FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there.1 By that, I meant that it is not my prerogative to second-guess Nebraska's policy judgments so long as those judgments are within constitutional parameters. Accordingly, I upheld many portions of Nebraska's new sex offender registration laws even though it was my firm personal view that those laws were both wrongheaded and counterproductive.

However, I had serious constitutional concerns about three sections of Nebraska's new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska's sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska's new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.

I. STATUTES AT ISSUE & PRIOR OPINION ON SUMMARY JUDGMENT MOTIONS

A. Statutes at Issue

Plaintiffs2 challenge the constitutionality — both facially and as applied — of parts of three statutes: Neb.Rev.Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010). Generally, sections 29-4006(1)(k) and (s) require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device identifiers, addresses, domain names, and Internet and blog sites used; section 29-4006(2) requires registrants to consent to the search and installation of monitoring hardware and software; and section 28-322.05 criminalizes some registrants' use of social networking web sites, instant messaging, and chat room services accessible by minors.

In relevant part, these statutes provide:

Neb.Rev.Stat. § 29-4006(1)(k) and (s):

Neb.Rev.Stat. § 29-4006(2):

Neb.Rev.Stat. § 28-322.05:

Relevant definitions are found in Neb.Rev. Stat. § 29-4001.01:5

B. Prior Opinion

In my prior memorandum and order addressing the parties' motions for summary judgment (Filing 354), I determined that the plaintiffs' facial and as-applied challenges to the above-cited statutes raised four constitutional concerns that necessitated a trial — namely, issues arising under the First Amendment, the Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment.

With regard to the First Amendment, I decided that trial was necessary as to sections 29-4006(1)(k) and (s) and 28-322.05 to determine whether the requirement that sex-offender registrants disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent and whether the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. I noted that the parties had not presented an undisputed record of material facts that "explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs' First Amendment rights." (Filing 354 at CM/ECF p. 35.)

Similarly, I reserved for trial the issue of whether section 28-322.05 is void for vagueness under the Due Process Clause and Nebraska's equivalent provision because the parties failed to present a sufficient factual record to show how this statute works. Thus, I could not determine whether the statute provides fair notice of what is prohibited and whether a limiting construction could be applied to save the statute. (Filing 354 at CM/ECF pp. 32-33.)

As to Plaintiffs' claim under the Ex Post Facto Clause, I decided that a trial was necessary to determine whether sections 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 violate that clause of the United States Constitution and the Nebraska equivalent for offenders (1) who had served their time and were no longer under criminal justice supervision as of the effective date of the laws, January 1, 2010, and (2) who had been sentenced prior to January 1, 2010, but remained under criminal justice supervision on or after that date. (Filing 354 at CM/ECF p. 11.)

Finally, I decided that the consent-to-search and consent-to-monitoring6 provisions of Neb.Rev.Stat. § 29-4006(2) are unconstitutional under the Fourth Amendment and the Nebraska equivalent, Neb. Const. art. I, § 7, as to the plaintiffs who were previously convicted of sex crimes but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. (Filing 354 at CM/ECF pp. 15-27.) However, I reserved for trial the issue of the constitutionality of Neb. Rev.Stat. § 29-4006(2) under the Fourth Amendment and the Nebraska Constitution as to those who were previously convicted of sex crimes and who were on probation, parole, or court-monitored supervision on or after January 1, 2010, as well as those persons associated with them. (Id.)

II. FINDINGS OF FACT

A. Legislative History

The challenged legislation originated in LB 97 and LB 285, which the Nebraska Legislature passed and the Governor approved in May 2009. Among other things, LB 97 amended Neb.Rev.Stat. § 29-4006 to add the search-and-monitoring provision (now § 29-4006(2)) and to add information that sex-offender registrants must report #6516 to the Nebraska State Patrol (now § 29-4006(1)(s)). LB 97 also created two new statutes — Neb. Rev. Stat. §§ 28-322.05 (criminalizing unlawful use of the Internet by a prohibited sex offender) and 29-4001.01 (definitional section). See Nebraska Laws, LB 97, §§ 14, 24, 26 (2009). LB 285 amended Neb.Rev.Stat. § 29-4006 to add what is now section 29-4006(1)(k) and amended sections 14 and 24 of LB 97. See Nebraska Laws, LB 285, § 7 (2009).

The Nebraska Attorney General's Office was the principal drafter and editor-in-chief of LB 97, which that office brought to Nebraska Senator Scott Lautenbaugh for introduction. (Ex. 156, Attorney General's 2009 Legislative Package; Ex. 301, Judiciary Committee Transcript at pp. 1-2, 4 (Mar. 11, 2009); Ex. 301, Floor Debate at p. 2 (Apr. 22, 2009).) Assistant Attorney General Corey O'Brien was the principal architect of LB 97, and in December 2008, he indicated in an e-mail to Senator Lautenbaugh that although he "would personally like to prevent [persons with prior sex offenses] from using the internet altogether, that would be unconstitutional. However, depriving them from accessing certain parts of the internet is perfectly constitutional." (Ex. 199.)

The Introducer's Statement of Intent for LB 97, which included Neb.Rev.Stat. § 28-322.05, states that it was intended to "protect children from sexual predators by strengthening penalties and bringing Nebraska's laws up to date." (Ex. 301, Introducer's Statement of Intent.) During the Judiciary Committee session on March 11, 2009, Senator Lautenbaugh stated:

(Ex. 301, Judiciary Committee Transcript at pp. 1-2, 12 (Mar. 11, 2009).)

During the Nebraska Legislature's discussion of the scope of the search-and-monitoring provisions, Senator Lautenbaugh admitted that "some of the provisions in here do seem harsh and restrictive and that's really the point .... for individuals with these particular proclivities and these particular past convictions, we do want to limit and track what they're using the Internet for to avoid a repeat offense." (Ex. 301, Floor Debate Regarding LB 97 at p. 6 (Apr. 22, 2009).) In his concluding remarks, Senator Lautenbaugh stated:

(Ex. 301, Floor Debate Regarding LB 97 at p. 18 (Apr. 22, 2009).)

B. The Doe Plaintiffs & Experts

The parties stipulate that all plaintiffs are required to register under Nebraska's Sex Offender Registration Act and are subject to the provisions of Neb.Rev.Stat. §§ 29-4001 to 29-4014, with the exception of John and Jane Does B and D-K. The parties further stipulate that these plaintiffs are required to register under Nebraska's Sex Offender Registration Act because of a conviction for one or more of the offenses enumerated in Neb.Rev.Stat. § 28-322.05(1)(a)-(k): John Does 2, 3, 4, 6, 12, 13, 17, 18, 19, 24, 27, 35. Finally, the parties stipulate that the following plaintiffs committed one or more of the offenses in section 28-322.05(1)(a)-(k) by means of a computer or electronic communications device: John Does 2, 3, 12, 17, 24. (Filing 492 at CM/ECF p. 2.)

Ten of the plaintiffs participating in this case testified at trial, as well as the plaintiffs' expert. Their testimony is summarized below.

1. Professor David Post

For the past 15 years, Professor David G. Post has taught at Temple University's law school, specializing in copyright, trademark, other intellectual property law, and cyberlaw. (Tr. 66:19-67:4.) Prior to his position at Temple, Post twice worked as a law clerk for now United States Supreme Court Justice Ruth Bader Ginsburg; worked for more than six years at a large Washington, D.C., law firm in intellectual property and "high-tech transactions" involving software developers and systems integrators; and taught at Georgetown for three years. (Tr. 69:19-70:23.) Post has published several law journal articles and a law school casebook concerning the Internet and its legal ramifications. (Tr. 67:8-68:24.)

Post testified that Neb.Rev.Stat. § 28-322.05 and the statutory definitions for "chat room," "instant messaging," and "social networking web site" in Neb.Rev.Stat. § 29-4001.01 are ambiguous, and that these definitions either cover "almost everything on the Net" or "might cover virtually nothing on the Internet," depending upon how the terms are interpreted. (Tr. 74:17-21.)

Specifically, Post testified that a "broad reading" of the definition of "chat room" in section 29-4001.01 could include "ordinary telephone service," cellular telephone service, e-mail, and SMS text messages, as well as more conventional chat rooms that fall "clearly within the bull's-eye" of the statutory definition. (Tr. 84:7-85:25.) For example, "when I send you an e-mail — an ordinary electronic mail with text and maybe a file attachment, I think as a perfectly reasonable reading of the statute that we are now engaged in a chat room interaction because there's server space on the Internet that is designated for the instantaneous exchange of texts amongst the two of us." (Tr. 85:7-13.) Further, because Amazon.com, for example, "has server space that is designated for the instantaneous exchange of text between two or more computer users," it would also qualify as a chat room under the statute. (Tr. 86:8-17, 118:23-119:12.) Post acknowledged that a chat room allows "one-to-one communication and one to many" amongst those who are "in the room." (Tr. 112:21-25.)

Post also testified that the definition of "instant messaging" in Neb.Rev.Stat. § 29-4001.01(10) could include only "old-fashioned telephone" service if the statutory language "direct, dedicated, and private communication service" means "a line of a physical piece of wire that is dedicated to our communication [which is] the way that the telephone system actually works." Alternatively, this language could include "virtually all electronic communication" if interpreted to mean "communication[] that's not publicly accessible but is only accessible to the participants." (Tr. 92:1-22.) Post stated that instant messaging is "any system that allows one-to-one communication via text," which would include Google, Gmail, Hotmail, Facebook, Yahoo Messenger, Wikipedia, and YouTube because these services allow the "virtual instantaneous transfer of texts and computer file attachments." (Tr. 93:16-94:17, 120:9-13.) Post thinks use of the word "direct" in the statutory definition of instant messaging is confusing because "anything that's traveling over the Internet .... gets broken up into tiny pieces [and] ... converge[s] virtually instantaneously on your machine later." (Tr. 123:4-25.) Post's "guess is" that the Nebraska Legislature was "trying to capture a sort of private one-to-one nature of conversation as opposed to one to many or many to one." (Tr. 124:19-25.)

