LENGTH: 7876 words

HEADLINE: A.A. et al v. State of New Jersey et al,
CRIMINAL PRACTICE -- Megan's Law -- Sexual Assault

CASE-INFO: No. 01-4804; United States District Court (DNJ); opinion by Irenas, U.S.D.J.; filed December 6, 2001. DDS No. 14-7-8940

BODY:
Plaintiffs, all of whom have been convicted of sex offenses in New Jersey and are subject to registration and community notification pursuant to Megan's Law, instituted this suit challenging the constitutionality of Article IV, § 7, paragraph 12 of the New Jersey Constitution and recent amendments to Megan's Law authorizing the development and maintenance of "a system for making certain information in the central registry ... publicly available by means of electronic Internet technology." N.J.S.A. 2C:7-12 to -19 (Internet Registry Act). Soon after filing an initial complaint, plaintiffs submitted an application for preliminary injunctive relief seeking to prevent the implementation of New Jersey's Internet sex offender registry, which is statutorily authorized to become effective on January 1, 2002.

First, plaintiffs allege that the Internet Registry Act, by allowing unlimited public access to certain information collected pursuant to Megan's Law registration provisions, violates their constitutional right to privacy in (1) their home addresses; and (2) the totality of the information assembled and posted in the Internet sex offender registry. Second, plaintiffs contend that the retroactive application of the Internet Registry Act to those members of the plaintiff class whose underlying sex offense was committed prior to the law's enactment violates the ex post facto and double jeopardy clauses of the U.S. Constitution. I. Following registration, each sex offender is classified according to his risk of reoffense and the need for community notification. The prosecutor of the county where the offender resides and the prosecutor of the county in which he was convicted jointly determine, based on a matrix of criteria identified in the Megan's Law guidelines, whether the registrant poses a low (tier one), moderate (tier two) or high (tier three) risk of reoffense. N.J.S.A. 2C:7-8(d)(1).

Pursuant to the law's existing system of community notification, registration information is not made available to the general public, but is distributed to classes of persons with a statutorily defined need for the information depending on the classification tier assigned to each registrant. As currently defined by the statute, need for the information is based on the reasonable likelihood that an individual or group will encounter the registrant. Entitlement to notification under the "likely to encounter" standard is generally based on geographical proximity to an offender's place of residence and/or places he is likely to frequent.

While breadth of notification is generally left to the discretion of the two county prosecutors (subject, of course, to judicial review), the distribution of notification must comply with the notification guidelines promulgated by the attorney general and ultimately approved by the Third Circuit. See Paul P. v. Verniero, 227 F.3d 98 (2000). Two forms of notification are distributed: an unredacted form and a redacted form. The unredacted notices contain the exact home address of the Megan's Law registrant along with the registrant's name, photograph, description, license plate number, vehicle description and sex-offender status. The redacted version of the notice form contains all of this information, but replaces the registrant's exact street address with more general information such as the block number or intersection nearest the offender's residence.

As amended, paragraph 12 of Article IV, § 7 of the New Jersey Constitution of 1947, reads:

Notwithstanding any other provision of this Constitution and irrespective of any right or interest in maintaining confidentiality, it shall be lawful for the Legislature to authorize by Law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex offense. The scope, manner, and format of the disclosure of such information shall be determined by or pursuant to the terms of the law authorizing the disclosure.

Following adoption of this amendment, both houses of the New Jersey Legislature enacted the Internet Registry Act. The act contains its own set of provisions governing the content of the Web site and scope of disclosure and designating those registrant's to whom it will apply. The most significant feature of this recent legislation and that which forms the central basis of all of plaintiffs' challenges is the undifferentiated disclosure authorized by the act. The Legislature has specifically declared that "the public may, without limitation, obtain access to the Internet registry to view an individual registration record, any part of, or the entire internet registry."

