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By a 1.1 million-vote margin, the people of New Jersey November 7 authorized an Internet registry of the state’s sex offenders, but the scope of the Web site eventually may be determined by votes cast in Washington, D.C., by nine people, the U.S. Supreme Court. Proponents and critics of the plan to make the names and whereabouts of Megan’s Law registrants available online said after the vote that they expect federal constitutional challenges if the site includes the addresses of former sex offenders, as many other states do. In previous decisions, the 3rd U.S. Circuit Court of Appeals has placed limits on the availability of registrants’ addresses. Assemblyman Joel Weingarten, R-Essex, says that if such limits are imposed again by the appeals court, the issue could end up in the Supreme Court. No litigation in other states, over dissemination of such information, has reached the high tribunal. According to an unofficial tally, voters said yes by 1,550,000 to 420,000 to an amendment to Article 4 of the state constitution. The change would permit the Legislature to authorize the disclosure pertaining to the identity, general and specific whereabouts, physical characteristics and criminal history of people found to have committed sex offenses. The amendment would presumably forestall challenges to an Internet registry under the privacy protections of the state constitution. The information that would be included on the Internet site has not been formally proposed. But the administration of Gov. Christine Todd Whitman has suggested that it would include data similar to that already posted by most of the two dozen states with such sites. Under A-5, a bill introduced by Weingarten, the site would allow varying degrees of specificity, depending on the offender’s tier classification. In the cases of Tier 2 and Tier 3 offenders — people now subject to community notification — anyone with a personal computer could call up a list that would include all offenders’ names and aliases. Surfers also could see a rundown on the dates, dispositions and descriptions of the offenses and a report on whether the registrant was at low, moderate or high risk to commit the offense again. Also included would be the offender’s age, race, sex, date of birth, height, weight, hair and eye color; a photograph and the street address, and Zip code, municipality and county in which the offender lives. People interested in obtaining information about a sex offender determined to be at low risk — a Tier 1 registrant — would be required to submit the offender’s name, as well as an additional item of identifying personal information, such as the offender’s home address, Social Security number or date of birth. Anyone interested in what such a site would look like can find them on the Internet already. Links to state sites — the ones in Alabama and Iowa are similar to what Weingarten has in mind — can be found at www.klaaskids.org and www.parentsformeganslaw.com. At the top of the home pages of some of the state sites is a picture of Megan Kanka, the New Jersey girl whose death at the hands of a released sex offender generated the national drive for disclosure and gave Megan’s Laws their name. Before the election, the New Jersey chapter of the American Civil Liberties Union opposed the registry on constitutional and practical grounds. On a constitutional level, the ACLU argued, the registry is wrong because it doesn’t fulfill the purpose of Megan’s Law, keeping the community safe, not punishing offenders anew for crimes for which they have already been punished. As a practical matter, “posting sex offender lists on the Internet creates public hysteria and vigilantism,” the ACLU said in its opposition statement. The registry also will drive ex-offenders underground, the ACLU added. And it said it’s already been shown in other states that sites become rapidly outdated because they are not updated as registrants move. This could result in harassment of innocent people who might live where a former offender used to live, the ACLU said. Deborah Jacobs, executive director of the state ACLU chapter, and Assistant Deputy Public Defender Edward Barocas, the lead litigator in previous challenges to enforcement of Megan’s Law, said last week that it was premature to comment on any court challenges to the Internet registry. It’s obvious, however, that any litigation will center on whether the site can include the registrants’ street addresses because the 3rd Circuit has expressed concern about such disclosures. In Paul P. v. Farmer, 227 F.3d 98 (2000), a three-judge panel approved the dissemination of street addresses of Tier 2 and Tier 3 offenders to people in the registrants’ notices. The court suggested, however, that it was comfortable with such disclosures only because the rules require limited circulation and the recipients of the information are supposed to keep it private. “Redacted notices, it must be remembered, are not released willy-nilly to the general public,” Judge Maryanne Trump Barry said in her opinion for the court. But nothing could be more willy-nilly, than a Web site open to access by anyone, critics of widespread disclosure contend. “The 3rd Circuit found that all citizens have a right to privacy and that right exists no matter what,” Barocas says. In addition, amending the state constitution to allow widespread dissemination of data about Megan’s Law registrants does not remove privacy rights under the U.S. Constitution, he says. “The 3rd Circuit found there was a right to privacy under the federal Constitution,” Barocas says. Proponents of the Internet registry, including Weingarten, have acknowledged that the 3rd Circuit’s existing jurisprudence might prevent posting of addresses. But he says the U.S. Supreme Court might not agree with the circuit’s reasoning. “The public’s right to know outweighs the offender’s right to privacy,” Weingarten says. So far, federal courts in only two other jurisdictions have ruled on the Internet registry issue, and both those decisions were victories for full disclosure. In Femedeer v. Haun, 35 F. Supp. 2d 852 (1999), the 10th U.S. Circuit Court of Appeals upheld Utah’s Internet scheme, and in Akella v. Michigan, 67 F. Supp. 2d 716 (1999), a federal judge in the Eastern District of Michigan upheld that state’s right to publish registrants’ addresses.

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