Doe v. Shurtleff


[9809697] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Gorsuch, McKay (author) and Cudahy. Mandate to issue.

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Doe v. Shurtleff U n i t e d States Court of Appeals Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010Circuit 1 T e n t h Page: FILED Doc. 0 O c t o b e r 26, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS F O R THE TENTH CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court J O H N DOE, Plaintiff-Appellant, v. M A R K SHURTLEFF, Office of the A t t o r n e y General for the State of U t a h , in his official capacity, Defendant-Appellee. N o . 09-4162 APPEAL FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF UTAH ( D . C . No. 08­CV­00064­TC) E l i z a b e t h G. Eager (Emmet J. Bondurant, II, and Nicole G. Iannarone with her on t h e briefs), of Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for PlaintiffAppellant. N a n c y L. Kemp, Assistant Utah Attorney General (Sharel S. Reber, Assistant U t a h Attorney General, and Mark L. Shurtleff, Utah Attorney General, with her o n the brief), Salt Lake City, UT, for Defendant-Appellee. B e f o r e GORSUCH, McKAY, and CUDAHY *, Circuit Judges. M c K A Y , Circuit Judge. Honorable Richard D. Cudahy, Circuit Judge, United States Court of A p p e a l s for the Seventh Circuit, sitting by designation. * Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 2 I n this case John Doe, a registered sex offender living in the state of Utah, a p p e a l s the district court's decision to allow enforcement of a Utah statute r e q u i r i n g all sex offenders living in Utah to register their "internet identifiers" a n d the corresponding websites with the state. We now uphold that decision b a s e d on our conclusion that the statute does not violate the First or Fourth A me n d me n t s or the Ex-Post Facto Clause of the United States Constitution, made a p p l i c a b l e to Utah through the Fourteenth Amendment. BACKGROUND A p p e l l a n t , proceeding anonymously as Mr. John Doe, was convicted by the U n i t e d States military court system of sex offenses involving a minor and s e n t e n c e d to eighteen months' imprisonment. After serving thirteen months of t h i s sentence, Mr. Doe was released without being placed on probation or s u p e r v i s e d release. However, as a resident of Utah and a convicted sex offender, M r . Doe was still required to register with the Utah Department of Corrections, p u r s u a n t to Utah Code Ann. § 77-27-21.5 (West 2008). Among its many p r o v i s i o n s , this registry law required Mr. Doe to provide all "Internet identifiers1 a n d the addresses [he] uses for routing or self-identification in Internet The statute defined "online identifier" as "any electronic mail, chat, i n s t a n t messenger, social networking, or similar name used for Internet c o mmu n i c a t i o n . " Id. § 77-27-21.5(1)(j). -2- 1 Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 3 c o mmu n i c a t i o n s or postings." Id. § 77-27-21.5(14)(i). 2 The statute also required t h a t Mr. Doe provide "all online identifiers and passwords used to access" w e b s i t e s where he was using an online identifier, with the exception of identifiers u s e d for employment or financial accounts. Id. § 77-27-21.5(12)(j) & (29). Believing that these requirements violated his First and Fourth Amendment r i g h t s as well as the Ex Post Facto Clause of the United States Constitution, Mr. D o e refused to provide the requested information and brought a lawsuit c h a l l e n g i n g the law. Upon Mr. Doe's motion for summary judgment, the district c o u r t invalidated the statute based on its conclusion that the statute, which p r o v i d e d "no restrictions on how the [State] c[ould] use or disseminate r e g i s t r a n t s ' internet information," improperly infringed on Mr. Doe's First A me n d me n t right to anonymous speech. (Appellant's App. at 208.) Shortly after t h i s ruling, the Utah legislature amended the statute. First, the legislature r e mo v e d any requirement that offenders disclose their passwords, and second, it p l a c e d some limits on how a state official can use identifiers provided by an o f f e n d e r . Specifically, the statute now 3 provides that T h i s provision is now located in subsection (14)(i), pursuant to changes in t h e statutory structure made shortly after the district court's ruling. In addition to the amendment made shortly after the district court's ruling, t h e Utah legislature has made several more recent changes to section 77-27-21.5, i n c l u d i n g changes that went into effect after the parties had filed their briefs. Accordingly, we here cite to Utah's current code, and not to the statute as it e x i s t e d at the time the parties submitted their arguments. -33 2 Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 4 T h e [state], to assist in investigating kidnapping and sex-related c r i me s , and in apprehending offenders, shall: (a) develop and operate a system to collect, analyze, maintain, and disseminate information on offenders and sex and kidnap offenses; (b) make information listed in Subsection (27) available to the public; and (c) share information provided by an offender under this section that may not be made available to the public under Subsection (27), but only: (i) for the purposes under this Subsection (2); or (ii) in accordance with [the Government Records Access and Management Act]. U t a h Code Ann. § 77-27-21.5(2) (West Supp. 2010). Additionally, the legislature a me n d e d Utah's Government Records Access and Management Act, or GRAMA, t o designate certain information provided by an offender, including internet i d e n t i f i e r s , as private. 