The act does not make available on the Internet information about all of the sex offenders registered in New Jersey. Those subject to its provisions consist of a more limited subset of comparatively more dangerous sex offenders, including tier three (high-risk offenders) and, with certain exceptions, tier two (moderate-risk offenders) as to whom a court has ordered community notification. 2C:7-13(b) and (c). The Internet registry does not contain registry information of tier one (low-risk offenders) or those tier 2 offenders as to whom a court has ordered no notification. 2C:7-13(f). In addition, certain moderate-risk offenders who have committed only a single offense are excluded from the act, including (1) juveniles who have been adjudicated delinquent for a sex offense; (2) registrants who have violated N.J.S.A. 2C:14-2 9 (sexual assault) or 2C:14-3 (sexual contact) where the offender was related to the victim by blood or affinity to the third degree or was a foster parent, a guardian or stood in loco parentis within the victim's household; and (3) registrants who violated such sections if the victim assented to the commission of the offense, but by reason of age was not capable of giving lawful consent. 2C:7-13(d)(1)-(3). The state may, however, override these exemptions on a showing, by clear and convincing evidence, that "the risk to the general public posed by the registrant is substantially similar to that posed by offenders whose risk of reoffense is moderate and who do not qualify under the enumerated exceptions." 2C:7-13(e).

The particular information contained in the registry, while somewhat more detailed, is similar to the information provided in the unredacted community notification flyers distributed to those "likely to encounter" an offender under the current system of community notification, with a few exceptions. The Internet registry will include (1) the offender's name and any aliases used by the offender; (2) any Megan's Law sex offenses committed by the offender, including a brief description of the date and location of disposition of any offense; a general description of the offender's modus operandi, if any; (3) the determination of whether the risk of reoffense by the offender is moderate or high; (4) the offender's age, race, sex, date of birth, height, weight, hair, eye color and any distinguishing scars or tatoos; (5) a photograph of the offender and the date on which the photograph was entered into the registry; (6) the make, model, color, year and license plate number of any vehicle operated by the offender; and (7) the street address, zip code, municipality and county in which the offender resides. 2C:7-13(g). However, unlike the notification fliers distributed under the current system of community notification, the Internet registry will not include information about an offender's place of employment or schooling.

In enacting the law, the Legislature declared that "public access to registry information is intended solely for the protection of the public and is not intended to impose additional criminal punishment upon any convicted sex offender." 2C:7-12. Consistent with this purpose, the act contains certain provisions designed to limit misuse of the registry for purposes inconsistent with the act's purpose in promoting public safety. For instance, the law expressly prohibits the use of registry information for the purpose of "applying for, obtaining, or denying health insurance, insurance, loans, credit, education, scholarships, or fellowships, benefits, privileges or services provided by a business establishment (unless for a purpose consistent with the enhancement of public safety), or housing or accomodations." 2C:7-16. The act also requires the posting of warnings that misuse of registry information to "threaten, intimidate, or harass" may be subject to prosecution and establishes new criminal offenses proscribing the use of registry information to commit a crime or disorderly persons offense. 2C:7-14(a). Finally, the act authorizes the attorney general or county or municipal prosecutor having jurisdiction, or any persons aggrieved by "a pattern or practice of misuse" of the registry, to bring legal action for appropriate relief. 2C:7-16(d).

(N.J.S.A. 2C:7-14(c) provides that "any person who uses information inclosed pursuant to this act to commit a crime shall be guilty of a crime of the third degree. Any person who uses information disclosed pursuant to this act to commit a disorderly persons offense shall be fined not less than $500 or more than $1,000, in addition to any other penalty or fine imposed." To assist in the prosecution of such offenses, the act further provides that "evidence that a person obtained information about an offender from the Internet registry within one year prior to committing a criminal offense against that offender shall give rise to an inference that the person used information in violation" of this provision. 2C:7-14(e).)

II. The ex post facto clause prohibits the retroactive application of a law that inflicts a greater punishment, than the law annexed to the crime, when committed. The double jeopardy clause forbids "multiple punishments for the same offense." Because "punishment" is generally presumed to have the same meaning for purposes of both constitutional provisions, the threshold issue for purposes of evaluating both claims is whether the challenged measure constitutes punishment.

In evaluating plaintiffs' ex post facto and double jeopardy claims, the court applies the two-prong inquiry articulated in United States v. Hudson, 522 U.S. 93 (1997), against the background of the Third Circuit's analysis in E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997). The first prong of this two-step inquiry requires the court to ascertain whether the Legislature, in enacting the legislative measure, indicated either expressly or impliedly a preference for one label or the other. If this court concludes that the Legislature's manifest intent was to impose additional criminal punishment, the inquiry ends. If, however, the court determines that the Legislature did not intend the statute to be considered punitive but rather sought to accomplish remedial or regulatory goals, the court must inquire whether the statute is nonetheless so punitive either in purpose or effect that it should be considered to constitute punishment.