Post testified that the definition of "social networking web site" in section 29-4001.01(13) has a "threshold statutory ambiguity" caused by use of the term "collection of web sites" because that phrase "could cover everything that is on the World Wide Web because the World Wide Web is itself a collection of web sites." (Tr. 95:1-24.)

(Tr. 96:8-97:9.)

Aside from the "collection of web sites" issue, Post stated that the "functionality" described in this statute is the ability "to create a ... searchable profile. If I can create a searchable profile that others can comment on or communicate with me, they can find my profile and send me a message of some kind," then it is a social networking web site within the meaning of section 29-4001.01(13). (Tr. 95:13-17.) This definition would encompass "many commercial sites that wouldn't ordinarily think of themselves as social networking but they have this functionality," such as Amazon.com, L.L. Bean, Blogspot, and WordPress. (Tr. 97:16-99:8.) All of these sites have "a way for you to post your profile and talk to other users." (Tr. 98:22-23.)

Regarding the language in section 28-322.05(1) that prohibits sex offenders from using a social networking web site, instant messaging, or chat room service "that allows a person who is less than eighteen years of age to access or use" it, Post does not know of "any instant messaging services that even purport to keep minors out. Same for chat rooms." (Tr. 77:19-23, 78:23-79:4.) Further, Post testified that anyone of any age can "access" a site, if only to read the site's terms and conditions. (Tr. 78:1-16.)

Post testified regarding the reporting requirement in section 29-4006(1)(s) of "all blogs and Internet sites ... to which the person has uploaded any content or posted any messages or information." Post testified that "cookies files" are being invisibly uploaded to web sites people visit "hundreds of times ... daily as you're ... making your way around the Net." These text files — which contain information identifying when you last visited a web site and what you did there — "are being deposited on [an Internet user's] machine and then sent to the web sites from their machine the next time they go visit and that could be considered the uploading of content" within the meaning of the statute. (Tr. 108:20-109:24.)

In Post's opinion, the combined effect of the statutes at issue (depending upon how they are interpreted) could bar individuals from: (1) communicating via text message since every commercially available text messaging system could plausibly be classified as "instant messaging" under Neb. Rev.Stat. § 29-4001.01(10) and no text messaging systems prohibit minors' access; (2) communicating via cellular or landline telephone with any third party; (3) reading any blogs or online newspapers if those sites allow users to identify themselves and communicate with others via a "comments" or "discussion" functionality; (4) joining any discussion groups, listservs, or online communities; and (5) purchasing goods or services online from any site allowing user "ratings" and comments. (Ex. 304, Expert Report of David G. Post at pp. 18-19.)

2. Does 17 & F

Doe 17 is employed by his father, Doe F, and he installs and maintains video conferencing systems and runs an online training business. Doe 17 serves as the operations manager, helping to manage public rental of the business's video equipment, as well as installing video conferencing systems for clients off-site. (Tr. 285:1-287:15.) These systems use the Internet and server space, they operate virtually instantaneously, they transmit voice files, and they use hardware in the form of a CPU or electronic communication device. (Tr. 287:15-291:12.) They are also private. (Tr. 292:1-4.) Therefore, when Doe 17 performs a diagnostic check on a video conferencing system he installs, he believes he is using an instant messaging system and chat room within the meaning of the statutes at issue. (Tr. 291:16-25.)

Because Doe F and Doe 17 sometimes work from separate locations — the business's office and Doe F's home office — they often use Google Talk instant messenger to communicate with one another, although they also frequently talk by phone. (Tr. 293:8-14, 315:1-14.) They also communicate via text messaging and an IP-based phone system for convenience and cost reasons. (Tr. 293:20-294:3, 316:5-10.) Doe 17 regularly uses e-mail in both businesses. (Tr. 299:21-25.) Doe 17 maintains his Cisco certification through that company's web site, which requires him to create an account, give personal identifying information, review lessons, and take tests. The Cisco web site also allows one to communicate with a Cisco customer service representative or technician via e-mail and live chat and with others through help forums and blogs. (Tr. 294:4-295:11.)

Doe 17 uses chat rooms and instant messaging systems for his personal online training business, but he avoids using an industry-related online forum on the topic of video conferencing called VC Talk because users must create a profile, users have the ability to communicate with other users, the site has "an age limit of 13," and he is "trying to ... in good faith comply with the current law." (Tr. 295:18-299:16.) He has built web sites for clients that he believes may qualify as "social networking web sites" or "instant messaging" within the meaning of the statutes at issue. (Tr. 300:2-21.)

Doe 17 testified that if Neb.Rev.Stat. § 28-322.05 were applied to him, his business would shut down and he would be relegated to fewer job duties than when he was on parole because he would be prevented from answering the Internet-based phone and he could not provide training because "the method of doing training is remote training all over the web. It all involves audio and text chat." (Tr. 303:2-305:1.)

He frequently interfaces with law enforcement because he is required to update his Internet identifying information regularly because he has many web sites that he maintains for clients that require him to "upload[] data" and he "constantly" needs access to technical forums to "do new research on new issues." (Tr. 308:18-309:13.) Doe F testified that Doe 17 was integral to his small business. (Tr. 326:2-327:22.) According to Doe F, if section 28-322.05 were applied to Doe 17, Doe F would have to terminate his son's employment, and Doe F could not pass the business on to his son. (Tr. 330:6-9, 332:3-16.)

3. Doe 35

While Doe 35 does not use computers, cell phones, instant messaging, or chat rooms in the course of his work, he regularly texts his wife during the day, and occasionally his mother. (Ex. 211 at 10:20-12:4, 14:6-16.) He maintains a Facebook account to keep up with old friends. (Ex. 211 at 12:13-15, 15:16-16:8.)

4. Doe 31

In his current occupation, Doe 31 provides remote desktop and server support for one client, which involves basic hardware and software troubleshooting. (Tr. 341:20-342:6.) To do his job, Doe 31 must access his client's computers remotely, which allows him to share computer files back and forth and access the Internet on others' computers. (Tr. 343:4-24.) Although his job frequently requires him to access vendor web sites by creating a profile with a user name and password, Doe 31 has never used the chat capabilities that are available on those web sites. (Tr. 344:16-346:21, 350:19-23.) Doe 31 does not post any information on web sites for either work-related or personal reasons, but he e-mails and texts family and uses a cell phone for personal and business reasons. (Tr. 351:1-352:13.)

5. Doe 21

Doe 21 is the president of a music retail company and wholesaler. (Tr. 353:22.) Doe 21 uses e-mail, Google Chat, and text messaging to communicate with customers internationally. (Tr. 354:21-355:25.) He admitted that providing his e-mail addresses and online identifiers under Neb.Rev. Stat. § 29-4006(1)(k) and (s) has not affected his ability to conduct business. (Tr. 356:14.)

6. Doe 3

Doe 3 is self-employed, running a business that sells and installs high-end car audio and video equipment and other vehicle accessories. (Tr. 360:5-15.) He has operated the business for almost two years. (Tr. 368:20-21.) He purchases inventory from online vendors through e-mail, telephone, and vendor web sites, and some of these vendor web sites require creation of a profile. (Tr. 360:21-361:6.) He also visits manufacturer web sites that allow him to communicate with the manufacturer via e-mail from the web site. (Tr. 365:7-20.)

Doe 3 conducts much of his business through car audio forums, including contacting new global clients. (Tr. 361:20-362:9.) For example, he uses DIYMA.com (Do It Yourself Mobile Audio), which permits a person to create a profile, search and view another's profile, and allows some form of communication; it also allows direct messaging functions between users. (Tr. 362:15-363:3.) Doe 3 uses these forums to solicit business, find information, and ask and answer technical questions. (Tr. 363:16-24.) These forums do not require users to prove their age in order to log in or use them. (Tr. 372:22-373:4.) Doe 3 uses these forums at least once per day as his primary source of technical data, and he uses other forums "all the time ... throughout the day." (Tr. 364:8-22.) If he were banned from these forums, he would not be able to access the full range of technical information needed or consult with car audio experts. (Tr. 373:5-17.)

Doe 3 is able to take credit card payment over the phone by having an account with the Internet-based company called Square.com, which requires him to have a profile, user name, and password, but does not allow him to communicate with other users. He also uses Craigslist to advertise and sell items for his business, as well as Facebook, a cell phone, text messaging, and e-mail. (Tr. 366:20-368:7, 374:8-11.)

For the type of high-end business he runs, his client base is not the local market. (Tr. 363:4-13, 373:19-374:7.) As Doe 3 put it, the impact of Neb.Rev.Stat. § 28-322.05 would be fatal if it meant he were banned from the forums: "[I]t would basically not allow me to ... continue the business because there isn't [sic] enough... customers located in our area to support this business." (Tr. 365:24-366:4.)

Doe 3 uses e-mail, text messaging, and web site access to communicate with his wife and children, as well as for things like his kids' basketball league, for which "all the information comes via e-mail. Looking up the schedule of games is on a web site. None of this information is hard copy anymore. Everything's electronic." (Tr. 369:6-370:7.)

7. Doe 19

Doe 19 registers in Lancaster County as a transient because his sound and light company and his coach company require him to leave Nebraska regularly to go on tours with entertainers. (Tr. 379:10-380:4.) He has operated his businesses since 2006 and 2008, respectively. (Tr. 389:5-9.) He uses text messaging and e-mail to keep in touch with tour managers, his partners, and his assistant; to send out bids to potential clients; and for personal communication. (Tr. 382:7-383:13.) Doe 19 has not used social networking because it is "nerve-wracking with all this going on." (Tr. 384:20-21.) He is also concerned that the mere use of these mediums is criminal. (Tr. 385:6-386:2.) He testified that he has not used social networking sites like MySpace and Facebook, but he needs to do so because he is "losing out because anybody that's got a band or a management company has a Facebook or a MySpace .... All bands, all artists use that." (Tr. 384:2-385:5.) Doe 19's potential clients use social networking "to advertise themselves and to also find people to fill their roles whether it be for sound and lighting or coaches or whatever." (Tr. 384:5-8.)

