Plaintiffs sued officials of the Massachusetts Sex Offender Registry Board (SORB) on theories of procedural and substantive due process under the federal and state constitutions after their names, pictures, and criminal histories were posted on the SORB website as "moved out of state." The claimants alleged errors in the reporting, both in accuracy of the information and in the propriety of the posting. The court recited the facts of one egregious case that suggested merit in the allegations of error:
[John] Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history. Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph—this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.The SORB abandoned its practice of publishing "moved out of state" records in 2015, but the superior court rejected the state's mootness defense.
Nevertheless, the Appeals Court rejected all plaintiff claims. Affirming on federal procedural due process, the court held that the defendants were entitled to qualified immunity, because federal case law has not established any clear wrong in privacy violation. Indeed, federal constitutional law points widely to the contrary. Affirming on federal substantive due process, the court held that the claimants were unable to meet the demanding "shocks the conscience" standard that can turn what otherwise might be a state tort into a violation of the Fourteenth Amendment. And reversing on claims under the Massachusetts Declaration of Rights, the court held that the defendants were entitled to sovereign immunity. The Massachusetts legislature has voluntarily abrogated sovereign immunity for claims of "threats, intimidation or coercion" under the Massachusetts Civil Rights Act, but plaintiffs did not make such claims.
The court's reasoning on constitutional law is sound, but the facts point to the continuing failure of U.S. law to keep pace with Americans' privacy expectations in the digital age, especially relative to the pace of privacy law developments elsewhere in the interconnected world. John Doe No. 106929's case is especially troubling in light of his California expungement. Expungement already is an embattled concept—cf. "ban the box" movement—in the age of the internet that never forgets and the refusal of American policymakers to engage with the right to erasure. For persons who committed crimes but served their time, that can mean stinging and enduring punishment well beyond what society and the justice system already determined was due. The consequences are even more grave when the punishment is civil in nature, not even necessarily predicated on a criminal conviction.
The state should have no more license to defame or invade privacy than any person. The common law maxim prized by the renowned Justice Oliver Wendell Holmes, Jr., himself a Bay Stater, asserts that for every wrong, the law provides a remedy (ubi jus ibi remedium). Yet where digital privacy is concerned, profitable commerce in information seems to be holding at bay common law evolution, legislative innovation, and good sense.
