White v. Baker

• Decision Date: 03 March 2010
• Docket Number: No. 1:09-cv-151-WSD.,1:09-cv-151-WSD.
• Citation: 696 F. Supp.2d 1289
• Parties: Terrence J. WHITE, Plaintiff, v. Thurbert E. BAKER, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

696 F. Supp.2d 1289

Terrence J. WHITE, Plaintiff, v. Thurbert E. BAKER, et al., Defendants.

No. 1:09-cv-151-WSD.

United States District Court, N.D. Georgia, Atlanta Division.

March 3, 2010.

Elizabeth Grace Eager, Emmet J. Bondurant, II, Nicole G. Iannarone, Bondurant Mixson & Elmore, Atlanta, GA, for Plaintiff.

Paige Elizabeth Boorman, Joseph J. Drolet, Attorney General's Office, Atlanta, GA, Winston A. Denmark, Fincher Denmark & Williams LLC, Jonesboro, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Plaintiff Terrance J. White's ("Plaintiff" or "White") Motion for Preliminary Injunction 28. The Court, having considered the memorandum submitted by the parties and the argument of counsel presented at the August 25, 2009, hearing on Plaintiffs injunction motion, now considers Plaintiffs request for preliminary injunctive relief.¹

I. BACKGROUND

In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. 42 U.S.C. § 14071. Pursuant to this legislation, each state, the District of Columbia, and the federal government enacted statutes requiring persons convicted of crimes against children and other child sex offenses to register and provide certain personal and background information as an aid to protect children from child predators. These registry statutes where upheld by the United States Supreme Court as enforceable civil regulatory enactments designed to protect the public and thus had a "legitimate nonpunitive governmental objective." Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

The Georgia General Assembly passed its child offender registration legislation in 1996. O.C.G.A. § 42-1-12 (1996) (the "Registration Act"). The statute requires sexual offenders to comply with "the registration requirements of Section 42-1-12 for the entire life of the sexual offender." Id. at subsection f(7). Specifically, the offender must provide, to the sheriff of the county in which the offender resides, the information required by O.C.G.A. § 42-1-12(a)(16). The offender must also provide to the sheriff, within 72 hours, updates to the information required by O.C.G.A. § 42-1-12(a)(16). Failure of a sex offender to comply with the requirements of the statute, including by providing the information required by subparagraph (a)(16) and updates, constitutes a felony offense punishable by a period of incarceration of not less than ten (10), but not greater than thirty (30), years.

Sections of 42-1-12 define the information required to be reported by a sexual offender to the sheriff in the county where the offender resides.² Subsection (o) provides that the information reported "shall be treated as private data" and may be disclosed only to (1) "law enforcement agencies for law enforcement purposes," and (2) government agencies "conducting confidential background checks." O.C.G.A. § 42-1-12(o). Subsection (o) further provides: "The Georgia Bureau of Investigation or any sheriff maintaining records required under this Code section shall, in addition to the requirements of this Code section regarding informing the public of the presence of sexual offenders in each community, release such other relevant information collected under this Code section that is necessary to protect the public concerning sexual offenders required to register under this Code section." Id.

In 2008, the Georgia General Assembly amended O.C.G.A. § 42-1-12(a)(16) by expanding the elements of information that a sexual offender is required to provide to the sheriff in the county where the offender resides. Before 2008, the Registration Act required that a sex offender report to the sheriff his or her name, social security number, age, race, sex, date of birth, height, weight, hair color, eye color, fingerprints, photograph, address, place of employment, place of work, vehicle identification information, and enrollment at any institutions of higher education. O.C.G.A. § 42-1-12(a)(16)(A-J). In 2008, the General Assembly added a subsection to O.C.G.A § 42-1-12(a)(16). New subsection (a)(16)(K) imposes a new information reporting requirement. In addition to the information required previously to be reported and updated, sex offenders are now required to provide and update information about their internet identity. Specifically, subsection (K) of O.C.G.A. § 42-1-12(a)(16) requires that a registered sex offender provide to law enforcement officials their "E-mail addresses, usernames, and user passwords ("Internet Identifiers" or "internet identifying information")." O.C.G.A § 42-1-12(a)(16)(K) (the "2008 Amendment"). The term "`username' means a string of characters chosen to uniquely identify an individual who uses a computer or other device with Internet capability to gain access to e-mail messages and interactive online forums." O.C.G.A. § 42-1-12(a)(21.1). The term "`user password' means a string of characters that enables an individual who uses a computer or other device with Internet capability to gain access to e-mail messages and interactive online forums." Id. at (a)(21.2)³ It is the internet identification information reporting requirements that is the subject of this case.