Doe 19 has abstained from setting up a Twitter account. (Tr. 389:13-15.) He testified that if Neb.Rev.Stat. § 28-322.05 prohibited e-mail or texting, it "would sink" his business because "[n]obody would know about me. There is no way to communicate.... [S]nail mail isn't done anymore in that kind of business so I would literally starve to death trying to find clients." (Tr. 386:24-387:9.)

8. Doe 18

Doe 18 has significant experience with both computer hardware and computer software. (Tr. 390:20-392:9.) He currently operates a computer consulting business, including removing computer viruses, upgrading hardware and software, and providing on-call support. (Tr. 392:10-20.) He communicates with clients via cell phone calls, texts, and e-mail. If a customer sends an e-mail to his cell phone, it appears as a text message on his phone, but his reply will appear as an e-mail to the client — "[i]t's technical convergence. It's ... getting harder and harder to separate the things." (Tr. 393:4-17.)

Doe 18 gains remote access to problem computers using the program LogMeIn, which has the capability to allow him to chat via text with the person on the other computer and to transfer computer files. (Tr. 394:2-395:1.) He uses manufacturer web sites to obtain technical assistance, such as the web sites for Lexmark, Dell, and IBM. (Tr. 396:25-397:5.) All of the manufacturer web sites permit some form of chat function, and he has used the chat function on the Lexmark web site to obtain technical data from a person of unknown age, gender, or location. (Tr. 397:6-398:4.)

Similar to Doe 3, Doe 18 uses online forums, such as Bleeping Computer, to get assistance with technical problems. He is concerned that such sites might be considered social networking web sites within the meaning of the Nebraska statutory scheme. For example, Bleeping Computer allows one to sign up and register an account, to maintain a profile page, to view or gain access to another's profile page, and to communicate with others in a forum. (Tr. 396:1-17, 398:5-399:2.) Doe 18 has refrained from getting LinkedIn, Facebook, and Twitter accounts because he does not know "how the law stands on that." He is also concerned about using links and forums on various technical web sites because "it's not always clear where you're going"; he "may not be ... in the public area of that company web site ... if they haven't secured their internal company information"; and he may "stumble into what might be considered a social networking web site" under Nebraska law. (Tr. 395:2-15, 400:11-22, 401:13-21, 402:19-403:9.)

Doe 18's "limited presence on the Internet" has limited his work and is "odd" for a computer consulting business. "If you don't have a presence on the Internet, you don't have a company basically speaking." (Tr. 395:2-18, 403:10-20.) If Neb.Rev. Stat. § 28-322.05 prohibited Doe 18 from using forums and manufacturer web sites, it would be difficult, if not impossible, to resolve the virus and other in-depth problems he encounters in his computer consulting business. (Tr. 401:19-402:5.)

Further, if he were unable to use a cell phone or text message, it would "significantly impact" his relationships with his family, friends, and church. (Tr. 403:21-405:1.) Doe 18 earns 80 percent of his income performing construction remodeling because he cannot generate enough income through his computer consulting business due to his "very small digital presence .... the work doesn't just spontaneously occur." (Tr. 408:4-13, 409:13-410:8.)

9. Doe 2

Doe 2 develops Internet-based applications for his employer. (Tr. 412:16-21.) His employer has "intranet," which is a company-specific social networking site used only by employees. (Tr. 413:22-415:13.) This site is "only one step removed from what Facebook does" and allows users to generate a profile, get and use a user name and password, access others' profiles, and electronically communicate with other employees. Doe 2's employer hires interns who are under 18 years old. (Tr. 414:5-23, 441:12-15.) He collaborates with other employees in New York and Wisconsin using this medium (Tr. 415:4-10), as well as through an Internet-based phone service (Voice-over IP), WebEx (which contains "an instant message type of a chat"), GoToMeeting, and instant messaging. (Tr. 416:6-418:23.) Doe 2 uses "a few hundred" online forums to post technical questions and answers. (Tr. 420:11-423:9.) These sites require you to create a profile and some of them allow users to talk to each other "through personal messages." (Tr. 422:23-423:6.)

In addition to his employment, Doe 2 also runs a computer programming and consulting business, including web site design. (Tr. 423:15-425:10.) For some of the web sites he has developed, he is the "guy on the other end" of the "chat window" who assists others. (Tr. 424:17-425:1.) He frequently uses e-mail and text messaging for his consulting work, and 10 to 15 percent of his work is done through instant messaging. (Tr. 425:11-426:8, 442:19-25.) Doe 2 uses LogMeIn, Remote Desktop Protocol, pcAnywhere, GoTo-MyPC, and a virtual private networking product by Cisco to gain remote access to clients' computers. (Tr. 419:2-420:6, 426:16-427:5.)

If Neb.Rev.Stat. § 28-322.05 prohibited Doe 2 from using social networking, such as his company internal web site, instant messaging, or chat room systems, he does not believe his consulting business could survive, and he is not sure how he could function as an employee since his co-workers are in other parts of the country. (Tr. 427:9-428:3, 431:21-433:22.) By not using Facebook and Twitter, Doe 2 is "really struggling because [he] just can't pull people in." (Tr. 430:10-24.)

Doe 2 also uses eBay and Amazon to purchase household items and books for his college-aged children, as well as Internet news sites and sites related to sex-offender laws. (Tr. 433:5-22, 439:4-6.) There are several devices in Doe 2's home that connect to the Internet, including several computers, a Blu-ray player, Xbox products (which allow users to connect with other users), and iPods. (Tr. 437:9-438:25.)

10. Doe 24

Doe 24 is on the Nebraska sex-offender registry due to a 2005 conviction for online enticement of a minor and a sentence imposed in 2006 for one year and a day. He was not put on probation or parole for that offense. (Tr. 471:3-25.) Doe 24 was sentenced to 3 to 6 years for a drug offense in October 2010 and was paroled on March 27, 2012. Doe 24's conditions of parole require him to "obey all ... laws, ordinances and orders" and "permit [his] parole officer and/or personnel of Parole Administration to conduct routine searches of [his] person, residence, vehicle or any property under [his] control, at such times as they deem necessary." (Tr. 450:15-24 & Ex. 210.) Doe 24 is not subject to a special condition of parole that would have required him to "consent to unannounced examination (search) of any and all computer(s) and/or devices to which you have access to." (Ex. 210 at p. 6.)

Doe 24 has a bachelor of science degree in business administration with a focus on management information systems, databases, and entrepreneurship, and he was previously employed as a consultant where he "would either go on site or remotely access [clients'] computers or their servers and resolve any ... IT need." To gain this remote access, Doe 24 used the Internet and often communicated with "chat features." (Tr. 454:15-25, 455:12-456:25.) He "had full access to router switches, firewalls, servers, desktops, laptops, anything that was connected to the Internet or their network." (Tr. 457:19-23.)

11. Doe 12

Doe 12 operates a specialized software development and computer consulting company for clients around the world. (Tr. 489:10-13.) Because he has clients in Europe, Asia, and South America, he communicates via chat rooms and instant messaging because it would be cost-prohibitive otherwise. (Tr. 490:23-491:9.) He uses Skype on a daily basis, which permits communication via typed text, voice-over IP, and video-over IP, as well as AOL Instant Messenger, Yahoo, and Google Talk. (Tr. 490:23-491:9.) Doe 12 has authored technical books in his field, and as a result has an author page on Amazon. (Tr. 496:15-498:6.) Amazon allows a person to view his author web site, allows him to view a profile page of another Amazon user, and permits some form of communication between these two profiles. (Tr. 498:7-18.) As with a number of the other Does, he participates in online forums, both as a consumer and as a "guru" providing expert technical data in response to questions. (Tr. 500:2-501:4.)

Doe 12 testified about how difficult it is, from a user's perspective, to know what system or protocol (SMS or Internet) is being used to communicate. For example, when Doe 12 telephones his brother in California, it rings on his brother's computer via Skype, leading to the question "where does the phone system end and the Internet and Skype begin?" Similarly, a group SMS text sent through Doe 12's Verizon account will automatically convert into an Internet-based MMS (multimedia) message "because Verizon just decided to... do that." (Tr. 535:25-537:17.) Doe 12's daughter's cell phone allowed her to "text using SMS to a particular number and then by proxy it would post it off to Twitter but the primary mechanism for all of the different clients, whether it be on the web or on my phone ... is over the Internet Protocol." (Tr. 535:14-23.) In Doe 12's view, Twitter falls within the definition of "social networking web site" in Neb.Rev.Stat. § 29-4001.01(13).

When Doe 12's step-daughter and wife were in Wisconsin for two months because of a medical problem, he and his family members used videoconferencing and "most of these technologies" to keep in touch. (Tr. 521:1-16.) He also stated that if Neb.Rev.Stat. § 28-322.05 were to go in to effect, he "would cease to exist" as far as his personal, family, and business lives are concerned. (Tr. 534:21-25.)

C. Defendants' Witnesses

1. Hemanshu Nigam

The defendants' expert witness, Hemanshu Nigam, is the founder and CEO of SSP Blue, an online safety advisory firm that provides strategic business consulting services to corporations and governments on Internet safety, security, and privacy issues. (Ex. 305.) Nigam's experience in the world of Internet security and safety spans more than 20 years, through service as the Chief Security Officer for News Corporation and as an officer involved in Internet security issues at Microsoft, as well as through prosecutorial experience involving online child pornography and child predator and child trafficking cases for the United States Department of Justice and the Los Angeles County District Attorney's Office. (See Ex. 305, Curriculum Vitae at pp. 11-15.)

