Full opinion text
MEMORANDUM AND ORDER RICHARD G. KOPF, District Judge. At issue in these consolidated cases is the constitutionality of amendments to Nebraska’s Sex Offender Registration Act that became operative January 1, 2010. On cross-motions for summary judgment, I find there are genuine issues of material fact regarding three new sections of the Act which will necessitate a trial, but in all other respects I find as a matter of law that the legislation does not violate either the United States Constitution or the Nebraska Constitution. BACKGROUND Case No. 8:09CV456 was filed in this court on December 16, 2009, by twenty convicted sex offenders (John and Jane Does 1-20) and thirteen of their spouses, children, parents, and employers (John and Jane Does A-K). In an amended complaint filed on March 15, 2010, sixteen additional convicted sex offenders (John Does 21-36) were added as Plaintiffs. All Plaintiffs allegedly reside in Nebraska. Named as Defendants are the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, county attorneys and sheriffs for each of Nebraska’s ninety-three counties, and police chiefs for the cities of Lincoln, Omaha, Papillion, Fremont, Bennington, Ralston, Columbus, and York, Nebraska. Individual Defendants are only sued in their official capacity. Plaintiffs in Case No. 8:09CV456 allege that Nebraska’s Sex Offender Registration Act (SORA), as amended, violates several provisions of the United States Constitution, including: (1) the Ex Post Facto Clause of Article I, § 10; (2) the Fifth Amendment’s Double Jeopardy Clause; (3) the Eighth Amendment’s prohibition against cruel and unusual punishment; (4) the Fourth Amendment’s prohibition against unreasonable searches and seizures; (5) the Fourteenth Amendment’s Due Process Clause; (6) the Fourteenth Amendment’s Equal Protection Clause; (7) the First Amendment’s guarantee of free speech; and (8) the Contracts Clause of Article I, § 10. Plaintiffs also allege violations of eight corresponding provisions of the Nebraska Constitution, plus violations of Article III, § 18, which prohibits special legislation, and Article II, § 1, which mandates the separation of powers. Case No. 4:09CV3266 was filed in the District Court of Douglas County, Nebraska, on December 24, 2009, by a convicted sex offender (John Doe) who allegedly is employed in Douglas County. On December 28, 2009, the action was removed to federal court by Defendants, who include the Nebraska State Patrol and its Superintendent, the Nebraska Attorney General, the Douglas County Attorney, the Douglas County Sheriff, and the Omaha Police Chief. Plaintiffs complaint in Case No. 4:09CV3266 is substantially similar to the amended complaint filed in Case No. 8:09CV456, except that it does not include claims that the amended Act violates the Equal Protection Clause, constitutes special legislation, or violates the Contracts Clause. Case No. 4:10CV3004 was filed in the District Court of Lincoln County, Nebraska, on January 4, 2010, by an individual (John Doe) who allegedly is required by the amended Act to register as a sex offender in Lincoln County. On January 7, 2010, the action was removed to federal court by Defendants, who include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Lincoln County Attorney, the Lincoln County Sheriff, and the Chief of Police for the City of North Platte, Nebraska. Plaintiff in Case No. 4:10CV3004 does not claim any violations of the United States Constitution, but he alleges the amended Act violates the same eight provisions of the Nebraska Constitution that are involved in Case No. 4:09CV3266, namely: (1) Article I, § 16 (ex post facto law); (2) Article I, § 12 (double jeopardy); (3) Article I, § 9 (cruel and unusual punishment); (4) Article I, § 7 (unreasonable search and seizure); (5) Article I, § 3 (due process); (6) Article I, § 5 (free speech); (7) Article II, § 1 (separation of powers); and (8) Article I, § 16 (contracts clause). Case No. 4:10CV3005 was filed in the District Court of Sarpy County, Nebraska, on December 31, 2009, by a convicted sex offender who allegedly resides in Sarpy County. Defendants removed the action to federal court on January 8, 2010. Defendants include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Sarpy County Attorney, and the Sarpy County Sheriff. As in the preceding case, Plaintiff in Case No. 4:10CV3005 only alleges violations of the Nebraska Constitution. His complaint contains seven causes of action which are identical to the first seven claims alleged in Case No. 4:10CV3004. These four cases were consolidated for all purposes, including trial and discovery, on January 21, 2010. Case No. 8:09CV456 was designated as the “lead case.” Because the amended complaint filed in Case No. 8:09CV456 contains every constitutional claim that is alleged in the other three cases, in my discussion of those claims I will cite only to that pleading. Plaintiffs in Case Nos. 8:09CV456, 4:09CV3266, and 4:10CV3005 are represented by the same counsel, and have filed a joint response to Defendants’ motion for summary judgment. They have also jointly filed a motion for summary judgment against Defendants. Plaintiff in Case No. 4-.10CV3004 is represented by