Plaintiff Terrance J. White ("Plaintiff" or "White") previously was convicted of sexual offenses which require him to register under O.C.G.A. § 42-1-12. On the effective date of the 2008 Amendment, Plaintiff had completed serving the sentence imposed for the sexual offense of which he was convicted and had completed the term of supervision following his release. Because the Registration Act imposes a lifetime reporting obligation to provide the information required by section (a)(16), including new subsection (K) requiring the reporting of internet identifiers, Plaintiff is obligated to comply with Section (a)(16). Plaintiff is a frequent user of the internet, including to post on blogs and to chat. In these communication activities he sometimes uses his real name. At other times he uses a pseudonym so that his discussions and online communications are anonymous.

Plaintiff brings this action under 42 U.S.C. § 1983. He claims that (i) the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-11, field or conflict preempts enforcement of the 2008 Amendment; (ii) the 2008 Amendment is a presumptively invalid content-based restriction and is a prior speech restraint, thus violating Plaintiff's First Amendment right to anonymous speech; (iii) the 2008 Amendment is unenforceable because it is void for vagueness; (iv) the 2008 Amendment infringes on Plaintiff's right to private association; and (v) the 2008 Amendment violates his Fourth Amendment rights by constituting an actual or constructive unconstitutional seizure of information. Plaintiff seeks an injunction to prohibit enforcement of the requirement for sexual offenders to provide the internet identifier information required by the 2008 Amendment.⁴

Defendants claim this matter is not ripe to be heard because Plaintiff claims only that his rights might be violated if law enforcement officials exceed their authority and use the internet identifier information to access or disclose stored communications. Defendants also claim that Plaintiff cannot show a likelihood of success on the merits because the SCA does not field preempt or conflict preempt the Registration Act's personal information reporting requirements, including the 2008 Amendment, that the 2008 Amendment does not infringe Plaintiff's First or Fourth Amendment rights, because there are sufficient state interests in collecting the information required under the 2008 Amendment, that the statute is not otherwise overbroad or vague and does not violate the ex post facto clause. Thus, Defendants argue, injunctive relief should not be granted.

The Court turns to these interesting and important issues.

II. DISCUSSION AND ANALYSIS

A. Standard for Preliminary Injunction

To be eligible for preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, a movant must show: (1) a substantial likelihood of prevailing on the merits; (2) that Plaintiff will suffer irreparable injury if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the opposing party; and (4) that if granted, the injunction would not be adverse to the public interest. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir.2005); Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034-35 (11th Cir.2001); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988).

Preliminary injunctive relief is a drastic and extraordinary remedy which should not be granted unless the movant can clearly establish each of the four elements. Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir.2003). "The burden of persuasion on all of the four requirements is at all times upon the plaintiff." Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir.1974).⁵

B. Federal Preemption

Under the Supremacy Clause, when state law conflicts, or is incompatible, with federal law, federal law preempts the state legislation. Preemption generally occurs in three ways: (1) where Congress has expressly preempted state law; (2) where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law ("field preemption"); or (3) where federal law conflicts with state law ("conflict preemption"). See Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). In this case, Plaintiff asserts that field and conflict preemption apply.

Congress does not "cavalierly pre-empt state-law causes of action." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The "presumption is that the state or local regulation of...