A. Here, the Legislature has made the remedial purposes of the legislation unmistakably clear. Recognizing that "knowledge of whether a person is a convicted sex offender at risk of reoffense could be a significant factor in protecting oneself and one's family, or those in care of a group or community organization, from recidivist acts of" convicted sex offenders, the Legislature has authorized the posting on the Internet of certain registry information about a subset of Megan's Law registrants who are determined to present a particularly high risk of reoffense in order to enable susceptible members of the public "to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk." 2C:7-12. Indeed, the Legislature has expressly disavowed any intent to inflict additional punishment on plaintiffs for their past conduct. Public access to the Internet registry, the act's preamble explains, "is intended solely for the protection of the public, and is not intended to impose additional criminal punishment upon any convicted sex offender." Id.

As the attorney general explains, the Internet registry supplements the existing system of community notification by making certain registry information about particularly dangerous registrants available to individuals who do not reside within close geographical proximity to such offenders but nevertheless may at some point have a particular need for the information to avoid becoming the victim of an offender's recidivist criminal acts. Consistent with this purely remedial purpose, the Legislature has proscribed additional criminal penalties to deter the misuse of the information for purposes inconsistent with the act's nonpunitive goals. See 2C:7-16. In addition, the Legislature has exempted certain registrants from the act's provisions where it has determined, based on the relative low risk of reoffense posed by a particular offender, that making such information "available to the general public via the Internet would not necessarily serve the public safety purposes of the law." 2C:7-13(d) (1)-(3).

B. Having concluded that the actual legislative purpose in enacting the Internet Registry Act was remedial, the court turns to the "effects" prong to determine whether, notwithstanding the Legislature's declared remedial intent, the statute should be regarded as punitive for purposes of the ex post facto and double jeopardy clauses. The relevant factors that provide "useful guideposts" are:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment -- retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may be connected is assignable for it; (7) whether it appears excessive in relation to the alternative purpose assigned. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963).

(1) The Internet registry does not work an affirmative disability or restraint in the sense traditionally associated with punishment. The disclosure of registry information does not involve any direct, government-imposed disability or restraint analogous to those the Supreme Court has deemed to be punitive. See E.B., 119 F.3d at 1101 (a registrant's ability to live and work in a community, to move from place to place, to obtain a professional license or to secure government benefits).

Moreover, in considering the Kennedy factors, including whether the statute imposes an affirmative disability or restraint, the court must evaluate the purpose and effect of the statute on its face. In arguing that the act imposes affirmative disabilities on those subject to the Internet registry, plaintiffs point to the severe social consequences that may accompany public disclosure of a registrant's offense, including lost employment and housing opportunities and an increased risk of unlawful private violence, threats and harassment. These "practical hardships," however, cannot be directly attributed to the operation of statute itself, but are rather, as the Third Circuit observed in E.B., the "indirect effects" of the disclosure -- "actions that members of the community may take as a result of learning of the registrant's past, his potential danger, and his presence in the community." 119 U.S. at 1102-03. On its face, the statute merely mandates that certain accurate registry information about a subset of Megan's Law registrants be made available to the general public via the Internet. Any "punitive effects," such as ostracism or incidents of private violence, are therefore incidental to the Legislature's overriding remedial purpose of providing "susceptible members" of the public with the information they need to take precautions to protect themselves and their families and are more directly the consequence of the public reaction to the registrant's conviction.

The legislation, by its terms, neither condones nor tolerates the potentially adverse social consequences that may follow disclosure. Indeed, as previously noted, the act contains a number of provisions designed to minimize any unintended negative consequences resulting from public disclosure. Warnings and newly proscribed criminal penalties serve to deter misuse of registry information for purposes inconsistent with the nonpunitive goals of the legislation. The law also expressly prohibits use of registry information in denying "health insurance, insurance, loans, credit, education, scholarships or fellowships, benefits, privileges or services provided by any business establishment (unless for public safety purposes), or housing or accommodations." N.J.S.A. 2C:7-16(c). Accordingly, because the "practical hardships" to which plaintiffs make reference come about as incidental to a valid remedial solution to a serious public safety problem -- protecting the public from the danger of recidivism by sex offenders -- this factor does not support classification of the act as a punitive measure.