different counsel, who has neither responded to Defendants’ motion for summary judgment nor filed a cross-motion. The Challenged Legislation Plaintiffs seek to prohibit enforcement of parts of Legislative Bills 97 (LB 97) and 285 (LB 285), which were passed by the Nebraska Legislature and approved by the Governor in May 2009. LB 97 was enacted first. Among other things, LB 97 amended Sections 294001, 294003, 294006, 29-4007, and 294008 of Nebraska’s Sex Offender Registration Act (SORA). See Nebraska Laws 2009, LB 97 §§ 23, 25, 26, 27, 28. LB 97 also created two new statutes, which are codified as Neb.Rev.Stat. §§ 28-322.05 and 294001.01. See Nebraska Laws, LB 97, §§ 14, 24. Section 28-322.05 is a new criminal statute (unlawful use of the Internet by a prohibited sex offender), while Section 294001.01 is a new definitional statute for SORA. LB 285 made further amendments to SORA Sections 294003 (applicability of the Act), 294006 (registration format), and 294007 (notification), and also amended SORA Sections 294004 (registration procedure), 294005 (registration duration), 254009 (information not confidential), 294011 (violation penalties), and 29-4013 (rules and regulations). See Nebraska Laws 2009, LB 285, §§ 4 through 11. In addition, LB 285 amended Sections 14 and 24 of LB 97. See Nebraska Laws 2009, LB 285, §§ 1, 3. Finally, LB 285 outright repealed SORA Section 294010 (expungement procedure). See Nebraska Laws 2009, LB 285, § 17. Appended to Defendants’ brief is a table (“Appendix II, Sex Ofeender [sic] Registration Law Comparison”) that summarizes the amendments made to SORA by LB 97 and LB 285. (Filing 339-2) For ease of reference, I have attached the table to this opinion as Attachment B. Defendants have also appended to their brief a table comparing Nebraska’s registration requirements to federal requirements established by Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, also known as the Sex Offender Registration and Notification Act (“SORNA”). This detailed and helpful table (“Appendix I, Sex Ofeender [sic] Registration Law Comparison-Adam Walsh Act”) is attached to this opinion as Attachment C. SORNA, which was enacted on July 27, 2006, requires every jurisdiction to maintain a sex offender registry conforming to federal requirements or else lose federal funding. See 42 U.S.C. §§ 16912, 16925. As also required by SORNA, 42 U.S.C. § 16912(b), the Attorney General of the United States has published guidance to interpret and implement the law. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. § 38030-01 (July 2, 2008). The National Guidelines make it clear that SORNA sets a floor and not a ceiling for the states. That is, while the states must enact the minimum federal requirements, “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.” National Guidelines, at 38034. The Attorney General has also made it clear that SORNA applies to sex offenders whose convictions occurred prior to the adoption of SORNA, stating: The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction’s implementation of a conforming registration program. Rather, SORNA’s requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA’s enactment. See 72 FR 8894, 8895-96 (Feb. 28, 2007); 28 CFR 72.3. The application of the SOR-NA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem “because the SORNA sex offender registration and notification requirements are intended to be non-punitive, regulatory measures adopted for public safety purposes, and hence may validly be applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. See Smith v. Doe, 538 U.S. 84 [123 S.Ct. 1140, 155 L.Ed.2d 164] (2003).” 72 FR at 8896. National Guidelines, at 38046. DISCUSSION In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue. Great Plains Real Estate Development, L.L.C. v. Union Central Life Ins. Co., 536 F.3d 939, 943-44 (8th Cir.2008). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitied to a judgment as a matter of law.” Sensient Technologies Corp. v. SensoryEffects Flavor Co., 613 F.3d 754, 760 (8th Cir.2010) (quoting Fed.R.Civ.P. 56(c)). Disputes that are not “genuine,” or that are about facts that are not “material,” will not preclude summary judgment. Eng v. Cummings, McClorey, Davis & Acho, PLC, F.3d, 611 F.3d 428, 432 (8th Cir. July 9, 2010). The discussion which follows is in two parts: In Part One, I will identify and discuss genuine disputes that exist regarding three sections of Nebraska’s law that diverge from SORNA’s minimum requirements, and will also grant in part Plaintiffs’ motion for summary judgment regarding one of those sections. In Part Two, I will analyze the remainder of the new law and explain why it is constitutional. As a preliminary matter, however, I must address Defendants’ contention that Plaintiffs’ claims as against the State of Nebraska and the Nebraska State Patrol are barred by the Eleventh Amendment to the United States Constitution, which grants states and their agencies immunity from suit in federal court. See Pennhurst State Sch. & Hosp. v. Raiderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). A state waives immunity when it voluntarily removes an action to federal court. See Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618-623, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). Defendants removed Case Nos. 4:09CV3266, 4:10CV3004, and 4:10CV3005 to federal court and filed motions on December 28 and 29, 2009, to consolidate Case No. 8:09CV456 with Case Nos. 4:09CV3266 and 4.