Supreme Court – Meet Social Media


March 3, 2017

By Mark Rasch
Attorney and Cybersecurity Expert

Once again the United States Supreme Court steps into the thicket of how and when the States may regulate the content and actions of users or social media. In oral arguments on February 27, the Supreme Court considered the constitutionality of a North Carolina law that prohibited the use of Facebook or other social media sites by registered sex offenders. The case presents the issue of whether social media and similar websites are essentially necessities in public life.

The Statute

The North Carolina statute provides that it is a crime for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.” 

In April of 2012, J.R. Packingham posted on Facebook a message that said, “Man God is Good! How about I got so much favor they dismissed the [traffic] ticket before court even started?  No fine, no court costs, no nothing spent…. Praise be to GOD, WOW!  Thanks, JESUS!” 

To begin with, I serously doubt that Jesus was invovld in Packingham’s traffic ticket.  But as to the “no fine, no costs” part of Packingham’s Facebook exclamation, he was wrong. Packingham was arrested and convicted as a result of this post for using Facebook after having been a registered sex offender having previously pleading guilty to taking “indecent liberties” with a minor.

The State of North Carolina defended the restriction as a reasonable restriction on the use of new technoligies by sex offenders. In their brief  they pointed out the pervasive and perverse nature of online sexual predation, and the overwhelming interest in the state in protecting children. They pointed out that the proscription is “content neutral” and that other mechanisms would be less effective. Finally, they noted that there was no way to enforce a “case by case” or “message by message” restiction.

Baby – Bathwater

Now Courts can put all kinds of restrictions on convicts, usually as a condition of probation or parole. It’s not uncommon to mandate that, for example, hackers or other cybercriminals not have access to computers or computer networks for ANY purpose while on parole or probation. 

That’s because of the concept that such contact would be dangerous to the community, AND that there’s no RIGHT to parole or probation – it’s an alternative to incarceration. If you don’t like the terms, then you can go back to jail. But even then, the terms of probation must be reasonable – reasonably related to achieving some legitimate societal goal – protection, prevention, etc. 

So, for a convicted sex-offender, a condition that they not be within a certain reasonable distance of a school, playground, or place where children congregate MIGHT be reasonable, but a restriction that they not be at a gas station, grocery store, or doctor’s office (not pediatritian) not so much.  

The problem is worse when you talk aobut post-sentencing restrictions. After a person has served their time, they generally get most or all of their civil rights restored (voting rights are restored in some but not all jurisdictions). Restrictions on liberty interests after that point should be narrowly tailored to a legitimate state interest, and should be as narrow as possible to achieve that goal. A restriction saying you can't contact minors on social media (with a possible exception of the defendants’ relatives depending on the circumstances) would be reasonable and narrowly tailored. One that says effectively “no Internet for you” might not be.

You don’t want to throw out the baby with the bathwater.

At oral argument, the Supreme Court was initially skeptical of the convicted sex offender’s argument that he had some kind of “right” to be on social media.  Facebook’s own Terms of Service exlude entirely registered sex offeders. They were also concerned with the fact that a prohibition of communicating with minors would be unworkable, since it’s impossible online to determine with whom you are communicating anyway. So why not a blanket ban?

That was, until the Court got to ask questions of the representative for North Carolina. Justice Kagan pointed out that, under the Statute, a registred sex offender would be prohibited from viewing President Trump’s Twitter feed. Or the Twitter feeds of every Member of Congress, Senator, Governor, State Legislator – classic “political” speech. 

Justice Kennedy pointed out that social media has taken up the position formerly taken by the public square – the marketplace for ideas and conversation. Sex offenders would be prohibited from participating in any meaningful way. Kagan pointed out that some 50 million Americans use social networking sites for religious purposes – to express their faith. 

Justice Breyer was concerned that the state could pass statutes prohibiting for example convicted fraudsters from ever going online because of the potential they could defraud people online in the future. As Justice Breyer observed, “Here you take a group of people who’ve done something wrong, been fully punished, and you’re saying that they might say something to somebody which would be dangerous. And you’re right; it might be.  On the other hand, your remedy from that is to cut off their speech.”

It’s a fool’s errand to try to predict what any court – much less an eight member Supreme Court will or will not do in the future.  It’s a hopeful sign that the Court was engaged and knowledgeable about the similarities and differences between things like Facebook, Google, websites, Twitter, Snapchat and other technologies. Maybe one day our legislatures will learn these as well. 

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