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A closer look at the privacy issue

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Note that there was nothing in the MySpace terms of use that said convicted sex offenders couldn't use the service, and nothing in federal or state law prevents convicted sex offenders from using social networking sites.

If you are convicted of a crime - any crime, and given probation or parole, the Judge has some latitude in restricting what you can do after release - including limiting your use of computers of computer networks, requiring that you report your computer use, or even permitting the local probation officer to examine the contents of your computer or computer use (assuming you're on your OWN computer and adhere to the terms of your probation.) These restrictions however, generally disappear after a convict has fully completed their sentence, including any probationary term.

Some states are trying to push requirements that limit sex offender's use of computers by statute, (something MySpace reportedly supports) or require that minors using social networking sites obtain parental permission, but MySpace already in theory restricts use to those over 14. The MySpaceTerms of Use merely states that:

Use of and Membership in the MySpace Services is void where prohibited. By using the MySpace Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the MySpace Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age.

Nothing here about convictions, probation, or sex offenses. But remember, you don't have a RIGHT to use MySpace. It's a private website. As a general rule they don'tit doesn't have to let you on, although it might have liability if the precluded "membership" based upon some prohibited classification - e.g., race or national origin, but that is not entirely clear.

Indeed, in creating state "registered sex offender" laws, many states mandated that they not be used for certain discriminatory purposes. Indeed, the Connecticut sex offender registry explicitly states that "any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution".

So MySpace might be within its rights to kick off sex offenders if it wants to, although they are under no legal obligation to do so, or for that matter, to police their site for improper activity. It reportedly has already removed about 7,000 profiles of registered sex offenders.

This wasn't enough for the AGs. They insisted that NewsCorp's MySpace - after kicking the people off - turn over information to the cops about the number of registered sex offenders who used to be on the sites, and other information. MySpace indicated that it was happy to produce the information - just give us a subpoena. The AGs response was not initially to walk down the hall and draft up and print a subpoena, but rather to lambaste MySpace for adhering to its privacy policy, and for complying with the federal Electronic Communications Privacy Act.

Privacy Law

The Electronic Communications Privacy Act, 18 USC 2702, limits the legal authority of "a person or entity providing an electronic communication service to the public" to disclose either the contents of electronic communications (email or IM) or subscriber information, noting:

A provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service to any governmental entity.

Of course, the statute contains certain relevant exceptions, including when the cops are armed with a subpoena, search warrant or administrative subpoena or when:

The provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.

The statute also allows the service provider to turn over records to the National Centre for Missing and Exploited Children when there is a crime involving the distribution of child pornography. But nothing about providing information about registered sex offenders just cause the cops were curious.

Now let's be clear on something. MySpace always intended to shut down the registered sex offenders. MySpace always intended to share the relevant information with law enforcement. The question was whether it would do it without a warrant.

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