-09CV3258. (Filings 82, 88) At a hearing on January 21, 2010, Defendants also requested consolidation of the other cases. (Filing 308 (audio file), at 9:48-10:05.) I conclude that by these voluntary actions the State of Nebraska and the Nebraska State Patrol unequivocally waived their Eleventh Amendment immunity from suit in federal court. PART ONE-THREE SECTIONS OF NEBRASKA’S NEW LAW ARE EITHER UNCONSTITUTIONAL OR A TRIAL IS REQUIRED TO DETERMINE THEIR CONSTITUTIONALITY Three sections of Nebraska’s new law are either unconstitutional or a trial is required to determine their constitutionality. Those sections are: (1) Neb.Rev.Stat. § 29-4006(l)(k) & (s) (West, Operative Jan. 1, 2010) (requiring disclosure of registrant’s remote communication device identifiers and addresses together with email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the registrant or to which the registrant has uploaded any content or posted any messages or information); (2) Neb.Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010) (requiring registrants to consent to search and installation of monitoring hardware and software); and (3) Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010) (making it a crime to use Internet social networking sites or instant messaging or chat room services accessible by minors by certain persons required to register under the Sex Offender Registration Act). The constitutional provisions that are violated or may be violated are primarily the Ex Post Facto Clause (retroactive punishment), the First Amendment (freedom of speech), the Fourth Amendment (unreasonable search) and the Due Process Clause of the Fourteenth Amendment (vagueness of a criminal statute). A more detailed explanation follows. I. First and Second Causes of Action — Ex Post Facto Claim — Regarding Neb. Rev.Stat. § 29-4006(1) (k) & (s) (West, Operative Jan. 1, 2010), Neb. Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010), and Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010) The Constitution, art. I, § 10, cl. 1, provides, among other things, that: “No State shall ... pass any ... ex post facto Law....” These laws are challenged on the basis of the Ex Post Facto Clause of the Constitution and the Nebraska equivalent. (E.g., Id. at CWECF pp. 15, 20, 51.) Plaintiffs bring a facial and an as-applied challenge. (Filing 329 at CM/ECF p. 60.) Either in kind or degree, these three statutes are foreign to the federal Sex Offender Registration and Notification Act (SORNA). Initially, Neb.Rev.Stat. § 29 — 4006(l)(k) & (s) requires an offender to disclose numerous details regarding his or her use of the Internet, particularly including “all blogs ... to which the person has uploaded any content or posted any messages or information.” SORNA has a counterpart but it is far more limited. See 42 U.S.C. § 16915a; The National Guidelines for Sex Offender Registration, IS Fed.Reg. § 38030-01, Part VI (July 2, 2008), available at 2008 WL 2594934, *38055 (requiring that the information included in the registries “include all designations used by sex offenders for purposes of routing or self-identification in Internet communications or postings”) (emphasis added). In addition, Neb.Rev. Stat. § 29-4006(2) imposes a consent to search and monitoring requirement on offenders who use the Internet. The consent to search and monitoring requirement apparently permits law enforcement officers to search homes, businesses and computers and install monitoring equipment on computers without any suspicion of criminal activity. Failure to give “consent” appears to be a felony. SORNA has no counterpart. Still further, Neb.Rev. Stat. § 28-322.05 makes it a crime for certain offenders to use social networking sites and instant messaging or chat room services that allow a person under 18 to access or use such sites or services. SORNA has no counterpart. I conclude that a trial is required to determine whether these three statutes, alone or collectively, violate the Ex Post Facto Clause of the Constitution (and the Nebraska equivalent) for (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. A trial is required for both the facial and as applied Ex Post Facto challenges brought by Plaintiffs. Accordingly, the motions for summary judgment submitted by Plaintiffs and Defendants will be denied. A brief explanation follows. In upholding SORNA against an Ex Post Facto challenge, the United States Court of Appeals for the Eighth Circuit has outlined the proper analysis. United States v. May, 535 F.3d 912 (8th Cir.2008)(the application of the registration requirements of SORNA to a defendant who was registered as a sex offender pursuant to state law before SORNA’s enactment, and who traveled to another state after SORNA’s enactment, did not violate the Ex Post Facto Clause; the statute did not punish an individual for previously being convicted of a sex crime, but rather for not registering as a sex offender, or failing to update his registration after traveling in interstate commerce). The analytic outlined by the Eighth Circuit is as follows: 1. Determine whether the legislature intended the subject statute to impose punishment for a pre-existing crime. If so, the statute violates the Ex Post Facto Clause. 