(2) The second Kennedy factor asks whether, from a historical perspective, the legislative measure has been viewed as punishment. As the Third Circuit observed in E.B., "where analogous measures have traditionally been regarded by our society as serving punitive purposes," there may be "an objective basis for regarding the measure as punishment" despite the Legislature's avowed non-punitive intent. 119 F.3d at 1093.

In addressing this factor, plaintiffs attempt to draw what is by now a familiar comparison between public disclosure of registry information and historic forms of punishment such as public shaming, humiliation and banishment.

Facilitating public dissemination of registry information more closely resembles, albeit imperfectly, the "wanted posters" of the frontier days or the old "hue and cry" of colonial times, both designed to alert the public to the presence of a potentially dangerous felon in the community so that individuals could protect themselves and their families and assist law enforcement in their apprehension. As the Third Circuit has observed, these traditional government warnings, like the disclosure of registry information about moderate- and high-risk sex offenders, "communicate not only facts about past events but also the fact that a public agency has found a significant future risk based on those events." E.B., 119 F.3d at 1101. In any event, absent a closely analogous historical precedent, the court is unwilling to conclude that this factor meaningfully contributes to the "clear proof" required to overcome the presumption in favor of the Legislature's stated remedial purpose.

(3) The third Kennedy factor directs the court to consider whether the act is triggered only on a finding of scienter. Traditionally, sanctions conditioned on a finding of mens rea are generally likely to be considered criminal rather than civil in nature. Conversely, statutory measures that apply without regard to an individual's mental culpability to achieve some broader public interest unconnected to fault are considered civil in nature.

The Supreme Court's analysis in Hudson suggests that the relevant inquiry when considering this factor is whether the act's requirements may be imposed only on a finding of scienter.

Here, it cannot be said that the provisions of the Internet Registry Act come into play only on a finding of scienter. As is true of the system of registration and notification generally, those who are potentially subject to having their registration information posted on the Internet registry include not only those convicted of a criminal offense incorporating a mens rea component, but also those who have evidenced their propensity for recidivism and continuing danger to the community through conduct resulting in an acquittal by reason of insanity. 2C:7-2(a). Accordingly, this factor does not support the classification of the act as punishment.

(4) The fourth factor in the Kennedy analysis -- whether the act promotes the traditional aims of punishment -- does not point conclusively in favor of either classification. The prospect of having one's criminal history, along with various pieces of identifying information, assembled and posted in an Internet registry accessible to the general public may presumably deter some persons from perpetrating sex offenses. However, any deterrent effect attributable to the act is merely incidental to the statute's stated remedial purpose. Moreover, as the Supreme Court has noted, the fact that a statute intended by the Legislature to accomplish prospective, remedial purposes may incidentally serve to deter others who might otherwise emulate the conduct of those subject to the act does not necessarily lead to the conclusion that the legislative measure must be classified as punitive. Many purely remedial legislative measures may serve to convince those who would prefer not to be subject to the provisions to refrain from engaging in conduct that could potentially subject them to the statute's provisions. Indeed, as the Supreme Court has observed, to hold that the mere presence of a deterrent purpose renders sanctions "criminal" for double jeopardy purposes would severely undermine the government's ability to engage in effective regulation. Hudson, 522 U.S. at 496.

Moreover, the act's purpose cannot fairly be characterized as retributive. See Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235. As is true of Megan's Law generally, the act does not "affix culpability for prior conduct," but rather considers the fact of such conduct, along with other factors, in the tier classification process to make an individualized assessment of the extent to which the registrant poses a continuing risk to the community. Although all those convicted of certain enumerated sex offenses (as well as those acquitted by reason of insanity) are required to register, the Internet registry is reserved for those registrants determined to pose the greatest risk of reoffense. Only those for whom the risk of reoffense is moderate or high are subject to having their registration information made available in the Internet registry. Disclosure under the act is, in this way, calibrated to the individual registrant's propensity for future sexually deviant behavior and is entirely consistent with the prospective, remedial purpose of the act.