4 See Utah Code Ann. § 63G-2-302(1)(m) (West Supp. 2010). F o l l o w i n g these amendments, the State filed a motion for the district court t o vacate its earlier order pursuant to Rule 60(b) of the Federal Rules of Civil P r o c e d u r e . After considering the briefs, the district court granted the motion, h o l d i n g that the new restrictions "diminished" the chilling effect on Doe's speech s o that his First Amendment right to anonymous speech was no longer Information designated as "private" by GRAMA may only be disclosed in l i mi t e d circumstances such as when requested by the subject of the record, or p u r s u a n t to a court order or legislative subpoena. See Utah Code Ann. §§ 63G-22 0 1 ( 5 ) (West Supp. 2010); id. § 63G-2-202. Additionally, the statute permits i n f o r ma t i o n sharing between different government entities and their agents but p l a c e s "an entity receiving the record" under "the same restrictions on disclosure o f the record as the originating entity." Id. § 63G-2-206. -4- 4 Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 5 " s i g n i f i c a n t l y threatened." (Appellant's App. at 292.) The court then concluded t h a t the statute did not violate the Fourth Amendment because Mr. Doe had failed t o show he had a reasonable expectation of privacy in his internet identifiers, w h i c h are communicated to a third party. Finally, the court held, relying on our e a r l i e r decision in Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000), that t h e registry statute did not violate the Ex Post Facto Clause. Mr. Doe now a p p e a l s each of these rulings. DISCUSSION W e generally review a decision to grant a Rule 60(b) motion for an abuse o f discretion. See Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 994 (10th C i r . 1996). Nevertheless, we review the district court's decision de novo where, a s here, the district court granted relief as a matter of law. See Lyons v. Jefferson B a n k & Trust, 994 F.2d 716, 727 (10th Cir. 1993) ("A district court would n e c e s s a r i l y abuse its discretion if it based its rulings on an erroneous view of the l a w . . . ."). 1 . Mr. Doe's claim under the First Amendment W e first consider Mr. Doe's contention that Utah's registration statute v i o l a t e s his First Amendment right to engage in anonymous speech. That the First A me n d me n t guarantees a right to anonymous speech is beyond question. As the S u p r e me Court explained in McIntyre v. Ohio Elections Commission, "Anonymity i s a shield from the tyranny of the majority. It thus exemplifies the purpose -5- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 6 b e h i n d the Bill of Rights, and of the First Amendment in particular: to protect u n p o p u l a r individuals from retaliation--and their ideas from suppression--at the h a n d of an intolerant society." 514 U.S. 334, 357 (1995) (citation omitted). That t h e right to engage in anonymous speech should extend fully to communications ma d e through the medium of the internet is equally clear. See Reno v. ACLU, 521 U . S . 844, 870 (1997) (explaining that the internet allows "any person with a p h o n e line [to] become a town crier with a voice that resonates farther than it c o u l d from any soapbox" and that "our cases provide no basis for qualifying the l e v e l of First Amendment scrutiny that should be applied to this medium"). In s p i t e of these protections, however, a state may permissibly infringe upon this r i g h t when its interest is important enough and the law is appropriately tailored to me e t the stated interest. See Am. Constitutional Law Found., Inc. v. Meyer, 120 F . 3 d 1092, 1102 (10th Cir. 1997). A c c o r d i n g to Mr. Doe, we should view Utah's statute as a content-based r e s t r i c t i o n , subject to the strictest of scrutiny, because it has the effect of taking " a w a y [Mr.] Doe's right to choose whether to speak anonymously or under a p s e u d o n y m. " (Appellant's Br. at 10.) We are not persuaded. "The principal i n q u i r y in determining content neutrality is whether the government has adopted a r e g u l a t i o n of speech because of disagreement with the message it conveys." Am. T a r g e t Adver., Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000) (internal q u o t a t i o n marks and ellipsis omitted). -6- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 7 A s a general rule, laws that by their terms distinguish favored s p e e c h from disfavored speech on the basis of ideas or views e x p r e s s e d are content based. By contrast, laws that confer benefits o r impose burdens on speech without reference to the ideas or views e x p r e s s e d are in most instances content neutral. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994) (citation omitted). Simply because an otherwise content-neutral law has "an incidental effect on s o me speakers or messages" does not change its classification so long as it " s e r v e s purposes unrelated to the content of expression." Golan v. Holder, 609 F . 3 d 1076, 1083 (10th Cir. 2010). On its face, section 77-27-21.5 is a contentn e u t r a l regulation. The law says nothing about the ideas or opinions that Mr. Doe ma y or may not express, anonymously or otherwise. Neither is it aimed at " s u p r e s s [ i n g ] the expression of unpopular views," Am. Target, 199 F.3d at 1247, b u t rather it is directed towards aiding the police in solving crimes. We will t h e r e f o r e examine the State's law as a content-neutral regulation. A s a content-neutral regulation, Utah's reporting law is subject to i n t e r me d i a t e scrutiny, meaning that the law will be upheld if "the Act (1) serves a s u b s t a n t i a l government interest and (2) is `narrowly drawn' to serve that interest ` w i t h o u t unnecessarily interfering with First Amendment freedoms.'" Id. (quoting V i l l . of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 637 (1980)). Both sides have agreed that Utah has a compelling interest in protecting the p u b l i c from kidnapping and sex-related crimes, and we conclude that the r e p o r t i n g statute serves that interest. Thus, our consideration of this statute must -7- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 8 f o c u s on whether it unnecessarily interferes with Mr. Doe's First Amendment f r e e d o ms . In reviewing state statutes challenged on First Amendment grounds, w e will uphold a law if it is "readily susceptible to a narrowing construction that w o u l d make it constitutional." ACLU v. Johnson, 194 F.3d 1149, 1159 (10th Cir. 1 9 9 9 ) . Nevertheless, "[t]he key to application of this principle is that the statute mu s t be readily susceptible to the limitation; we will not rewrite a state law to c o n f o r m it to constitutional requirements." Id. Mr. Doe argues that the statute is unconstitutional because the required d i s c l o s u r e of internet identifiers to state officials, as well as the possibility of d i s c l o s u r e of those identifiers to the public, chills his speech. 5 Turning first to t h e possibility of disclosure to the public, Mr. Doe focuses on the language of s e c t i o n 77-27-21.5(2)(c), which allows the state to "share information provided b y an offender under this section that may not be made available to the public [on t h e sex-offender notification and registration website], but only: (i) for the p u r p o s e s under this Subsection (2); or (ii) in accordance with Section 63G-22 0 6 . " (emphasis added). According to Mr. Doe, the "or" in this statute means Mr. Doe also alleges that the law is improper because it is not the least r e s t r i c t i v e means of addressing the state's interest. However, under intermediate s c r u t i n y "a regulation need not be the least speech-restrictive means of advancing t h e Government's interests. Rather, the requirement of narrow tailoring is s a t i s f i e d so long as the regulation promotes a substantial government interest that w o u l d be achieved less effectively absent the regulation." Turner Broad., 512 U . S . at 662 (internal quotation marks and ellipsis omitted). -8- 5 Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 9 t h a t the government may choose to share information with the public, free from t h e privacy safeguards contained in section 63G-2-206, so long as it is "to assist i n investigating kidnapping and sex-related crimes." § 77-27-21.5(2). Thus, Mr. D o e argues, the statute allows for the possibility of forced public disclosure of w h a t would otherwise be anonymous speech. D e s p i t e Mr. Doe's arguments, however, we conclude that Utah's law p r o v i d e s sufficient safeguards so as to negate any potential fears of public d i s c l o s u r e . While Mr. Doe is correct that the language of subsections (c)(i) and ( c ) ( i i ) allows law enforcement to share information under either condition, he is n o t correct that information shared under subsection 21.5(c)(i) loses its privacy p r o t e c t i o n . Rather, as we discussed infra, under Utah's GRAMA statute, Mr. D o e ' s online identifiers are classified as private records and may not be disclosed e x c e p t under the limited circumstances allowed by sections 63G-2-202, 63G-22 0 6 , or 63G-2-303. See Utah Code Ann. § 63G-2-201(5)(a) (West Supp. 2010). Thus, even if information shared under section 77-27-21.5(2)(c)(i) is not subject t o the protections of section 63G-2-206, it is nevertheless protected by and s u b j e c t to the disclosure and privacy requirements of section 63G-2-201(5) and its r e l a t e d provisions, which include criminal penalties accompanying an u n a u t h o r i z e d disclosure. See id. § 63G-2-801(1)(a). As for Mr. Doe's arguments concerning the potential chilling