2. If the legislative intent was to enact a civil and non-punitive regulatory scheme, determine whether the statute is so punitive either in purpose or effect as to negate the legislative intention to deem it civil. If so, the statute violates the Ex Post Facto Clause. However, only the “clearest” proof will suffice in this instance. Id. at 919-920 (citations omitted). As to the first level of analysis suggested by the Court of Appeals, there is evidence that the Nebraska legislator who authored these (and other) provisions stated that he doubted his own objectivity and therefore his suitability to introduce this legislation. The legislator expressed “rage” and “revulsion” regarding persons who have “these convictions.” In particular, while commenting upon recidivism, he stated that he did not “buy” the idea of “rehabilitation” or that “people could change ... [i]n [this] area” and hé did not “like the odds” that registrants would offend again. (Filing 319-3 at CM/ECF pp. 3-5, 14-16.) Inasmuch as these statutory provisions are foreign to SORNA, and the foregoing comments, when read together with the far reaching and novel substance of these statutes, could be characterized as punitive in nature regarding offenders who had been sentenced and who had completed their supervision prior to the effective date or who had been sentenced prior to the effective date but remain under supervision thereafter, I conclude that a trial is necessary to determine whether the legislature intended these three statutes to impose punishment such that these statute violate the Ex Post Facto Clause. As to the second level of analysis suggested by the Court of Appeals, these three provisions, apparently unique to the American legal system, are obviously onerous. I also conclude that a trial is necessary to determine whether these statutes (separately or collectively) are so punitive either in purpose or effect as to negate any legislative intention to deem them civil. In short, the factual record produced by Plaintiffs and Defendants in support of their motions is both lacking in detail and in dispute as to material matters. Therefore, Plaintiffs’ Ex Post Facto claims regarding these three statutes require a trial. An example will illustrate the point. Factually, both sides have failed to produce a record that would allow me to determine how Neb.Rev.Stat. § 28-322.05 (making it a crime for certain offenders to use social networking sites and instant messaging or chat room services that allow a person under 18 to access or use such site or service) would actually impact particular Plaintiffs or offenders more generally. Whether the challenge is “as-applied” or “facial,” I must understand, as a factual matter, how the statute works. The parties have failed to give me an undisputed record upon which to judge that question. Moreover, my independent research suggests that § 28-322.05 may have far reaching (and, perhaps, unintended) consequences. I have attached to this opinion Attachment A. It gives numerous examples of sites that might plausibly be banned for offenders subject to the criminal provisions of Neb.Rev.Stat. § 28-322.05. At trial, the parties would be well-advised to present evidence regarding how the ban works and how far it extends. A similarly detailed factual exposition of both the workings and reach of the other statutes will also be required at trial in order to fairly judge the Ex Post Facto claims and defenses. II. Seventh and Eighth Causes of Action— Fourth Amendment — Regarding Neb.Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010) Plaintiffs attack Neb.Rev.Stat. § 29-4006(2) and the “consent to search” and “consent to monitoring” requirements. Plaintiffs claim that these provisions violate the Fourth Amendment and Nebraska’s equivalent constitutional provision. (Filing 329 at CM/ECF pp. 15-19, 53-54.) They bring a facial and an as-applied challenge. (Id. at CM/ECF p. 59.) A person who is required to register must supply that “person’s remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the deviee[.]” Neb.Rev.Stat. § 29-4006(l)(k). A registrant must also supply: All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. Neb.Rev.Stat. § 29-4006(l)(s). Providing the foregoing information then triggers a broad “consent to search” and “consent to monitoring” requirement. That is: When the person provides any information under subdivision (l)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the: (a) Search of all the computers or electronic communication devices possessed by the person; and (b) Installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person. Neb.Rev.Stat. § 29-4006(2). A refusal to provide “consent” is a Class IV felony and a refusal is punishable by a prison sentence. Neb.Rev.Stat. § 29-4011(l)(“Any person required to register under the Sex Offender Registration Act who violates the act is guilty of a Class IV felony.”) Such a felony is