Police Powers/Administrative Law

Privacy loses to security: The United States Supreme Court rules that states can put sex offenders on the WWW without a hearing. (Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, 71 USLW 4125, 71 USLW 4158 (2003) and Smith v. Doe, 123 S.Ct. 1140, 71 USLW 4182 (2003))

Choosing two of the so called Megan's law cases before it, the United States Supreme Court considered the conflict between individual privacy and community demands for security. While neither of these cases involved the physical restriction of liberty, both involved putting detailed personal and locating information about convicted sex offenders on the WWW. Ostensively about allowing communities to protect themselves against sex offenders, these laws invite vigilante justice and make it almost impossible for sex offenders and their families to integrate into the community. These cases dealt with two issues posed by public notification statutes in general. First, is the notification an impermissible punishment, in that it punishes for past conduct in the guise of preventing future conduct. Second, assuming that the public notification is constitutional, is the defendant entitled to a hearing at which he may attack the basis for the notification and demonstrate factors which mitigate against punishment?

In Smith v. Doe the United States Supreme Court found that defendant had show that he had a liberty interest that was affected by the public notification. Despite this, the court found that the purpose of the statute was prospective and preventive, not retrospective and penal. Rejecting the defendant's common sense arguments that being labeled a sex offender would have dire punitive consequences, the court ruled that public notification was not penal because the state clearly articulated a preventive purpose. Since this was a prospective measure intended to protect the community, any harm it did to the defendant's reputation was outweighed by the potential benefit to the community. The court seemed to find it important that most of this information was already publicly available, thus the Internet publication did not change the defendant's expectations of privacy. This shows a profound misunderstanding of the power of the Internet to make information widely available by dramatically reducing the opportunity cost of the information. It is a huge step from saying that information is available from a government agency by filing a freedom of information request and saying that it is on the WWW and can be accessed in seconds by anyone in the world. Moreover, because of the automatic archiving of information on the WWW, something that has been posted becomes immortal: even if the state made a mistake and took information off of their WWW site, it cannot purge it from various indexing and archiving systems distributed across the WWW.

Having ruled that such publications are permissible as preventive measures, the court turned to whether the defendant was entitled to any due process before the posting. In Connecticut Dept. of Public Safety v. Doe, the defendant demanded a hearing before public notification so that he could explain why the information should not be published. While a hearing was not directly at issue in Smith v. Doe, this is a common demand in these cases. The court found that a hearing is appropriate only in circumstances where it will improve the accuracy of the administrative decision without excessive cost. In this case, the court ruled that the public notification was based on the facts of the defendant's conviction and that this could not be overturned by any facts presented at a hearing. Thus the court found that the hearing was not necessary because it could not change the statutory facts that drove the public notification.
With the coming tide of national security related cases headed to the court, these cases illustrate two important points. First, significant interference with liberty, employment, and even housing, is not enough to class a statute as punitive unless it is labeled so by the legislature. Second, to the extent that the public notification is based on objective facts, the defendant has little or no right to contest the confinement. This is consistent with prior cases, but these did not involve such an efficient means of spreading information. By not acknowledging the special nature of the Internet, the court denies the importance of the most fundamental attack on privacy in our modern society.