effect of d i s c l o s u r e to state officials, we also hold that the statute includes sufficient -9- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 10 r e s t r i c t i o n s so as not to unnecessarily chill Mr. Doe's speech. Mr. Doe argues t h a t the language of section 77-27-21.5(2) is broad enough to allow the state to mo n i t o r his communications at any time, which in turn may chill any anonymous c r i t i c i s ms of oppressive laws or state practices he might otherwise make via the i n t e r n e t . However, while this section, which allows the State to use an offender's i n t e r n e t identifiers "to assist in investigating kidnapping and sex-related crimes, a n d in apprehending offenders,"§ 77-27-21.5(2), can be read broadly, we c o n c l u d e that it is also readily susceptible to a narrowing construction. A c c o r d i n g l y , we read this language, as did the district court, as only allowing s t a t e actors to look beyond the anonymity surrounding a username in the course o f an investigation after a new crime has been committed. Although this narrow interpretation may still result in the disclosure of Mr. D o e ' s online identifiers to state officials, such identification will not u n n e c e s s a r i l y interfere with his First Amendment freedom to speak anonymously b e c a u s e such a disclosure would occur, if at all, at some time period following M r . Doe's speech and not at the moment he wished to be heard. As the Fourth C i r c u i t has explained, "Speech is chilled when an individual whose speech relies o n anonymity is forced to reveal his identity as a pre-condition to expression. In o t h e r words, the First Amendment protects anonymity where it serves as a c a t a l y s t for speech." Peterson v. Nat'l Telecomm. & Info. Admin., 478 F.3d 626, 6 3 2 (4th Cir. 2007) (citation omitted); see also Buckley v. Am. Constitutional Law -10- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 11 F o u n d . , 525 U.S. 182, 199-200 (1999) (holding that a law requiring petition c i r c u l a t o r s to attach an affidavit with personal information to completed petitions w a s constitutional but invalidating a requirement that the circulators wear name b a d g e s at the time they gathered petition signatures because it "compelled . . . i d e n t i f i c a t i o n at the precise moment when the circulator's interest in anonymity [ w a s ] greatest"). A s a final First Amendment consideration, Mr. Doe alleges that Utah's s t a t u t e is overbroad. Specifically, Mr. Doe argues that the law is unconstitutional b e c a u s e it allows the state to collect the internet identifiers of individuals who are r e q u i r e d to register under the reporting statute because of their involvement with a kidnapping offense. According to Mr. Doe, because these offenders' " u n d e r l y i n g offenses are not sex-related crimes," the statute is not narrowly d r a w n to serve the stated purpose of investigating sex-related crimes. (Appellant's Reply Br. at 18.) However, the most recent enactment of the statute a l l o w s state officials to access online identifiers "to assist in investigating k i d n a p p i n g and sex-related crimes," § 77-27-21.5(2) (emphasis added), and we a r e not persuaded that individuals convicted of kidnapping offenses constitute " t h i r d parties whose speech is more likely to be protected by the First Amendment t h a n the plaintiff's speech," D.L.S. v. Utah, 374 F.3d 971, 976 (10th Cir. 2004); s e e also Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U . S . 789, 802 (1984) ("[I]f the ordinance may be validly applied to [the plaintiff], -11- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 12 i t can validly be applied to most if not all . . . parties not before the Court."). 2 . Mr. Doe's claims under the Fourth Amendment and Ex Post Facto Clause W e now consider Mr. Doe's claim that he has a reasonable expectation of p r i v a c y in his online identifiers and that requiring him to report these identifiers t o the state of Utah violates his Fourth Amendment right to be free from u n r e a s o n a b l e searches and seizures. We touched on this issue in United States v. P e r r i n e , 518 F.3d 1196 (10th Cir. 2008). In Perrine, Pennsylvania police officers o b t a i n e d , without a warrant, subscriber information--including the IP a d d r e s s -- a s s o c i a t e d with the unique Yahoo! online identifier "stevedragonslayer" f r o m Yahoo! (after an individual using that identifier showed pornographic videos o f underage girls to another visitor in a Yahoo! chatroom). Id. at 1199. Using t h a t IP address, the officers were then able to ascertain the defendant's name and r e s i d e n t i a l address from Cox Communications, the internet service provider that h a d issued the IP address. Id. at 1199-1200. Following his conviction, the d e f e n d a n t challenged the officer's actions based, in part, on his argument that the p o l i c e had violated his Fourth Amendment rights. We rejected this argument and h e l d that the defendant had no reasonable expectation of privacy in "information t h a t he voluntarily transmitted to the third-party internet providers, Cox and Y a h o o ! " Id. at 1204. On appeal, we see no reason why we are not bound by our earlier decision i n Perrine. