by Gerard E. Dempsey and Kathleen T. Henn

In an effort to make it more difficult for convicted sex offenders to use the Internet to connect with previous or new victims, the Illinois General Assembly has passed two new laws that implicate public use of libraries' computers and Internet service.

The first law, effective last January 1, 2009, creates a new Class 4 felony, criminalizing the offense of "grooming."  "Grooming" involves the knowing use of a computer on-line service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child, a child's guardian, or another person believed by the person to be a child or a child's guardian, to commit any sex offense defined in the Illinois Sex Offender Registration Act, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child.  720 ILCS 5/11-25.

The other law, which will become effective on January 1, 2010, prohibits convicted sex offenders from using so-called "social networking websites" -- such as Facebook and MySpace.  Public Act 96-262.

This law defines a "social networking website" as meaning an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members or links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website.  A social networking website provides members or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.

This law goes on to impose as a condition of parole or mandated supervised release, as a condition of probation and conditional discharge, and as an incident or condition of supervision, that if the person has been convicted of a sex offense defined in the Illinois Sex Offender Registration Act committed after January 1, 2010, such person must refrain from accessing or using a "social networking website."

These new laws pose knotty questions about the legal responsibilities of public libraries that allow library patrons or other members of the general public to utilize the libraries' computers and/or Internet service.  Unfortunately, the new laws do not contain any guidance for libraries.

The Illinois Library Records Confidentiality Act (75 ILCS 70/1) precludes libraries from publishing or making available to the public any information contained in the registration and circulation records of the library, unless required to do so by a court order, or unless the information is requested by a sworn law enforcement officer who represents that it is impractical to secure a court order as a result of an emergency and that the law enforcement officer has probable cause to believe that there is an imminent danger of physical harm.  However, even when requested by a sworn law enforcement officer, the library is limited to providing only information identifying a suspect, witness, or victim of a crime.  The library is prohibited from disclosing registration or circulation records that would indicate materials borrowed, resources reviewed, or services used at the library.  Consequently, the Library Records Confidentiality Act does not authorize libraries to take any action that would be likely to assist in the enforcement of either of these new laws.

Approaching the question from the opposite track, no public library has any obligation to "police" the use of its computers and/or Internet service, nor does the library have any obligation to obtain a list of convicted sex offenders who may be library patrons or who as members of the general public may use the libraries' computer and/or Internet service.  Therefore, unless a library staff member were to stand behind the computer and study the monitor as the library patron is using the Internet service, it is unlikely that the library will know whether a patron is engaged in "grooming."  Moreover, First Amendment considerations themselves strongly counsel against "policing" or "monitoring" the public's use of the library's Internet service.

There are even greater difficulties involved in enforcing the statutory ban against "social networking" by convicted sex offenders, principally because of the ease with which a bogus online persona can be created.  Libraries have no facilities to check the user's identification and then to cross-reference that identification against the State's list of convicted sex offenders.

All in all, libraries should be aware of these two new laws, but there is no clear path for libraries to follow if requested for information by a sworn law enforcement officer.  In the circumstances, until authoritative guidelines are provided, libraries should comply carefully with the Library Records Confidentiality Act and should not take any action that is not clearly authorized by that Act.

Gerard Dempsey and Kathleen Henn are partners with the law firm of Klein, Thorpe & Jenkins, Ltd. which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia Avenue, Orland Park.  The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Published October 21, 2009 in vol. 3, iss. 20 [View]