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Probing the 4th Amendment: On RSO e-mail Addresses and Internet Ids
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It appears that some folks had interpreted the original of this Op/Ed as meaning that they could "REFUSE" to provide their e-mail addresses when their state required such as part of sex offender registration.
A direct "REFUSAL" would always be a mistake because most all, if not all, state registration laws would interpret "REFUSAL" as a crime and very well could lead to arrest. What follows proposes another way to handle a "request for e-mail addresses" which is not a "REFUSAL."
I also strongly advise that folks contact a local lawyer about these newer laws concerning e-mail addresses and follow their advise. I am quite sure even they will realize that the 4th Amendment is being violated by this new addition to registration laws. With that said.
The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
What exactly does the 4th. protect? Your person, your house, your paper, and your effects.
What does the 4th. protect from? "Unreasonable search and seizure." In other words, no one from the government (which includes law enforcement) can unreasonably search or seize, your person, your house, you papers and effects.
What must the government have before it can "search or seize" what is on your person, in your house, or your papers or effects? "A warrant."
What must the government do to get a warrant? It must have probable cause supported by oath or affirmation. Thats probable cause that a crime has been committed.
OK, can the police or someone from the U.S. Government (FBI, U.S. Marshals) come into your home and search, or seize, or ask for proof that you purchased, or the serial numbers of, the following: your refrigerator, your TV, your garage, your basement, the locked suitcases in your home, your jewelry or a locked jewelry box, a footlocker, or anything else which is inside your home and enclosed, or locked? Oh yes, lets include a properly licensed and registered gun which you keep for protection in a locked box?
Review the list carefully, guess what the answer is simple, no, unless you give them consent and provide them what they ask for.
Should you be skeptical of such an attempt by those parties, would anyone think such actions are normal?
5-15-07 "Courts Grapple with Computer Searches."
Dealing with -third party consent- and the court allowed such to be considered consent to search. Here are the cases discussed: U.S. -v- Andrus -and- U.S. -v Buckner -and- U.S. -v- Morgan
The key to those cases is, in order to search those computers a warrant was needed, or someone had to give consent.
So with those facts, if someone official looking appears at your door and asks for the above, what would or should you ask for?
Before you answer, remember this, in 2005 in Washington state, a man claiming to be an FBI agent dropped in on three Level 3 sex offenders living together, supposedly to warn them of an Internet "hit list" targeting sex offenders. Two of them were later found murdered by that alleged FBI agent.
Now, read this: ""Computer data in school shooting case can't be used in court," and this comment "The e-mail wasn't mentioned in applications for a search warrant to seize the computers, and Woodall said the deputies might have had probable cause to take the computers if they had provided more information at the time."
And this: "Police: Social worker discovers child porn ," and this comment "On Sept. 11, 2006, police went to the home to speak with Milne. Officers asked Milne if they could check his computer and he gave his consent. During the initial check of the computer, officers found child pornography, police said. They seized the computer then applied for a search warrant so they could examine the computer, which was granted."
And this : "Computer Privacy in Distress," and this comment "Second, a recent case in the 9th U.S. Circuit Court of Appeals has held that private employees have no reasonable expectation of privacy, and thus no Fourth Amendment rights, in their workplace computers (gulp!)."
One more about work: No privacy in home PC brought to work and this comment: "City treasurer in Oklahoma protests warrantless search of his personally owned computer after a police inspection allegedly discovered child pornography.
Then this 10th Cir decision: USA -v- RAY ANDRUS, where police did not have consent, so they waited until Andrus was not home and got consent from his father.
So what do we have, computers at work no privacy, computers at home private because it is one of your effects, and they need a warrant, unless you give consent.
Finally, these two articles: "Sex offenders now required to register online identities in Ky. (Kentucky)" -and- "Sexual Predators to Be Identified with New Identification Tool (West Virginia)"
Quote from West Virginia article: "Starting in 2001, some convicted sex offenders were required to provide West Virginia State police with their Internet account information, including all screen names, nicknames, or other aliases. On Monday, April 23rd 2007, West Virginia Governor Joe Manchin revealed a database containing over 4,000 Internet identities of convicted sex offenders on file with the state police."
"Some convicted sex offenders?" Why only some, and who were included in the some? My guess is, those on parole or probation, who cannot refuse anything asked for by the state, the state controls every facet of their lives until parole or probation is over.
Apparently the state was not comfortable asking those not on parole or probation, again I will hazard a guess why, it would violate the 4th amendment. I wonder if today West Virginia coerces that information out of every person that registers? Or if, there still are some that do not have to provide it?
So, are these registration laws violating the 4th Amend. by forcing (coercing under the threat of imprisonment) registered sex offenders, or other sex offenders, to provide their e-mail addresses, so that, the government may give them out to every Tom, Dick and Harry that has a website they call a "Social Networking Website" to keep those folks off those sites?
Oh yes, I forgot, what you give to the government must be handled according to federal privacy laws: 5 USC 552a ((b) Conditions of Disclosure.— No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be— [you must review the conditions]), but will they? You decide.
Hummmm, I wonder if providing e-mail addresses is "consent" to also search, and maybe even seize? A sticky widget.
The answer to the ultimate question: "I (the state) wants something that is found only in your home, e-mail address?" Warrant please? That is not a refusal, that is asserting your constitutional rights under state and federal constitutions! Check with your lawyer.
eAdvocate (Copyright 2007 - All Rights Reserved)
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