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) ("We are bound by -12- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 13 t h e precedent of prior panels absent en banc reconsideration or a superceding c o n t r a r y decision by the Supreme Court."). Although Mr. Doe now argues that t h e r e is a reasonable expectation of privacy in online identifiers because it is not a l w a y s the case that an individual can be identified from his identifier, even if p o l i c e are in possession of the associated IP address, he has raised these a r g u me n t s for the first time on appeal. "Generally, we do not consider issues not p r e s e n t e d to, considered and decided by the trial court, because an appellant's n e w argument gives rise to a host of new issues, and Appellee had no opportunity t o present evidence it may have thought relevant on these issues." Utah Envtl. C o n g . v. Russell, 518 F.3d 817, 828-29 (10th Cir. 2008) (internal quotation ma r k s , brackets, and citation omitted). Such is the case here; Mr. Doe's a r g u me n t s raise a slew of new issues and evidentiary questions to which the State d i d not have a fair opportunity to respond. 6 However, even if Mr. Doe's a r g u me n t s were not forfeited, as the district court correctly observed, "there are n o facts [in the record] from which the court can conclude that [Mr. Doe's] i d e n t i t i e s are shielded from [his] Internet service provider." (Appellant's App. at 2 9 3 . ) Accordingly, we find no error in the district court's ruling on Mr. Doe's Indeed, as illustrative of the new evidence needed to support Mr. Doe's a r g u me n t s , he has asked this court to take judicial notice of facts that were not p r e s e n t e d in the district court but are, according to Mr. Doe, "capable of accurate a n d ready determination by resort to sources whose accuracy cannot reasonabl[y] b e questioned." (Appellant's Br. at 37 n.70; see also id. at 38 n.71.) -13- 6 Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 14 F o u r t h Amendment claim. F i n a l l y , we consider Mr. Doe's contention that the district court erred by h o l d i n g that Utah's statute is not an impermissible ex post facto law. "[T]he t h r e s h o l d inquiry for assessing a violation of the Ex Post Facto Clause in the p r e s e n t case is whether Utah's . . . program constitutes additional criminal p u n i s h me n t for the crimes previously committed by those subject to its p r o v i s i o n s . " Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir. 2000). Thus, " [ i ]f the notification measures are deemed civil rather than criminal in nature, t h e y present no ex post facto violation." Id. Even where, as here, neither party c o n t e s t s that the legislature intended to establish a civil remedy, we must still c o n s i d e r whether "the statutory scheme was so punitive either in purpose or effect a s to transform what was clearly intended as a civil remedy into a criminal p e n a l t y . " Hudson v. United States, 522 U.S. 93, 99 (1997) (internal quotation ma r k s , brackets, and citation omitted). However, "[o]nly the clearest proof will s u f f i c e to override legislative intent and transform what has been denominated a c i v i l remedy into a criminal penalty." Id. at 100 (internal quotation marks o mi t t e d ) . In Femedeer v. Haun, after examining the same Utah statute at issue in this c a s e -- a b s e n t the requirement that an offender disclose his or her internet i d e n t i f i e r s -- w e stated that the evidence did "not come even close to the `clearest p r o o f ' necessary to overcome the civil intent of Utah's legislature." 227 F.3d at -14- Appellate Case: 09-4162 Document: 01018521575 Date Filed: 10/26/2010 Page: 15 1 2 5 3 . We then held that "Utah's notification scheme imposes only a civil burden u p o n sex offenders and therefore does not run afoul of the Ex Post Facto Clause." Id. Nevertheless, on appeal Mr. Doe argues that this new disclosure requirement p r o v i d e s "`the clearest proof' that the notification scheme is an ex post facto law t h a t is punitive in purpose and effect." (Appellant's Br. at 45.) Looking closely a t Mr. Doe's argument on this issue, it seems clear that his contentions depend e n t i r e l y upon his argument that the Utah statute would allow impermissible public d i s c l o s u r e of his internet identifiers, thereby destroying his right to anonymous s p e e c h . However, because we conclude that Utah's registration statute does not v i o l a t e the First Amendment, we hold that the effect of the new disclosure r e q u i r e me n t s is not substantial enough to alter our original analysis of the statute i n Femedeer. Thus, we hold that the district court did not err in dismissing Mr. D o e ' s claim under the Ex Post Facto Clause. Therefore, for these and the foregoing reasons, we AFFIRM the district c o u r t ' s ruling vacating its earlier orders enjoining enforcement of the statute. -15-

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