Nigam recognized that "[w]hen the Internet was being created, one of the things that people were trying to do was try to create what's happening in the real world." (Tr. 188:12-14.) For example, an online "chat room," as defined in Neb.Rev.Stat. § 29-4001.01(3), is the equivalent of a "party," or any room with multiple people present, where every person in the room can talk to one another or engage in a more private one-on-one conversation off to the side. (Tr. 193:20-194:3, 253:23-254:3.)

Nigam testified that "instant messaging" is the equivalent of a private conversation between two people, with no one else listening. (Tr. 193:5-11, 254:14-18.) Finally, Nigam stated that "social networking web sites" reflect common real-world situations like book clubs or other social settings, where individuals gather with other individuals who are also members of the club or group and share things with each other. (Tr. 253:2-19.)

Nigam disagreed that the statutory terms in Neb.Rev.Stat. § 29-4001.01 could include a vast amount of the Internet. He testified that a "chat room" would not include cellular telephone service because the two operate on different "platforms" (Tr. 199:18-24), nor would it include blog postings. (Tr. 200:8-201:23.) E-mail also would fall outside the definition of chat room because each medium uses a "different language." (Tr. 202:3-7.) Nigam stated that SMS texting would not be included in the definition of "instant messaging" for several reasons — first, SMS texting and instant messaging operate using different protocols (Tr. 189:6-18), and second, the mechanics of delivery of a SMS text message and an instant message differ. A text message "goes to a company that then delivers it to you," while an instant message is sent directly to a recipient, bypassing the service-provider in the middle. (Tr. 191:16-192:12.) Therefore, Neb.Rev. Stat. § 28-322.05 would not prohibit texting. (Tr. 255:15-23.)

Nigam does not believe a "collection of web sites," as used in the definition of "social networking web site" in Neb.Rev. Stat. § 29-4001.01, means properties a company such as Google owns; rather, it means "one property and all the different pages that are associated to the site because those are the web pages that are part of that web site." (Tr. 206:17-207:5.) Nigam believes that one does not "use[ ]" a social networking web site, instant messaging, or chat room service within the meaning of Neb.Rev.Stat. § 28-322.05(1) unless they are engaging in what "all of them require which is communication." (Tr. 219:1-6.)

Regarding the language in section 28-322.05(1) that bars knowing and intentional use of a social networking web site, instant messaging, or chat room service that allows a "person who is less than eighteen years of age to access or use" it, Nigam stated that as a practical matter, one would need to look daily at the terms of use of those sites and services in order to comply with this statute, but from "a good faith perspective, [he] would be comfortable if somebody checked it the first time they actually registered and start[ed] using it." (Tr. 258:1-260:4.)

2. Scott Haugaard

Scott Haugaard is a 14-year investigator with the Nebraska State Patrol who has worked the last four years with the FBI's Cyber Crimes Task Force. (Tr. 554:12-20.) Haugaard has experience investigating online enticement, child pornography and exploitation, and other crimes against children involving the Internet. (Tr. 555:7-23.)

When assigned to online child enticement investigations, Haugaard would present himself on the Internet as a child and wait for individuals to introduce themselves. (Tr. 569:15-23.) The introduction would frequently occur via instant message through a service like Yahoo Instant Messenger. Haugaard also participated in chat rooms. (Tr. 570:3, 571:8, 572:15.) From there, the individuals would begin "grooming" their victims through communication intended to "kindle a friendship" and "build up self-esteem" in their victim. (Tr. 572:19-574:3.) Then, the individual would begin discussing sex and eventually propose a meeting "for the purposes of real physical sex." (Tr. 573:6-8.)

Haugaard testified that having a registered sex offender's e-mail addresses and Internet identifiers, as required by Neb. Rev.Stat. § 29-4006(1)(k) and (s), would allow law enforcement to remotely monitor those addresses and identifiers and link them to a specific person in the event "an investigation started." (Tr. 576:13-21.) Law enforcement officers currently use several programs and software packages that allow officers to "plug in, say, an e-mail address or a[n] instant messenger moniker ... and identify an individual." (Tr. 577:20-24.) Without this information, law enforcement officers previously could only accomplish this by searching an individual's computer. (Tr. 577:25-578:1.) Haugaard testified that even when law enforcement personnel know a sex offender's e-mail addresses or other online identifiers, any monitoring by law enforcement would not include the content of a registrant's messages or Internet activity, and such identifiers are not made public. (Tr. 576:15, 577:6-8, 578:2-4.)

III. CONCLUSIONS OF LAW

A. Facial and As-Applied Challenges

TCF Nat'l Bank v. Bernanke, 643 F.3d 1158, 1163 (8th Cir.2011). See also United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir.2010) (discussing facial and as applied challenges). In the First Amendment context, and as further explained below, facial challenges may be applied when there "is a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Roach v. Stouffer, 560 F.3d 860, 870 n. 5 (8th Cir. 2009) (internal quotation marks & citations omitted).

B. First Amendment Challenges to Sections 28-322.05 & 29-4006(1)(k) and (s)

Plaintiffs attack section 28-322.05 because that statute's partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates the plaintiffs' right to free speech under the United States and Nebraska Constitutions. Plaintiffs also challenge sections 29-4006(1)(k) and (s) because the requirement that registrants must disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent. "The parameters of the constitutional right to freedom of speech are the same under both the federal and the state Constitutions." State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829, 833 (2002).

The Supreme Court has made clear that First Amendment protections for speech fully extend to Internet communications, as well as to anonymous speech. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (explaining that the Internet allows "any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox" and that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium"); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (stating that "an author's decision to remain anonymous... is an aspect of the freedom of speech protected by the First Amendment").

States may regulate content-neutral speech7 (a) if the regulation is narrowly tailored to serve a significant governmental interest and (b) if the regulation leaves open ample alternative channels for communication of information. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). It is immaterial that the government's interest might be adequately served by some less-restrictive alternative. Id. at 798, 109 S.Ct. 2746. See also Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government's interests.").

"A statute is narrowly tailored if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy. A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil." Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (citation omitted). This standard "does not mean that a ... regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799, 109 S.Ct. 2746. "[H]owever, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." Ward, 491 U.S. at 800, 109 S.Ct. 2746.

Turner, 512 U.S. at 664, 114 S.Ct. 2445 (internal quotation marks & citation omitted).

If the challenged statute fails to meet either prong of the test — narrow tailoring or failure to leave open ample alternative channels — the statute fails. See, e.g., Olmer v. City of Lincoln, 23 F.Supp.2d 1091, 1103 (D.Neb.1998) ("The ordinance [intended to protect children from graphic visual depictions of aborted fetuses] is not narrowly tailored to serve a constitutionally important government interest. Therefore, it is unnecessary to determine whether the ordinance leaves open ample alternative channels of communication."), aff'd, 192 F.3d 1176 (8th Cir. 1999) (finding that because ordinance was not narrowly tailored, ordinance was facially unconstitutional; not considering alternative channels of communication).

At the outset, it should also be noted that the plaintiffs assert, as part of their First Amendment challenge, that the statutes are overbroad. In the First Amendment context, overbreadth is a remedial question and not a separate reason for finding that a statute violates the First Amendment.8 See, e.g., Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 Va. L.Rev. 301, 348 (2012) ("The overbreadth invalidation rule only applies to the remedial question of whether to invalidate a statute in toto — not to the initial inquiry into whether a constitutional violation exists under the relevant decision rule.") (emphasis added).

With these principles in mind, I next turn to an analysis of the challenges to sections 28-322.05 and 29-4006(1)(k) and (s). For the sake of clarity, I analyze each of these two sections separately regarding the plaintiffs' First Amendment challenges.

1. Section 28-322.05

Certain sex offenders who committed crimes against minors are banned from using social networking web sites, instant messaging, and chat room services under section 28-322.05 upon pain of a jail or prison sentence. The age of the triggering conviction does not matter. The fact that the offender has a clear record since the conviction does not matter. The fact that the offender is not under court supervision does not matter. The fact that the offender legitimately needs access to the banned sites to make his or her living does not matter. The fact that the offender legitimately needs access to the banned sites to obtain news that probably cannot be obtained in another way does not matter. The fact that the offender legitimately needs access to the banned sites to check on the health and well-being of his children while they are in a distant hospital does not matter. The fact that the offender did not use any of the banned sites to commit his or her crime does not matter.

In relevant part, the statute reads as follows:

Neb.Rev.Stat. § 28-322.05(1).

The plaintiffs admit that the State has a significant, even compelling, government interest in protecting minors online from sex offenses. Indeed, there is no doubt that minors access certain sites quite heavily. See, e.g., J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 951 (3rd Cir.2011) (en banc) (Judge Fisher, with Scirica, Rendell, Barry, Jordan, and Vanaskie dissenting) ("Twenty-three percent of teenagers between the ages of 12 and 17 who own cell phones use them to access social networking sites like My-Space and Facebook.") (citation omitted). Nonetheless, the plaintiffs forcibly argue that section 28-322.05 suppresses too much speech — that is, the statutes limit use of the "most popularly used mediums used in everyday life for all types of communication." (Filing 496, Pls.' Trial Br. at CM/ECF p. 13.)

After very careful deliberation, I decide that Neb.Rev.Stat. § 28-322.05 is not narrowly tailored. I also decide that the statute does not leave open ample alternative channels for communication of information. Recognizing that either decision is enough to invalidate the statute, I next explain my reasoning.

a. Narrow Tailoring

Whatever else the words of Neb. Rev.Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+9 together with a large number of other utilities. In order to understand the significance of the ban, it is important to understand the size and overarching presence of "social networking web sites" and "instant messaging" and "chat room" services on the Internet. Consider the following:

So far as the scope of the statute is concerned, this ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.

(i) Ban Not Dependent Upon Past Use of Social Utilities

Critically, the ban is not contingent upon the past use of the banned utilities to prey upon minors. To be specific, the ban does not require a showing that the offender used social networking web sites, instant messaging, or chat room services to prey upon children.21 Nor does it require a showing that the offender poses a present threat to use those utilities to get at children. On the contrary, the ban is triggered by the commission of a crime against children (often committed in the far-distant past) that may be entirely unrelated to whether the offender used (or threatens to use) a social networking web site, instant messaging, or chat room service to victimize minors.

