Doe v. Shurtleff

Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010), was a United States Court of Appeals for the Tenth Circuit case assessing the constitutionality of Utah Code Ann. § 77-27-21.5, a law that requires sex offenders to register their internet identifiers with the state in order to "assist in investigating kidnapping and sex-related crimes, and in apprehending offenders." In this case, a convicted sex offender, appearing anonymously as John Doe, appealed a decision by the United States District Court for the District of Utah to vacate an order enjoining the enforcement of Utah Code Ann. § 77-27-21.5. Even though Doe did not dispute the state's interest in enacting such a statute, he believed that the statute's enforcement ran afoul of his: 
Upon examining Doe's appeal, the Tenth Circuit determined that Utah's registration statute did not violate Doe's First or Fourth Amendment rights or the Ex Post Facto Clause, and therefore affirmed the lower court's decision to lift the injunction.
Background of the case.
Doe was convicted by the United States military court system for sex offenses involving a minor and received an 18-month prison sentence. He was released after 13 months' imprisonment and was neither placed on probation nor put on supervised release. However, as a convicted sex offender residing in Utah, Doe was required to register with the Utah Department of Corrections under the Utah Code Ann. § 77-27-21.5. The statute specifically required Doe to provide "'all online identifiers and passwords used to access' websites where he was using an online identifier'". An exception was granted for identifiers associated with employment and financial accounts. Doe refused to register his identifier information and decided to challenge the law.
Procedural history.
Doe sued in the District of Utah to enjoin § 77-27-21.5, arguing that the law infringed his First and Fourth Amendment rights and violated the Ex Post Facto Clause. The District Court invalidated the statute on the grounds that it did not specify restrictions on the manner in which the state could use or disclose a registrant's information, thus hindering Doe's ability to exercise his First Amendment right to speak anonymously.
In response to the District Court's ruling, the Utah legislature amended the registration statute to (1) eliminate the password disclosure requirement and (2) set restrictions on state officials' ability to share offenders' online identifiers with the public. According to Subsection 2 of the amended statute:
The legislature also amended Utah's Government Records Access and Management Act (GRAMA), Utah Code Ann. §§ 63G-2-101 et seq., to designate internet identifiers as "private". Under the GRAMA, "private" information may only be disclosed in limited circumstances, such as when requested by the subject of the record, or pursuant to a court order.
Following these amendments, the State of Utah filed a motion under Federal Rules of Civil Procedure Rule 60(b) requesting that the District Court vacate its order enjoining enforcement of Utah Code Ann § 77-27-21.5 in Doe's case. The District Court granted the motion, holding that: 
Doe appealed to the Tenth Circuit.
Court of Appeals Opinion.
The Tenth Circuit affirmed the District Court's decision to enforce the statute.
I. Did the registration statute violate the First Amendment?
Doe argued that by forcing him to reveal his online identifiers to the state, the Utah registration statute hindered him from exercising his First Amendment right to engage in anonymous speech. Citing to "McIntyre v. Ohio Elections Commission", 514 U.S. 334 (1995), and "Reno v. ACLU", 521 U.S. 844 (1997), the Tenth Circuit acknowledged that First Amendment protection for anonymous speech was a well-established precedent, and that this protection had been extended to internet communications. However, the Tenth Circuit went on to explain that "a state may permissibly infringe upon this right when its interest is important enough and the law is appropriately tailored to meet the stated interest." 
II. Did the registration statute violate the Fourth Amendment?
The Tenth Circuit next addressed Doe's Fourth Amendment argument. Doe argued that he had a reasonable expectation of privacy in regard to his online identifiers, and that by forcing him to reveal the identifiers to the State, the registration statute violated Doe's Fourth Amendment right to be free from unreasonable government searches and seizures. Applying precedent from an earlier decision, "US v. Perrine", 518 F.3d 1196 (10th Cir. 2008), the Tenth Circuit held that the statute did not violate the Fourth Amendment because Doe did not have a reasonable expectation of privacy in "information that he voluntarily transmitted to the third party internet providers," including his internet identifiers.
III. Was the registration statute an ex post facto law?
Doe's final argument was that Utah Code Ann. § 77-27-21.5 was an unconstitutional ex post facto law because it "constitute[d] additional criminal punishment for crimes previously committed by those subject to its provisions". Citing "Femedeer v. Haun", 227 F.3d 1244 (10th Cir. 2000), an earlier case addressing the ex post facto effect of the same statute, but before the internet identifier requirement had been added, the Tenth Circuit held that the registration of sex offenders' internet identifiers was a civil, as opposed to a criminal, penalty. Because it was only a civil penalty, registration of internet identifiers did not violate the Ex Post Facto clause.
Further reading.
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