Social Networking for Jerks: FTC Goes After Site for Scraping Facebook Content

John Doe v. PROSECUTOR, MARION COUNTY, INDIANA - Sex Offender Internet Use

The Internet is a dream come true for child molesters. Offering almost an anonymous victim, normally under little or no adult supervision gives the sexual predator easy access to clandestine meetings with ease. Facebook, Twitter, MySpace, Google Plus and a half dozen more social networking sites offer an additional path which combines with nation-wide access to a large pool of potential victims, many of them as young as their pre-teens with ready victims who are often willing to be sexually involved. Efforts to regulate convicted sex offenders can run afoul of the First and Fourteenth Amendments and have proven difficult to enforce.  The following Indiana case presents the problems faced by the law in the Midwest. 

Should the State prohibit certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18? Indiana Code § 35-42-4-12(e), enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor.  Plaintiff John Doe ("Mr. Doe") contends that this statute runs afoul of the targeted sex offenders' First Amendment rights.  Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana ("State"). 

Plaintiff Doe noted that social networking has evolved with astonishing speed. The most prominent social networking site, Facebook, was founded in 2004, just eight years ago. Facebook Newsroom, FACEBOOK, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last visited June 22, 2012) (hereinafter "Facebook Newsroom"). Originally created for college students the domain is now opened up to everyone over the age of 13. Statement of Rights and Responsibilities, FACEBOOK, http://www.facebook.com/legal/terms (last visited June 22, 2012).

Facebook now has over one billion users, including 526 million active daily, and is available in more than 70 languages.  Facebook boasts as many as "7.5 million under the age of 13. Additionally, Consumer Reports survey projects that more than 5 million Facebook users are 10 years old or younger. That Facebook friend might be 10 years old, and other troubling news, CONSUMER REPORTS http://www.consumerreports.org/cro/magazine-archive/2011/june/electronics-computers/state-of-the-net/facebook-concerns/index.htm (last visited June 22, 2012).

in order to comment on online stories on the Indianapolis Star's web site, commenters must now do so through their Facebook accounts. The Indianapolis Star,FACEBOOK, http://www.facebook.com/indianapolis.star (last visited June 22, 2012). The same goes for certain popular political web sites like Politico. Ben Smith, FacebookComments, POLITICO, http://www.politico.com/blogs/bensmith/0811/Facebook_comments.html (last visited June 5, 2012). . By March 2012, more than 125 billion `friend' connections had occurred on Facebook alone. See Facebook Newsroom. And, as evidenced by the "Arab Spring" uprisings in the Middle East, sites like Facebook and Twitter have helped animate numerous social movements. See William Saletan, Springtime for Twitter: Is the Internet Driving the Revolutions of the Arab Spring?, Slate, http://www.slate.com/articles/technology/future_tense/2011/07/springtime_for_twitter.html (last visited June 5, 2012

A new concern is that social networking, chat rooms, and instant messaging programs have effectively created a "virtual playground" for sexual predators. This fear is reinforced by countless news stories, many criminal cases, and television shows like MSNBC's "To Catch a Predator" — which, as the State notes, "sadly never seems to run out of material for new episodes." (Dkt. #47 at 1); see also United States v. Henzel, 668 F.3d 972, 973 (7th Cir. 2012) (defendant challenged sentence that this Court issued after defendant raped 12-year-old victim after luring her across state lines using a chat room frequented by fans of online video games). 

Today certain statistics paint a startling picture of the pervasiveness of online sexual exploitation of minors. According to one 2006 report funded through a grant issued by the United States Congress, one in seven youths has received online sexual solicitations and one in three youths has received online exposure to unwanted sexual material. Janis Wolak et al., Online Victimization of Youth: Five Years Later, NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN (http://www.missingkids.com/en_US/publications/NC167.pdf) (last visited June 5, 2012). Simply stated, the real world and the virtual world can be dangerous places for vulnerable minors.

Given this backdrop, numerous states, including Indiana, have attempted to combat online sexual exploitation.Indiana Code § 35-42-4-12, in its entirety, reads as follows:

(a) This section does not apply to a person to whom all of the following apply:

(1) The person is not more than:

(A) four (4) years older than the victim if the offense was committed after June 30, 2007; or

(B) five (5) years older than the victim if the offense was committed before July 1, 2007.

(2) The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term "ongoing personal relationship" does not include a family relationship.