In other words, the statute is not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services. The risk posited by the statute is far too speculative when judged against the First Amendment. The broad scope of the ban is a fatal deficiency. See, e.g., Doe v. Jindal, 853 F.Supp.2d 596, 607 (M.D.La.2012) (holding Louisiana's statute precluding registered sex offenders from using or accessing social networking sites, chat rooms, and peer-to-peer networks unconstitutional; "The sweeping restrictions on the use of the internet for purposes completely unrelated to the activities sought to be banned by the Act impose severe and unwarranted restraints on constitutionally protected speech. More focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued."); Note, Jasmine S. Wynton, My Space, Your Space, But Not Their Space: The Constitutionality of Banning Sex Offenders from Social Networking Sites, 60 Duke L.J. 1859, 1888-1889 (2011) ("There are less restrictive ways of serving states' compelling interest than such blanket prohibitions.... [S]tates can narrow the application of social-networking-site bans to only those sex offenders who used the Internet or social networking sites in the commission of their underlying offenses. Indeed, some states have taken this more narrowly tailored approach.").

I am aware of Doe v. Prosecutor, Marion Cnty., No. 1:12-cv-00062, 2012 WL 2376141 (S.D.Ind.2012) (holding that Indiana's ban on accessing social networking sites, instant messaging services, and chat room services by certain sex offenders did not violate First Amendment). With respect, and for numerous reasons, I am not persuaded by that decision. I will highlight only one point to illustrate my view that the Indiana judge's reasoning throughout the opinion is weak.

Central to the judge's ruling was a curious statement. The judge wrote that "Mr. Doe's argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal...." Id. at *7 (emphasis in original). Setting to one side the dubious proposition that a plaintiff making a First Amendment challenge is obligated to inform the state how to write a statute in conformity with the Constitution, there is a very easy answer to the judge's rhetorical flourish. That is, the constitutional response to the judge's concern is to narrow the statute to those who have preyed upon children using the banned sites. Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary — use a scalpel rather than a blunderbuss. For reasons that are unclear, the judge wholly ignores this seemingly obvious point.

In summary, the statute "burden[s] substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799, 109 S.Ct. 2746. The statute therefore violates the First Amendment.

(ii) Ban Expansive And Vague

But that does not end the First Amendment concern. There is another sense in which the statute is not narrowly tailored and therefore violates the First Amendment's guarantee of free speech. The statute is so expansive and so vague that it chills offenders and their associates, including individuals and entities not before the court, from using those portions of the Internet that the defendants claim are open to them. Those twin deficiencies violate the First Amendment (as well as the Due Process Clause).

Expansively written laws designed to protect children are not exempt from the constitutional requirement of clarity under both the First Amendment and the Due Process Clause:

Brown v. Entm't Merch. Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2743, 180 L.Ed.2d 708 (2011) (holding ban on sale of violent video games to minors violated the First Amendment) (Justice Alito, with Chief Justice Roberts, concurring) (emphasis added).

Several examples are illustrative of the expansive nature of the statute and its lack of clarity. I will start with a fairly simple example of the problem using "text messages" and "instant messaging" as the focal point. I will then proceed to use the defendants' proposed narrowing constructions to further highlight the lack of clarity.

The statute states that an offender covered by the statute may not "use" an "instant messaging" service. "Instant messaging" is then defined as "a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network." Neb.Rev.Stat. § 29-4001.01(11). The defendants claim that "text messages" — as opposed to "instant messages" — are not covered because those messages are not sent and received "virtually instantaneously." If "text messages" are covered, that would pose an insurmountable burden for the defendants to overcome because there are literally billions of text messages sent every day in the United States.22

Put aside, for the moment, the ambiguity of the words "virtually instantaneous." Assume, for the sake of argument, that I conclude that "text messages" are not covered by the statute because the exchange between the sender and the recipient is not "virtually instantaneous." Nevertheless, there remains a big problem.

Although the defendants are apparently unaware of the technology, "text messages" can be sent and received by instant messaging services such as Google Talk, Windows Live Messenger, and Yahoo Messenger. See Brandon De Hoyos, 8 Free Text Messaging Services, Apps23; David Pogue, The Disruptive Power of iMessage, N.Y. Times (Mar. 22, 2012) ("It started with iMessages, an iPhone/iPad app that lets you send text messages between Apple hand-held gadgets without cost. Instead of using the cellphone network (and paying 20 cents each or whatever), texts you send using this little app get sent across the Internet, costing you pretty much nothing.").24 Indeed, there is an economic incentive to use an instant messaging service to send text messages — they are "free." Does an offender who knowingly and intentionally "uses" an "instant messaging" service only for the purpose of sending or receiving "text messages" commit a crime? The defendants do not know, and neither do I.25

(iii) Proposed Narrowing Constructions Further Illustrate Vagueness

The defendants have proposed a number of limiting constructions in apparent recognition that the statute is both overbroad and vague. They are:

As an initial matter, I reject these proposed limiting constructions because the statute is not "readily susceptible" to the proposed interpretations. To be specific, the constructions are not "reasonable" or "readily apparent" from the language and history of the statute.

Ways v. City of Lincoln, 274 F.3d 514, 519 (8th Cir.2001). See also United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1592, 176 L.Ed.2d 435 (2010) (in applying limiting construction, court will not rewrite law to conform it to constitutional requirements because it would "constitute a serious invasion of the legislative domain" and "sharply diminish" the legislative body's "incentive to draft a narrowly tailored law in the first place") (internal quotation marks & citations omitted); United Food & Commercial Workers Int'l Union v. IBP, Inc., 857 F.2d 422, 431 (8th Cir.1988) (although federal courts are "generally without authority to construe or narrow state statutes," courts may adopt party's limiting construction if that construction is "reasonable and readily apparent" from language and legislative history of statute).

Nonetheless, these proposed limiting constructions are good examples of the expansive and vague nature of the statute. Without intending to cover each of the problems with these constructions, I will examine each construction in turn to illustrate my concerns.

The first proposed construction relates to the definition of "social networking web site" and "collection of web sites" and, frankly, it is among the most forceful examples of the vagueness of the statute. It proposes to define a "collection of web sites" to mean sites that share common domain names, but contain different directories or subdirectories — that is, sites that "share the same top-, second-, and third-level domain names and differ only with respect to the directories included to the right of the top-level domain name." (Emphasis added.) While I cannot fathom how anyone could have derived this limiting construction from the words of the statute or its history, and while it is apparent that the construction derives from the exigencies of this litigation rather than the words and history of the statute, the construction itself perfectly shows the lack of clarity.

What if one of the "directories" in a "collection of web sites" were to the left of the "top-level domain name" as with some Google products?26 Even more confusingly, what if you could access a seemingly innocuous "homepage" such as iGoogle, with a "directory" to the right of the "top-level domain name," but that access would seamlessly take you to a site with a "directory" to the left of the "top-level domain name" such as Google +, Google's "Facebook" equivalent?27 These are perfectly genuine questions for which the proposed construction, and the defendants, provide no answer.

The second proposed construction is a good example of this confusion as well. That construction purports to limit the word "allows" to the "terms of use" of the respective sites. It therefore delegates to a private party the meaning of the word "allows." This construction also ignores the fact that web sites may violate their own terms of use and knowingly "allow" children to use the web site despite the terms of use. See, e.g., Xanga.com to Pay $1 Million for Violating Children's Online Privacy Protection Rule (Federal Trade Commission Press Release, Sept. 7, 2006).28 Keying on the vendor's terms, rather than what takes place in practice, this proposed construction is flatly inconsistent with the plain meaning of the word "allows." Still further, the second proposed construction imposes upon the offender the obligation to read and understand29 the vendor's terms-of-use policy each time the offender uses the site.30 Importantly, this construction also fails to acknowledge that the "terms of use" may be worded in such a way as to permit change without notice. In effect, defense counsel propose that the word "allows" in the statute means whatever Google or some other vendor says it means from one minute to the next.

The third proposed construction also proves the lack of clarity. It suggests that "use" requires that the offender "communicate [] with another person on the site or service." What if the offender registered with Google+ and publicly posted a profile that invited business people to contact the offender at his business telephone number or business address, but the offender never had a "chat" on Google+ or sent a text or instant message through Google+ or responded to such a message in Google+ ? Has the offender "used" Google+ ? Again, the defendants have no answer to this basic question, and neither do I.

Without intending to be unkind, the fourth suggested construction is laughable. It states that "virtually instantaneous" — for purposes of "instant messaging" services or "chat rooms" — means "real time." What, in the world, does "real time" mean? Particularly when it comes to "text messages" sent through "instant messaging" services, the substitution of the words "real time"31 for "virtually instantaneous" is of no help whatever in clarifying the glaring ambiguity in the statute. The proposed construction is very much like a dog chasing its tail — the dog and the tail simply turn in a humorous circle.

While there are numerous other examples of the incoherence of the statute,32 the foregoing examples make the point starkly. The statute is expansive and unclear, even after good defense lawyers tried to make sense out of it. In short, it is not "narrowly tailored."

b. Ample Alternative Channels

Although the foregoing finding on "narrow tailoring" is enough to invalidate the statute, the plaintiffs also assert that the challenged statutes do not leave open comparable alternative channels of communication. "By completely foreclosing the popular and ubiquitous mediums of social networking websites, chat rooms, and instant message systems, there are insufficient remaining avenues of communication for speech on the Internet and in society." (Filing 496 at CM/ECF pp. 14-15.) The defendants respond that the use of the Internet is not entirely foreclosed. Frankly, this is a little like banning the use of the telephone and then arguing that First Amendment values are preserved because the user can (perhaps) resort to a walkie-talkie.

