelling state interest, but decided against the state because the statute was not narrowly-enough tailored to its purpose.
I’d like to thank Mark Mason for the information and case law you posted. Very informative. Thanks again.
All these arguments are excellent, however in Florida the internet identifier statute, unlike other challenged statutes is so narrowly tailored to real time User to User platforms, it passes muster under the second prong of the Kennedy v. Mendoza-Martinez test.
A social internet communication is “any communication through a commercial social networking website . . . or application software,” with three exceptions:
(1) “communication for which the primary purpose is the facilitation of commercial transactions involving goods or services”;
(2) “communication on an Internet website [whose] primary purpose . . . is the dissemination of news”; and
(3) “communication with a governmental entity.” Id. § 775.21(2)(m)
It does not violate anonymous speech, your allowed to post on any political bulletin board, News media site and blogs such as this anonymously. Your are prohibited from creating and maintaining an anonymous user identity on commercial sites such as Twitter and Face Book which by the way prohibit such activity regardless if your a RSO or not.
The goal of the legislation is to prevent the deviant from entering the digital playing field of minors using the anonymity of the internet. A legitimate governmental concern.
@A Horse With No Name, any number of prior criminals (or deviants, as you put it) could be an online danger to minors. Yet, we, and apparently our government, through action, appear wholly unconcerned about them. We have merely been trained to think of registrants specifically as recidivists, when the data points 180 degrees.
If we and the gov’t were truly concerned about minors, we would pull our heads out and implement any of the hundreds of other logical, rational, and data-backed precautions we could try. We associate with sex both pleasure and same at the same time, and the results are our sex-driven culture where sexual activity is also severely judged, regulated, and scrutinized.
This is our western dichotomy. Half coming primarily from conservatism and religious dogmatism, the other from libertarianism and the sexual revolution.
It should also be pointed out that nothing in the statute or this order limits registration to real time user-to-user communication. The order’s scope is only to “email addresses and internet identifiers, defined to apply only when a registrant actually uses an identifier to communicate over the internet directly with another user”. I say this not to be pedantic, but to protect anyone who might inadvertently think they now no longer need to register something unless there is real-time direct communication involved. Dealing in these issues unfortunately requires an almost overly pedantic analysis, due the the potential for huge risks involved with even minor confusions.
[https://www.dictionary.com/browse/real-time](Real-time | Define Real-time at Dictionary.com)
noun
Computers.
1. the actual time elapsed in the performance of a computation by a computer, the result of the computation being required for the continuation of a physical process.
2. the actual time during which a process takes place or an event occurs.
Idioms
3. in real time, Informal. at once; instantaneously.
The order’s scope is only to “email addresses and internet identifiers, defined to apply only when a registrant actually uses an identifier to communicate over the internet directly with another user”
We are communicating directly with each other over the internet, anonymously and its perfectly legal. Why? Because this is a politically action blog.
Not to worry I too find myself being very pedantic so lets try and keep it simple:
A social internet communication is “any communication through a commercial social networking website . . . or application software,” with three exceptions:
(1) “communication for which the primary purpose is the facilitation of commercial transactions involving goods or services”;
(2) “communication on an Internet website [whose] primary purpose . . . is the dissemination of news”; and
(3) “communication with a governmental entity.” Id. § 775.21(2)(m)
So by chance if I actively engage in a political blog using an unregistered and anonymous “Username” and get arrested for it, I would argue that the “dissemination of news” is vague and misleading.