(5) The fifth Kennedy factor examines whether the conduct to which the statute's provisions apply is already punishable as a crime. Here, as is true of the registration and notification provisions generally, only those found to have engaged in conduct that is also proscribed by criminal statute may be subject to the provisions of the Internet Registry Act. This feature of the challenged legislation, therefore, appears to provide some support for the contention that the purpose or effect of the act is to impose criminal punishment. However, the Supreme Court has also long held that the Legislature "may impose both a criminal and a civil sanction in respect to the same act or omission." U.S. v. Usery, 518 U.S. 267, 292 (1996). In light of this observation and the legitimate prospective, remedial goals the act is intended to achieve, this factor does not point decisively in favor of any particular classification. Because this factor is inconclusive, only limited weight is ascribed to this feature of the legislation.

(6) The final two factors under the Kennedy analysis require the court to determine whether there is a prospective, remedial purpose that can reasonably be assigned to the act and, if so, whether the means employed to achieve the goals of the statute appear excessive in relation to the alternative nonpunitive purpose assigned. Plaintiffs concede, as they must, that the state has a compelling interest in protecting the public from the recidivist acts of sex offenders that justifies disclosing registration information beyond law-enforcement personnel to those members of the public who are reasonably certain to encounter a registrant or who otherwise have a legitimate public safety-related need for the information. However, they argue that the unlimited scope of disclosure authorized by the act unnecessarily intrudes on their privacy interests insofar as it dispenses with any limitations on the dissemination of this information to persons for whom a particular offender may be of no concern. The central thrust of plaintiffs' argument, therefore, is that the absence of a "reasonable fit" between the legitimate public safety goals of the legislation and the method of notification employed converts what the Legislature has deemed purely remedial into punitive within the meaning the ex post facto and double jeopardy clauses.

This argument is unpersuasive for two reasons. First, as the preceding analysis makes clear, a careful examination of the other Kennedy factors provides little, if any, support for classifying the Internet Registry Act as a punitive measure. Plaintiffs are, therefore, left to argue that the "excessiveness" of the public disclosure authorized by the act alone suffices to overcome the presumption in favor of the Legislature's stated remedial intent. However, while there is some language in the Third Circuit's opinion in E.B. suggesting that the excessiveness of notification in relation to the legitimate remedial purposes of the statute may be dispositive on issue of whether the statute inflicts "punishment," the Supreme Court has since expressly disapproved of an approach that assigns dispositive weight to any single factor outlined in Kennedy. The court is, therefore, unwilling to conclude based on this factor alone that plaintiffs have sufficiently demonstrated a reasonably likelihood of adducing the "clearest proof" necessary to negate the express remedial intent of the Legislature.

Second, in evaluating the significance of this factor, the relevant question is whether the disclosure of registry information beyond that which is fully supported by the legislation's legitimate remedial purposes renders the statute so exceedingly severe as to overcome the presumption in favor of the Legislature's state remedial intent. This question is distinct from the issue of whether the act, by expanding notification beyond those with a particular need for the information, unnecessarily infringes on plaintiffs' privacy interests. Even were the court to accept that allowing unlimited access to the Internet registry impermissibly intrudes on plaintiffs' privacy interests, this would not necessarily compel the conclusion that the "effects -- or 'sting' -- of a measure is so harsh 'as a matter of degree' that it constitutes punishment." See Artway v. Attorney General of the State of New Jersey, 81 F.3d at 1266.

The state has a "compelling interest," the Third Circuit has recognized, in protecting the public that fully justifies disclosure of information about "moderate" and "high risk" sex offenders to numerous individuals in the general public under the existing community notification guidelines.

The court is, therefore, unwilling to conclude that plaintiffs have adequately demonstrated a reasonable likelihood of adducing the "clear proof" necessary to negate the Legislature's expressly stated remedial intent and classify the act as "punishment" for purposes of the ex post facto and double jeopardy clauses. Accordingly, plaintiffs' motion to enjoin the retroactive application of the Internet Registry Act to those members of the plaintiff class convicted of a sex offense prior to the law's enactment is denied.

B. The crux of plaintiffs' privacy claims centers on the implications of the undifferentiated disclosure of registration information via the Internet. Specifically, plaintiffs contend that unlimited public access to plaintiffs' home addresses under the Internet Registry Act cannot be reconciled with recent Third Circuit precedent regarding the permissible scope of Megan's Law notification. Plaintiffs further argue that the act violates their as-yet-unrecognized right to privacy in the compilation of the information contained in the Internet registry.