As a general matter, "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939). More specifically, the Supreme Court has said that even when the government has a compelling interest in restricting one channel of speech, there must be "ample alternative channels" left open. Ward, 491 U.S. at 791, 109 S.Ct. 2746 (emphasis added). The Supreme Court uses the word "ample" not as an afterthought, but as a real safeguard. See, e.g., Linmark Assoc., Inc. v. Willingboro Tp., 431 U.S. 85, 93, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (township ordinance prohibiting posting of real estate "For Sale" and "Sold" signs for purpose of stemming what township perceived as flight of white homeowners from racially integrated community violated First Amendment because alternative methods of communication, which involved more cost and less autonomy than signs and were less likely to reach persons not deliberately seeking sales information, were insufficient).

Two examples illustrate why the statute does not leave open "ample" alternative channels. One example is taken from the headlines of a recent tumultuous and fast-moving international event. The other is taken from an event that has importance only to those few who are participants, but to those folks, the incident has great significance.

First, assume for a moment that an offender subject to the ban wanted "up-to-the-minute" information on the demonstrations that took place during the "Arab Spring." Perhaps the offender's family came from the Middle East. Perhaps the offender had family still living in that region. Perhaps the offender's relative was caught up in the turmoil. "Twitter and Facebook" played "a pivotal role in broadcasting information from inside the demonstrations in Cairo's Tahrir Square and elsewhere...." Jillian C. York, The Revolutionary Force of Facebook and Twitter, Neiman Reports (Fall 2011).33 Under Nebraska's ban, the offender is barred from receiving this information from Twitter and Facebook — news that might not be available from any other source — even though the hunger for that news poses no threat to children.

Second, when Doe 12's step-daughter and wife were in Wisconsin for two months because of a medical problem, he and his family members used videoconferencing to keep in touch. Put yourself in the position of an offender and imagine if your child was in a distant hospital and you could not use Skype to talk, see, text, and instant message with her. There is simply no alternative channel — let alone an "ample" alternative — to monitor the child's health and well-being.

In sum, if the statute were narrowed to those offenders who committed their crimes using one of the apparently banned utilities, and if the statute were purged of its breadth and vagueness, Nebraska could still allow an offender the opportunity to use utilities like Facebook, Twitter, and Skype upon the offender's truly voluntary consent to the installation of monitoring hardware and software. By doing so, Nebraska could cure the "narrowing" problem while leaving open sufficient alternative channels of communication. There is not the slightest reason to believe that such a targeted solution would be insufficient to address Nebraska's legitimate, rather than speculative, concerns for children.

c. Overbreadth Challenge

A regulation prohibiting "a broad range of protected expression may be facially challenged as overbroad." Ways v. City of Lincoln, 274 F.3d 514, 518 (8th Cir.2001). The overbreadth doctrine "enables litigants `to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.'" Hill v. Colorado, 530 U.S. 703, 731-32, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)) (emphasis added).

Ways, 274 F.3d at 518.34

"The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Section 28-322.05(1) makes it a crime for registered sex offenders to "knowingly and intentionally use[ ] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use" the site or service. Section 29-4001.01 defines "social networking web site," "instant messaging," and "chat room," but "access or use" is undefined.

To put it bluntly, and as evidenced by the testimony described above, as well as the previous legal analysis, no one can truly know "what the statute covers." Williams, 553 U.S. at 293, 128 S.Ct. 1830. The statute is simply not amendable to a reasoned construction. As Professor Post35 explained in great detail, the terms used in section 28-322.05(1) are ambiguous, and the definitions provided in section 29-4001.01 either cover "almost everything on the Net" or "might cover virtually nothing on the Internet." (Tr. 74:17-21.) The best I can say is that the statute bars the offenders subject to the statute from having on their computers or communication devices utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google +.

Whatever the words of section 28-322.05 were intended to mean, it is clear that the language is properly interpreted to "criminalize[ ] a substantial amount of protected expressive activity," Williams, 553 U.S. at 297, 128 S.Ct. 1830 — from associating with friends, family, and business associates over the Internet (the most common method of association in the modern age) to communicating with consumers, customers, or manufacturers regarding a commercial product or service, to posting and discussing one's political opinions on an interactive blog or news web site. The ban reaches far beyond the individualized concerns of the plaintiffs.

In summary, Neb.Rev.Stat. § 28-322.05 is overbroad under the First Amendment. It is therefore facially unconstitutional.

2. Section 29-4006(1)(k) and (s)

This statute requires that every offender (without regard to the offense of conviction) provide the State with:

Even severing the admittedly unconstitutional portions of this statute from the remainder of the statute, I find and conclude that these portions of the statute violate the First Amendment. Much of the case law applicable to this statute has been set out above, and I will not repeat or discuss it again.

Any suggestion that the required information is not itself "speech" disregards the fact that "[a]nonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society." McIntyre, 514 U.S. at 357, 115 S.Ct. 1511 (holding that Ohio's statutory prohibition against distribution of any anonymous campaign literature violated First Amendment) (citations omitted). With the importance of anonymity in mind, I turn to the substance.

The statute clearly chills offenders from engaging in expressive activity that is otherwise perfectly proper, and the statute is therefore insufficiently narrow. There are several ways this occurs.

If the offender has an e-mail address, for example, and he provides his e-mail address to the State as required by Neb. Rev.Stat. § 29-4006(1)(s), he must also consent to a search of his computers and electronic communication devices in his home and elsewhere.38 Thus, any offender who does so much as send an e-mail message to his member of Congress is faced with the real possibility that the police will come into his home without a warrant to search his computer. In other words, the offender is forced to choose between his First Amendment rights and his Fourth Amendment rights. Many a rational offender will give up a computer and the ability to express himself on the Internet to remain secure in his home. Unless the statute is properly narrowed, the Constitution does not require offenders to give up their First Amendment rights in order to preserve their Fourth Amendment rights.

There is also another way the statute improperly chills too much speech. The questioned statute requires the offender to inform the State about "all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information." (Emphasis added.) Simply put, the statute requires offenders to tell the government if the offender has his own Internet site or blog and when and where the offender has expressed himself on that site or blog or any other blog.39

The Internet, and blogs in particular, allow "any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox," and the precedents from the Supreme Court "provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." Reno v. ACLU, 521 U.S. at 870, 117 S.Ct. 2329. Blogs frequently, and perhaps mostly, involve discussion of matters of public concern. Blogs are by their nature open to the public and pose no threat to children. That sex offenders — perhaps the most reviled group of people in our community — may "blog" threatens no child, but the government reporting requirement — that puts a stake through the heart of the First Amendment's protection of anonymity — surely deters faint-hearted offenders from expressing themselves on matters of public concern. In particular, it substantially deters offenders from criticizing the government and officials of the government, including most especially overzealous prosecutors and cops.

The same thing is true of "Internet sites maintained" by the offender. A site publicly available on the Internet poses no threat to children — after all, every police officer in the world can see it. But the requirement that offenders report to the police regarding the material they post to Internet sites they operate will surely deter offenders in business40 from maintaining such sites. In short, far too much expressive activity is unnecessarily chilled by this part of the statute.41

Let me be concrete. Two examples will serve that purpose.

First, assume Doe has a business selling "widgets." To promote his business, Doe has an Internet site entitled "Doe's Widgets." Because the market for "widgets" is driven largely by price and prices fluctuate daily, and because Doe has a sweet deal with a manufacturer, he markets his "widgets" by claiming to beat anyone's prices. Each day, as the market fluctuates, Doe uploads a new price sheet with that day's "best" prices. He also frequently adds testimonials from companies that have bought his "widgets." Doe processes orders on the site and responds to customer complaints.

Under the statute, each time Doe would try to market his "widgets" on his Internet site by adding content to the site, he would be obligated to tell Nebraska when and where he made that effort. He would be obligated to do that notwithstanding the fact that Nebraska could, if it drafted a statute that conformed with SORNA [the federal Sex Offender Registration and Notification Act], require Doe to give Nebraska his Internet address. Nebraska could then do its own due diligence. Far too much speech is unnecessarily burdened by the requirement that Doe report his daily business activity to the government.

Second, assume Doe is also a critic of Nebraska's Attorney General. Assume additionally that there is a law professor who maintains a blog to discuss the activities of the various state Attorneys General. The professor calls the blog "Eyes on AGs." On a daily basis, Doe has an interactive exchange, in the comment section of "Eyes on AGs," with adults who discuss their thoughts about Nebraska's Attorney General or some other Attorney General. Every time Doe adds something to the law professor's blog, Doe must tell the Nebraska State Patrol or the local sheriff that he has done so. Again, far too much speech is unnecessarily burdened by the requirement that Doe report to the government his daily political activity on blogs.

To be clear, requiring Internet identifiers and addresses, including designations for purposes of routing or self-identification, as permitted by the federal Attorney General's Guidelines, is one thing.42 Requiring sex offenders to constantly update the government about when and where they post content to Internet sites and blogs is an entirely different thing. This is true both because the requirement is unnecessarily burdensome and because the requirement is likely to deter the offender from engaging in speech that is perfectly appropriate. See, e.g., White v. Baker, 696 F.Supp.2d 1289, 1310 (N.D.Ga.2010) (holding that Georgia's blog reporting requirement violated the First Amendment).

One other item is especially worth mentioning. Assistant Attorney General Corey O'Brien was the principal architect of LB 97, and in December 2008, he indicated in an e-mail to Senator Lautenbaugh that although he "would personally like to prevent [persons with prior sex offenses] from using the internet altogether, that would be unconstitutional. However, depriving them from accessing certain parts of the internet is perfectly constitutional." (Ex. 199.) Given the overly burdensome nature of the Internet and blog-uploading reporting requirement and this e-mail, there is good reason to believe that Nebraska tried to do indirectly what it could not do directly.

Finally, for the reasons I have just expressed, section 29-4006(1)(k) and (s) is plainly overbroad under the First Amendment. Most offenders are likely to use the Internet whether they are parties to this litigation or not. Virtually all such offenders are subject to this provision of the law. Therefore, I declare these provisions of the statute facially unconstitutional.