(3) The crime:

(A) was not committed by a person who is at least twenty-one (21) years of age;

(B) was not committed by using or threatening the use of deadly force;

(C) was not committed while armed with a deadly weapon;

(D) did not result in serious bodily injury;

(E) was not facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC XX-XX-XX-X(1)) or a controlled substance (as defined in IC XX-XX-X-X) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and

(F) was not committed by a person having a position of authority or substantial influence over the victim.

(b) This section applies only to a person required to register as a sex or violent offender under IC 11-8-8 who has been:

(1) found to be a sexually violent predator under IC XX-XX-X-X.5; or

(2) convicted of one (1) or more of the following offenses:

(A) Child molesting (IC XX-XX-X-X).

(B) Child exploitation (IC XX-XX-X-X(b)).

(C) Possession of child pornography (IC XX-XX-X-X(c)).

(D) Vicarious sexual gratification (IC XX-XX-X-X(a) or IC XX-XX-X-X(b)).

(E) Sexual conduct in the presence of a minor (IC XX-XX-X-X(c)).

(F) Child solicitation (IC XX-XX-X-X).

(G) Child seduction (IC XX-XX-X-X).

(H) Kidnapping (IC XX-XX-X-X), if the victim is less than eighteen (18) years of age and the person is not the child's parent or guardian.

(I) Attempt to commit or conspiracy to commit an offense listed in clauses (A) through (H).

(J) An offense in another jurisdiction that is substantially similar to an offense described in clauses (A) through (H).

(c) As used in this section, "instant messaging or chat room program" means a software program that requires a person to register or create an account, a username, or a password to become a member or registered user of the program and allows two (2) or more members or authorized users to communicate over the Internet in real time using typed text. The term does not include an electronic mail program or message board program.

(d) As used in this section, "social networking web site" means an Internet web site that:

(1) facilitates the social introduction between two (2) or more persons;

(2) requires a person to register or create an account, a username, or a password to become a member of the web site and to communicate with other members;

(3) allows a member to create a web page or a personal profile; and

(4) provides a member with the opportunity to communicate with another person.

The term does not include an electronic mail program or message board program.

(e) A person described in subsection (b) who knowingly or intentionally uses:

(1) a social networking web site; or

(2) an instant messaging or chat room program;

that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet offense, a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior unrelated conviction under this section.

(f) It is a defense to a prosecution under this section that the person:

(1) did not know that the web site or program allowed a person who is less than eighteen (18) years of age to access or use the web site or program; and

(2) upon discovering that the web site or program allows a person who is less than eighteen (18) years of age to access or use the web site or program, immediately ceased further use or access of the web site or program.

Indiana Code § 35-42-4-12 (emphasis added). The focal point of Mr. Doe's challenge to the statute was subsection (e), which makes it a Class A misdemeanor for certain sex offenders (those described in subsection (b)) to knowingly or intentionally use "a social networking web site" or "an instant messaging or chat room program" if the offender knows that minors are allowed "access or use" of that site.

Mr. Doe wanted to: (1) use Facebook to monitor his teenage son's social networking activity; (2) participate in certain political speech online that requires social networking accounts; (3) advertise for his small business using social networking; (4) view photographs and videos of family members who are scattered throughout the United States; and (5) participate in certain communications and petitions relevant to pilots (Mr. Doe is also a pilot).

Doe made a facial challenge to the statute at issue on First Amendment grounds. The statute,subsection (e), bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity. The sites include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.

Facebook, Twitter, Google Plus, and the like are important communication tools, but Mr. Doe still has myriad feasible alternative forms of communications at his disposal, including the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults). The Court readily concedes that social networking is a prominent feature of modern-day society; however, communication does not begin with a "Facebook wall post" and end with a "140-character Tweet."

For the above reasons, the Court DENIED Mr. Doe's Motion for Preliminary Injunction and his request for permanent relief in the form of a declaratory judgment and a permanent injunction. Final judgment entered in favor of the State

John Doe v. PROSECUTOR, MARION COUNTY, INDIANA

Case No. 1:12-cv-00062-TWP-MJD.

United States District Court, S.D. Indiana, Indianapolis Division.

June 22, 2012.

http://scholar.google.com/scholar_case?case=8332958729138878475&q=Facebook&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2012 (last viewed, 09/18/2013)

TORT TALK: NJ Case Opens Door (in NJ) For Liability of Text Messaging

TORT TALK: NJ Case Opens Door (in NJ) For Liability of Text M... http://www.torttalk.com/2013/09/nj-case-opens-door-in-nj-for-liability.html?spref=tw