While the full scope of constitutionally protected privacy rights has not been precisely delineated, the types of privacy interests entitled to constitutional protection can be grouped into two categories: (1) the individual interest in avoiding disclosure of personal matters ("confidentiality interest") and (2) the interest in independence in making certain kinds of important decisions without governmental interference ("autonomy interest"). The privacy claims asserted here invoke the first category of constitutionally protected privacy interests, the right to control the disclosure of personal information about oneself and to insist that an individual's private affairs not be made public by the government.

Although courts have generally devoted considerably less attention to clarifying the nature and scope of protection for individual interests in maintaining the confidentiality of personal information, the Third Circuit has developed a general framework for analyzing these types of privacy claims. In determining whether information is entitled to privacy protection, the threshold question is "whether it is within an individual's reasonable expectations of confidentiality." Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 112-13 (3d Cir. 1987). Generally, "the more intimate and personal the information, the more justified is the expectation that it will not be subject to public scrutiny." Id.

The right to control access to and limit the disclosure of confidential information is not, however, absolute and must often yield to certain legitimate governmental interests. As is often true in assessing the protection to be afforded individual privacy interests, evaluating plaintiffs' privacy claims involves the delicate task of weighing the individual's interest in confidentiality against the government's interest in collecting certain information for legitimate governmental purposes. An individual may be required to furnish the government with certain confidential information where justified by proper government interests in promoting public health and safety.

The government's collection and use of otherwise confidential information necessarily entails limited disclosure of the information to those who, consistent with the proper governmental purposes, are authorized to receive it. However, as the Third Circuit has emphasized, the "fact that protected information must be disclosed to a party who has a particular need for it ... does not strip the information of its protection against disclosure to those who have no similar interest." Fraternal Order of Police, 812 F.2d at 118. In order to maintain the crucial constitutional balance between an individual's interest in preserving the confidentiality of protected information and the state's legitimate interests in collecting and sharing such information with those who have a proper and specific need for it, the court has frequently required that the government implement reasonably adequate safeguards to limit the unnecessary disclosure of confidential information to those with no particular need for the information.

Applying this analytical framework, the Third Circuit ultimately upheld the current system of community notification against the claim that public disclosure of information collected pursuant to Megan's Law impermissibly infringes on the registrants' constitutionally protected privacy interests. See Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999) (Paul P. I); Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000) (Paul P. II). The court accepted the claim that registrants' possess a "non-trivial" privacy interest in the confidentiality of their precise home address that is entitled to constitutional protection. See Paul P. I, 170 F.3d at 404. In addressing the nature and significance of state interests underlying the notification provisions, the court was presented with a somewhat novel situation. As the court subsequently recognized in Paul P. II, the "unique" purpose of the notification provisions of Megan's Law -- supplying members of the public with information collected by the state about individuals in their community -- distinguished the legislation from the limited intergovernmental disclosure it had upheld in its previous decisions.

However, whereas the narrow state interests articulated in Fraternal Order of Police had been insufficient to justify public disclosure of the private information being collected by the state, the court concluded in Paul P. I that the state had a "compelling interest" in extending the disclosure of registration information, including each registrant's precise home address, beyond law-enforcement personnel to the public so that "susceptible individuals can appropriately be cautioned." 170 F.3d at 404. The court, explicitly weighing the state's legitimate interest in promoting public safety against the privacy interests of those required to register under the act, found that this compelling state interest outweighed the individual registrants' limited "non-trivial" privacy interest in preventing the public disclosure of their home addresses.

The court emphasized, however, that the privacy interests of individual registrants, while limited, were nonetheless entitled to protection from disclosure to members of the public with "no particular need for the information." Id. at 406. Accordingly, the court, while holding that the Megan's Law notification provisions were constitutional on their face, remanded the case back to this court with explicit instructions to consider whether "plaintiff's interest in assuring that information be disclosed only to those with a need for it has been accorded adequate protection." Id. at 406.

As is clearly evident from the subsequent decisions of both this court and the Court of Appeals, the careful tailoring of notification in a manner reasonably calculated to limit disclosure of a registrant's home address to those with "a particular need for it" while avoiding "disclosure to those who have no similar need" was critical to maintaining the delicate constitutional balance between the individual registrants' privacy interests and the legitimate goals of the statute.