C. Due Process (Vagueness) Challenge to Section 28-322.0543

A criminal statute fails to comport with due process if the statute "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); see also Skilling v. United States, ___ U.S.___, 130 S.Ct. 2896, 2933, 177 L.Ed.2d 619 (2010); Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "An overly vague statute `violates the first essential of due process of law,' because citizens `must necessarily guess at its meaning and differ as to its application'." United States v. Bamberg, 478 F.3d 934, 937 (8th Cir.2007) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).

When a law affects "core First Amendment speech," a law's failure to provide fair notice of what constitutes a violation is "a special concern" because it "inhibit[s] the exercise of freedom of expression and inevitably lead[s] citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Stahl v. City of Saint Louis, 687 F.3d 1038, 1041 (8th Cir.2012) (finding facially unconstitutional under Due Process Clause city ordinance that prohibited expressive activity that had consequence of impeding pedestrians or vehicular traffic because ordinance failed to provide fair notice of prohibited conduct and excessively chilled protected speech) (internal quotation marks & citation omitted).

Stahl, 687 F.3d at 1041-42.

"There is a two-part test to determine whether a statute is void for vagueness. The statute, first, must provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement." United States v. Bamberg, 478 F.3d at 937. (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). See also State v. Rung, 278 Neb. 855, 774 N.W.2d 621, 632 (2009) ("The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."). "Statutes are to be evaluated under these standards using principles of flexibility and reasonable breadth." Agena v. Lancaster Cnty. Bd. of Equalization, 276 Neb. 851, 758 N.W.2d 363, 374 (2008).

The fact that a court can envision "hypotheticals" and "close cases" does not "render[] a statute vague" because "[c]lose cases can be imagined under virtually any statute. The problem that poses is addressed[] not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt." Williams, 553 U.S. at 305-06, 128 S.Ct. 1830. Importantly, "[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." Id.

As I discussed regarding the plaintiffs' First Amendment challenge, section 28-322.05 is hopelessly indeterminate as to what it prohibits. There is no need to regurgitate the numerous examples of this indeterminacy that I discussed earlier. It is enough to state, by way of reminder, that (1) no one knows what a "collection of web sites" is, and without that understanding, the whole of the Internet could be banned; (2) Mr. Nigam, the defendants' expert and a former prosecutor, did not understand the difference between the words "access or use" set forth in the statute when assessing whether minors were involved with Internet sites, although he assumed that the writer of the statute thought those two words meant different things; and (3) Nigam essentially testified that one would have to rely upon the good faith of prosecutors to cure the vagueness problem inherent in the State's reliance upon a vendor's terms-of-use policy, a policy that might change from moment to moment without notice.

In summary, section 28-322.05 is facially unconstitutional because it is vague under the Due Process Clause.

D. Ex Post Facto Challenge to Sections 29-4006(1)(k) and (s), 29-4006(2) & 28-322.05

The next issue for resolution is whether Neb.Rev.Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010), alone or collectively, facially or as applied, violate the Ex Post Facto Clause of the United States and Nebraska Constitutions for (1) offenders who had served their time and were no longer under criminal justice supervision on January 1, 201044; and (2) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.45

As I explained in my previous memorandum and order on the parties' motions for summary judgment, "[a] law violates the Ex Post Facto Clause when it applies to events occurring before the law's enactment and the law disadvantages the offender, such as by practically increasing the punishment the offender was subject to on the date of enactment." (Filing 354, CM/ECF p. 13 n. 16.) See U.S. Const. art. I, § 10, cl. 1; Neb. Const. art. I, § 16. While Plaintiffs challenge the statutes under both the United States and Nebraska Constitutions, I must "undertake only a single analysis because [the Nebraska Supreme Court] ordinarily construes Nebraska's ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution." Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335, 350 (2004).

The question whether the statutes at issue "violate[ ] state and federal constitutional proscriptions against retroactive punishment is analyzed under the U.S. Supreme Court's two-prong, `intent-effects' test for analyzing punishment." State v. Worm, 268 Neb. 74, 680 N.W.2d 151, 160 (2004) (citing Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). Under this test, "[i]f the intention of the legislature was to impose punishment, that ends the inquiry." Smith, 538 U.S. at 92, 123 S.Ct. 1140. If, however, "a court determines that the Legislature intended a statutory scheme to be civil, that intent will be rejected `only where a party challenging the [statute] provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention.'" Worm, 680 N.W.2d at 160 (quoting State v. Isham, 261 Neb. 690, 625 N.W.2d 511, 515 (2001)); see also Doe v. Miller, 405 F.3d 700, 718 (8th Cir.2005) (ex post facto analysis in case challenging constitutionality of state statute imposing residency restrictions on sex offenders).

Deciding whether a statutory scheme is civil and nonpunitive, as opposed to criminal, "is first of all a question of statutory construction" which requires the court to "consider the statute's text and its structure to determine the legislative objective." Smith, 538 U.S. at 92, 123 S.Ct. 1140 (internal quotation marks & citations omitted). This involves considering whether the legislature expressly or impliedly indicated a civil or criminal preference; the manner of statutory codification; the enforcement procedures the statutes establish; and the procedural mechanisms that will implement the statutes. Smith, 538 U.S. at 93-96, 123 S.Ct. 1140.46

If the court decides that the legislature intended to create a civil, nonpunitive statutory scheme, the court must then determine whether the effect of a statute is so punitive as to negate the legislature's intent. To do so, a court should observe several factors that are neither exhaustive nor dispositive, but rather serve as "useful guideposts." Smith, 538 U.S. at 97, 123 S.Ct. 1140 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)) (internal quotation marks omitted):

Worm, 680 N.W.2d at 161 (quoting State v. Isham, 261 Neb. 690, 625 N.W.2d 511, 515-516 (2001), quoting Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)); see also Doe v. Miller, 405 F.3d at 719 (while Kennedy v. Mendoza-Martinez factors are aid to analysis, the "ultimate question always remains whether the punitive effects of the law are so severe as to constitute the `clearest proof' that a statute intended by the legislature to be nonpunitive and regulatory should nonetheless be deemed to impose ex post facto punishment").

Thus, I must decide whether (1) the Nebraska Legislature intended to maintain a civil regulatory scheme in enacting Neb. Rev.Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 and, if so, (2) whether the plaintiffs have established by the "clearest proof" that the effects of the statutory language at issue negate the Nebraska Legislature's intent to create a civil, nonpunitive statutory scheme.

I decide that the intent of the Nebraska Legislature was to punish sex offenders, and these laws therefore violate the Ex Post Facto Clause of the United States Constitution, as well as the equivalent Nebraska provision. That is, these laws are facially unconstitutional regarding (1) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (2) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.

The statements of the introducer of the bills, coupled with the text, structure, and history of these laws, including the enforcement procedures and the procedural mechanisms that serve to implement the laws, make this evident. Next, I explain this decision in more detail.

First, if I am to do my job as a judge (and particularly as a finder of fact), I must not shrink from the truth. The truth is that the hand-picked introducer of the bill that spawned these extraordinary statutes, acting at the behest of the chief law enforcement officer for Nebraska, the Attorney General, essentially admitted the punitive intent of these provisions. He admitted that he lacked objectivity, and he admitted that he was driven by "rage" at, and "revulsion" for, the sex offenders who were the targets of these extraordinary measures. The senator could not have been more plain.

In this vein, when the plaintiffs sought to depose Nebraska legislators on this very topic, the Nebraska Attorney General's office, the body defending the litigation while at the same time serving as the moving force behind these laws, successfully asserted legislative privileges to thwart the plaintiffs' effort to get at the truth. While the defendants and their lawyers were entitled to invoke these privileges, and while this court was duty-bound to apply the law of privilege, the defendants cannot now claim that the evidence is lacking regarding the true motives of the law-makers. That is, the defendants will not be allowed to use their privilege defenses as both a sword and shield.

Second, the Nebraska Legislature went far beyond its purported purpose of bringing the Nebraska Sex Offender Registration Act into compliance with the federal guidelines created by the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248), otherwise known as the Sex Offender Registration and Notification Act ("SORNA").47 (Ex. 302, Introducer's Statement of Intent, LB 285 (Mar. 18, 2009).) SORNA requires a person to disclose his or her Internet identifiers and addresses, such as e-mail addresses and instant messaging identifiers, but does not criminalize registrants' use of social networking web sites, instant messaging, or chat rooms, nor does it require registrants to subject themselves to search and monitoring of their computers and electronic communication devices within their homes, places of employment, and schools. In addition, once Internet identifiers have been provided, SORNA does not require that offenders tell the government every time the offender uploads content to an Internet site or blog. While it is true that "SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires," The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38030-01, at 38034, 2008 WL 2594934 (July 2, 2008) (Ex. 303), if the Nebraska Legislature's intent was mere compliance with a civil regulatory scheme, these broad, additional, and oppressive criminal provisions would not have been included.

Third, the impact of these statutes is to impose what is essentially a long-term, and, in some cases, a life-term, period of "supervised release" that would be right at home in a typical federal judge's criminal sentence for a sex offense. Many offenders are prohibited from using enormous portions of the Internet upon pain of a jail or prison sentence.48 All offenders who use the Internet must tell the government any time they post information to an Internet site or a blog, and the failure to do so is a felony.49 All offenders who use the Internet must "consent" to the search of their computers whether at home or otherwise, and they must also "consent" to the installation of monitoring equipment — the failure to do so is a felony.50

There are, of course, two important differences between a federal judge's imposition of a term of supervised release and Nebraska's scheme. In Nebraska's scheme, the offender has no impartial judge determining the need for the conditions, and in Nebraska the offender has no impartial judge monitoring the administration of the conditions. Under Nebraska's scheme, those things are done by law enforcement agents. Furthermore, once a federal offender has done his or her time and served his or her term of supervised release, the offender does not need to fear that the offender will be subjected anew to those restrictive conditions and criminal sanctions unless the offender violates the law again.