The unlimited public disclosure of registrants' home addresses authorized by the Internet Registry Act simply cannot be reconciled with the Third Circuit's holdings in Paul P. I and II. The proposed Internet registry, which the state maintains is intended not to replace but rather to supplement the existing system of notification, dispenses with any safeguards designed to carefully limit disclosure of protected information to individuals and groups with a legitimate public safety-related need for the information. As the state concedes, in making the home addresses of a subset of Megan's Law registrants available to the general public via the Internet, the act also permits access to this information by "people who will never actually encounter any registered sex offenders in New Jersey nor have any particular need for the information." In doing so, the act impermissibly strips this protected information of any protection from unnecessary public disclosure.

The state argues that the public interest in alerting individuals who are not statutorily entitled to receive this information under the current restrictive community notification system but who nonetheless run the risk of actually encountering a comparatively high-risk sex offender or otherwise have a particular need for information about such offenders justifies making the information freely accessible to these unidentified members of the public via the Internet. However, while the state may have a compelling interest in ensuring that individuals "with a particular need for the information," but not readily identifiable based on fixed criteria such as geographical proximity, have access to the information necessary to protect themselves and their families, a necessary corollary implicit in the Third Circuit's Paul P. decisions is that any broader interest in informing the public at large or the global community about the whereabouts of those previously convicted of sex offenses is significantly diminished and, in any event, does not suffice to justify the disclosure of protected confidential information to innumerable individuals without a legitimate public safety-related need for the information.

In any event, even if the court accepted that the formation of an unrestricted Internet registry better serves the state's compelling interest in ensuring that "susceptible individuals" have access to the information necessary to protect themselves and their families, the Third Circuit's Paul P. decisions make clear that disclosure of protected information to persons with a particular need for it, even where justified by a compelling state interest, does not strip the information of protection against disclosure to those who have no similar need. Plaintiffs' privacy interests in the controlling disclosure of their home addresses, while limited, are nevertheless entitled to constitutional protection against "willy-nily" disclosure to the general public. Accordingly, the court concludes that plaintiffs have clearly established a reasonable likelihood of success on the merits of their claim that the Internet Registry Act impermissibly infringes on plaintiffs' constitutionally protected privacy interests in the confidentiality of their home addresses.

(In reaching this conclusion, the court does not intend to suggest that the Third Circuit's Paul P. decisions necessarily foreclose altogether the creation of an Internet-based registry that permits access to the home addresses of particularly dangerous sex offenders to members of the public who do not reside within the court-ordered zone of notification but nonetheless have "a particular need for this information." The state may, for instance, manage to devise a password system that restricts access to the Internet registry to individuals with a legitimate public safety-related need for the information. Moreover, neither the decisions of the Third Circuit nor this court necessarily preclude the state from adopting more flexible statutory criteria that allow the state to more accurately identify those members of the community who may have "a particular need for the information.")

With the exception of plaintiffs' home addresses, none of the individual pieces of information included in the Internet registry is the type of personal, intimate information generally considered to be within an individual's reasonable expectations of confidentiality. Indeed, the Court of Appeals has specifically recognized that information regarding an individual's criminal history, as well as the basic identifying information accompanying it, is not constitutionally entitled to privacy protection. The remainder of the information included in the Internet registry is similarly generally publicly available and, therefore, not entitled to privacy protection.

Plaintiffs nevertheless contend that the Internet Registry Act, by authorizing the compilation and widespread public disclosure of a package of information that, while publicly available, would otherwise remain scattered and practically forgotten in various public records, implicates plaintiffs' constitutionally protected confidentiality interests.

In Paul P. v. Verniero, this court addressed a similar privacy claim brought against Megan's Law's original system of community notification. Relying, in part, on the Third Circuit's opinion in E.B., this court rejected the proposition that a compilation of public information implicates a constitutionally protected privacy interest that would otherwise not exist with respect to each individual piece of information but for the fact of compilation.

In support of their claim, plaintiffs rely heavily on the Supreme Court's decision in United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), as well as on the New Jersey Supreme Court's interpretation of that decision. Plaintiffs confidently predict that the Third Circuit is likely to hold, as did the New Jersey Supreme Court in Doe v. Poritz, that the "compilation and dissemination of information effected by Megan's Law notification implicates a constitutionally protected privacy interest." 142 N.J. 1, 87 (1995). The Third Circuit's treatment of these cases, however, belies this conclusion.

Both the Third Circuit and this court have repeatedly stressed that Reporters Committee is inapposite on the issue of those privacy interests entitled to protection under the U.S. Constitution. See E.B., 119 F.3d 1077, 1100, n. 21 (3d Cir. 1997); see also Paul P. I, 170 F.3d at 400 (3d Cir. 1999); Paul P. v. Verniero, 982 F.Supp. 961, 967 n. 10 (D.N.J. 1997). In Reporters Committee, the issue before the Court was "whether the disclosure of the contents of [an FBI rap sheet] to a third party 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' within the meaning of the Freedom of Information Act." 489 U.S. 749, 751. Drawing primarily from federal statutes and regulations, as well as the court's significant body of decisions regarding the scope of disclosure required under FOIA, the Court found considerable evidence of a "Congressional intent to protect the privacy of rap-sheet subjects, and a concomitant recognition of the power of compilations to affect personal privacy that outstrips the combined power of the bits of information." Id. at 749. The Court's holding clearly reflects its understanding of congressional policy, not federal constitutional law.

Plaintiffs also suggest that the Third Circuit, if given an opportunity to directly address the issue, is likely to concur with the holding of the New Jersey Supreme Court in Doe v. Poritz recognizing a constitutionally protected privacy interest in preventing the compilation and dissemination of otherwise public information. See 142 N.J. at 84-87. In reaching its conclusion, the New Jersey Supreme Court relied exclusively on its interpretation of the Supreme Court's opinion in Reporters Committee. However, for the same reasons stated above, the Third Circuit has explicitly rejected the New Jersey Supreme Court's interpretation and application of Reporters Committee.

Apart from these decisions, plaintiffs point to no other persuasive legal authority supporting their asserted right to limit the compilation and dissemination of the totality of the information contained in the Internet registry. In the absence of persuasive contrary authority supporting the proposition that the government's compilation and dissemination of otherwise publicly available but dispersed items of personal information gives rise to a reasonable expectation of confidentiality, this court is unwilling to conclude that plaintiffs have adequately demonstrated a reasonable likelihood of prevailing on this claim. Accordingly, with the exception of plaintiffs' home addresses, plaintiffs' motion to enjoin disclosure of registry information under the Internet Registry Act will be denied.

III. Held: In light of the foregoing analysis, plaintiffs have demonstrated a likelihood of success on the merits of their claim that the Internet Registry Act violates their constitutionally protected privacy interest to the extent that it permits the unlimited public disclosure of plaintiffs' home addresses. Moreover, the court has little difficulty concluding that plaintiffs have satisfied the remaining components of the preliminary-injunction standard.

Before granting partial injunctive relief, however, the court must briefly consider whether this specific feature of the act is severable from the remainder of the legislation. Here, partially enjoining disclosure with respect to a single piece of registry information -- plaintiffs' home addresses -- can be enjoined without disturbing the core objectives of the act. A partial injunction will not prevent the state from disclosing the vast majority of identifying information contained in the Internet registry and therefore will not substantially undermine act's central purpose: providing the general public with a broad range of identifying information about persons determined to present a continuing threat to the community so that members of the public can take appropriate precautions to protect themselves, their families and those in their care. Partial injunctive relief is therefore appropriate.

Plaintiffs' motion to enjoin implementation of the Internet Registry Act is granted in part. The court will enter an order enjoining the state from granting unrestricted public access to registry information identifying the house or apartment number, street, zip code and municipality in which plaintiffs' reside pursuant to N.J.S.A. 2C:7-13(g) of the act. Plaintiffs' motion to enjoin implementation of the remaining provisions of act is denied.

-- Digested by Steven P. Bann

[The slip opinion is 27 pages long.]

For plaintiffs -- Peter A. Garcia, Acting Public Defender (Michael Z. Buncher, Deputy Public Defender). For the ACLU of New Jersey Foundation -- Jessica A. Roth (Gibbons, Del Deo, Dolan, Griffinger & Vecchione). For defendants -- John J. Farmer Jr., Attorney General (B. Stephan Finkel, Assistant Attorney General).

LOAD-DATE: December 25, 2001