Fourth, and finally, these statutes are rife with other constitutional infirmities, and the blatant willingness of the Nebraska Legislature to violate the Constitution is strong evidence of animus. These laws gut the First and Fourth Amendment and the Due Process Clause. These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens. They are silenced. They are rendered insecure in their homes. They are denied the rudiments of fair notice. In Nebraska's "rage" and "revulsion," they are stripped of fundamental constitutional rights. In short, sex offenders who were sentenced prior to the enactment of these laws are punished.

E. Doe 24's Fourth Amendment "As-Applied" Challenge to Section 29-4006(2)

If I have jurisdiction to do so, I must determine the constitutionality of the consent-to-search and consent-to-monitoring provisions of Neb.Rev.Stat. § 29-4006(2) under the Fourth Amendment and the equivalent provision of the Nebraska Constitution as applied to Doe 24.51 Upon providing certain identifying information related to their electronic communications, section 29-4006(2) requires sex-offender registrants to consent to the "[s]earch of all the computers or electronic communication devices possessed by the person" and the "[i]nstallation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person."

The plaintiffs "concede that they do not have standing to bring a claim for those on probation or supervised release; further, they concede that this provision could be applied constitutionally to a parolee subject to different terms of parole. However, the plaintiffs argue, because Doe 24 has an expectation of privacy as it relates to general law enforcement, Neb.Rev.Stat. § 29-4006(2) should be held to be unconstitutional as applied to him and those similarly situated." (Filing 521 at CM/ ECF p. 48.) In other words, section 29-4006(2) allows searches and monitoring by general law enforcement personnel, but Doe 24's terms of parole limit such searches and monitoring to those performed only by parole officers and/or personnel of the Parole Administration.52 (Filing 521 at CM/ECF p. 50.)

Relying on Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the defendants contend that Doe 24, by virtue of his conditions of parole, is "already subject to a much-broader search and monitor provision" than that provided in section 29-4006(2); that Doe 24 "has no expectation of privacy entitled to protection under the Fourth Amendment throughout the duration of his parole"; and therefore, the court should reject the plaintiffs' Fourth Amendment challenge to Neb.Rev.Stat. § 29-4006(2). (Filing 522 at CM/ECF pp. 42-43.)

United States v. Brown, 346 F.3d 808, 811 (8th Cir.2003).

In United States v. Knights, 534 U.S. 112, 119-21, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court noted that probationers "do not enjoy the absolute liberty to which every citizen is entitled," but instead are subject to "a form of criminal sanction imposed by a court" that is "one point ... on a continuum of possible punishments." Id. at 119, 122 S.Ct. 587 (internal quotation marks & citations omitted). In Samson, the Court found that parolees, like Doe 24, are on that same "continuum" with even "fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." Samson, 547 U.S. at 850, 126 S.Ct. 2193 ("The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.") (internal quotation marks & citation omitted). Further, when a probationer or parolee "consents to a search condition, his already-reduced reasonable expectation of privacy diminishes significantly." Brown, 346 F.3d at 811; Samson, 547 U.S. at 852, 126 S.Ct. 2193 (petitioner's status as parolee and terms of parole search condition led Court to conclude that petitioner did not have expectation of privacy that society would recognize as legitimate).

No one argues that the State does not have an "overwhelming interest" in supervising parolees, in reducing recidivism, and in promoting "reintegration and positive citizenship among probationers and parolees," Samson, 547 U.S. at 853, 126 S.Ct. 2193, or that the State has a significant, even compelling, government interest in protecting minors online from sex offenses.53 But that governmental interest is tempered by the Fourth Amendment, which protects parolees under certain circumstances.

Indeed, there may be a big problem for the State. That problem is represented by United States v. Freeman, 479 F.3d 743 (10th Cir.2007). There, Judge McConnell, writing for the Tenth Circuit, decided that the search of a parolee's residence by ordinary city police officers, when the parole agreement allowed such searches only by parole officers, was impermissible under the Fourth Amendment. Essential to the Freeman holding were the Kansas Department of Corrections policy statements that provided, "with the exception of pat-down and plain view searches, special enforcement officers are the only personnel authorized to conduct a more extensive search of offenders' person or property" and that permitted warrantless searches only when the special enforcement officer had reasonable suspicion of a parole condition violation. Id. at 744, 747-48. The Freeman court stressed that "[p]arolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law." The court also observed that Samson approved the constitutionality of general law enforcement officers' warrantless parolee searches without reasonable suspicion "only when authorized under state law." Id.

In reviewing Doe 24's challenge, I am confronted by the following four uncertainties: (1) Doe 24 may never face the threat of a search and the installation of monitoring hardware and software under § 29-4006(2) because the triggering mechanism — § 29-4006(1)(k) and (s) — has been declared unconstitutional on grounds other than the Fourth Amendment; (2) Doe 24's parole may expire before these issues are finally resolved on appeal, and, if so, Doe 24's expectation of privacy would be different; (3) as the Freeman court noted, Doe 24's parole conditions, as they relate to his Fourth Amendment challenge, require a construction of state law; and (4) there is no authoritative construction of state law, such as the Kansas policy statements in Freeman, upon which I can rely to understand the reach of Doe 24's parole conditions, and I have no jurisdiction in this case to tell the Nebraska Parole Board what those parole conditions mean.

These contingencies force me to question whether Doe 24's challenge is "ripe." Critically, "ripeness" is a necessary component for Article III jurisdiction:

"The ripeness doctrine is aimed at preventing federal courts, through premature adjudication, from `entangling themselves in abstract disagreements.'" Wersal v. Sexton, 674 F.3d 1010, 1018 (8th Cir.2012) (en banc) (judicial office candidate's First Amendment challenge to clause of Minnesota code of judicial conduct prohibiting judicial candidate from soliciting funds for political organizations or candidates was not ripe; candidate only sought to solicit funds for his own campaign committee, which he was permitted to do under the code, and not for another's campaign or himself personally, and therefore candidate could not show there was likelihood he would face sanctions for engaging in desired conduct) (quoting Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 863 (8th Cir.2006), in turn quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)).

After careful consideration, I decide that Doe 24's "as-applied" Fourth Amendment challenge to § 29-4006(2) is not "ripe" and must be dismissed for lack of Article III jurisdiction. The four "uncertainties" that I outlined earlier convince me that Doe 24's challenge involves contingent future events that may not occur as anticipated, or indeed may not occur at all; that Doe 24's challenge is premature; and that if I assumed jurisdiction, I would be entangling the court in the resolution of an abstract question.54

IV. CONCLUSION

For the sake of clarity, I now provide a summary of the rulings I have made earlier and the rulings that I have made in this opinion. The following summary is drawn from my earlier decision on the motions for summary judgment (Filing 354) and this decision:

Lastly, I compliment all the lawyers for their professionalism and civility. At the initial stages of this litigation, I found Mr. David Cookson, Nebraska's Chief Deputy Attorney General, to have been especially persuasive, candid, and helpful. I should also single out the lead lawyers for the plaintiffs. Mr. Stuart Dornan, a former FBI agent and a former County Attorney for Douglas County, Nebraska (Omaha), and Mr. Thomas Monaghan, a former United States Attorney for the District of Nebraska, took the plaintiffs' case despite the fact the plaintiffs are viewed as lepers by many Nebraskans. By taking this case, both men were sure to displease and disappoint their former law-enforcement friends and colleagues. The decision to represent these unpopular plaintiffs took courage and is an example of the highest traditions of the bar of this court.

Accordingly,

IT IS ORDERED that:

1. The Clerk of Court shall upload Court's Exhibit 1 to CM/ECF as a restricted document.

2. Except as noted below, the Nebraska laws that were enacted by LB 97 (2009) and LB 285 (2009) are constitutional.

3. Neb.Rev.Stat. §§ 28-322.05 and 29-4006(1)(k) and (s) (West, Operative Jan. 1, 2010) are facially unconstitutional under the First Amendment and the equivalent Nebraska constitutional provision.

4. Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010) is facially unconstitutional under the Due Process Clause and the equivalent Nebraska constitutional provision.

5. Neb.Rev.Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010) are facially unconstitutional under the Ex Post Facto Clause of the United States Constitution and the equivalent Nebraska constitutional provision regarding (a) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (b) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.

6. Neb.Rev.Stat. §§ 29-4006(1)(k) and (s) and 29-4006(2) (West, Operative Jan. 1, 2010) are unconstitutional as applied to all those Plaintiffs listed on Court's Exhibit 1 who are identified therein as "presently a Plaintiff" and who must register as a sex offender under the Nebraska Sex Offender Registration Act, Neb.Rev.Stat. §§ 29-4001 to 29-4014.

7. Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010) is unconstitutional as applied to Does 2, 3, 4, 6, 12, 13, 17, 18, 19, 27, and 35.56

8. As indicated in my decision on the motions for summary judgment (Filing 354), Neb.Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010) is unconstitutional under the Fourth Amendment as to those plaintiffs who were previously convicted of sex crimes, but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. Doe 24's as-applied challenge to Neb.Rev.Stat. § 29-4006(2) under the Fourth Amendment and the equivalent Nebraska constitutional provision is not ripe and is therefore dismissed for lack of Article III jurisdiction.

9. The claims of the plaintiffs who are not required to register as sex offenders are dismissed without prejudice as moot.

10. The claims of the plaintiffs who are shown on Court's Exhibit 1 to have withdrawn from participation in this lawsuit are dismissed without prejudice.

11. Final judgment will be withheld pending resolution of the attorney fee issue.

12. Counsel for the plaintiffs shall have until November 1, 2012, to submit an application, evidence, evidence index, and brief regarding attorney fees. Counsel for the defendants shall have until November 16, 2012, to respond with evidence, evidence index, and brief. Both sides shall give due attention to the local rules of practice regarding attorney fee applications. Counsel are also encouraged to settle the attorney fee issue, if they can, recognizing that the plaintiffs have been partially, but not wholly, successful.