punishable by imprisonment of up to five years and a fine of up to $10,000. Neb.Rev.Stat. § 28-105(1) (West, 2009). A. Persons Not Presently Under Probation, Parole or Court-Monitored Supervision 1. Search Defendants concede that the “consent to search” provisions are unconstitutional regarding offenders who are no longer under supervision. To be specific, “Defendants acquiesce to entry of a permanent injunction prohibiting enforcement of the consent to search provision set forth in Neb. Rev.Stat. § 29-4006(2) as against individuals no longer on probation, parole, or other court-monitored supervision.” (Filing 337 at CM/ECF p. 12.) Defendants’ concession is well-founded because this portion of Nebraska’s law clearly violates the Fourth Amendment rights of persons who are not presently on probation, parole or court-monitored supervision. See Doe v. Marion County, 566 F.Supp.2d 862, 883 (S.D.Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana’s legislature had “taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, ‘papers,’ and personal effects”) Accordingly, summary judgment is granted in favor of Plaintiffs regarding those Plaintiffs who were not on probation, parole or court-monitored supervision on January 1, 2010. 2. Monitoring Defendants apparently do not concede that § 29 — 4006(2)(b) (providing that the execution of the consent also authorizes installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by that person) is unconstitutional as to persons who are no longer on probation, parole or court-monitored supervision. During the preliminary injunction hearing, the following exchange took place between the undersigned and counsel for Defendants: THE COURT: ... [F]or those plaintiffs who are not presently on probation or parole, including those who are not subject to a lifetime of supervision, the State of Nebraska does not — does not object to the imposition of a preliminary injunction with respect to the consent to search requirement? MR. COOKSON: That’s correct, Your Honor. THE COURT: Okay. That concession does not extend, as I understand it, to the — to the — to the monitoring question, the installation of software and hardware? MR. COOKSON: That’s correct, Your Honor. THE COURT: Do you have any case law to support the — the point of view that that particular provision is ... MR. COOKSON: Yes, just one second, Your Honor. That would be on page 23. THE COURT: Uh-huh. MR. COOKSON: And 24 of our brief. THE COURT: Yeah. MR. COOKSON: It is— THE COURT: Is there any federal case law that says that, for someone who is not on probation or parole, that you can require that they consent to the installation of software or hardware on their computers? MR. COOKSON: No, Your Honor. I believe that’s a first impression issue. (Filing 326 at CM/ECF p. 10.) Neb.Rev.Stat. § 29^006(2)(b) is plainly unconstitutional under the Fourth Amendment as it pertains to persons who are no longer on probation, parole or court-monitored supervision. Without a “consent to search,” Nebraska would have no ability to enter homes or business or other places where Plaintiffs have a reasonable expectation of privacy or to “[i]n-stall[ ] ... hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.” In short, a cop would have to search for computers and then (at least to some degree) search in computers to install monitors. Doe, 566 F.Supp.2d at 881 (“[I]f the defendants’ intended monitoring of the plaintiffs’ computers and internet use would not amount to a search under the Fourth Amendment, then the defendants do not need [the challenged statute] or the plaintiffs’ consent at all”). Thus, the identical Fourth Amendment analysis that drove Judge Hamilton’s decision in Doe, id. at 874, 878-88, applies equally to the “monitoring” provision of Nebraska’s statute. When that analysis is applied, this provision of Nebraska law fails to meet the requirements of the Fourth Amendment because (1) it allows entry by law enforcement officers into places where there is a reasonable expectation of privacy by means of a coerced consent (2) followed by the installation of monitoring equipment on property for which there is a reasonable expectation of privacy by means of a coerced consent (3) without a warrant issued by a neutral judge (4) and without a showing of probable cause. Id. at 874. (“[t]he Fourth Amendment protects the privacy of Americans by placing a neutral judicial officer between the police and the privacy of the home and papers (and now computers), by requiring a warrant based on probable cause, and by requiring that the warrant be specific.... To suggest that removing a neutral judicial officer as a barrier does not significantly impair a citizen’s privacy in his home is to imply that the warrant requirement is no big deal, and that it imposes no meaningful restraints upon law enforcement. The ‘most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’ ”) (citations omitted). Several observations are in order. Initially, cases dealing with installing equipment to monitor persons during periods of court or parole supervision are not persuasive. Those eases are inapposite because they either (1) involve a judicial determination based on an individualized assessment of need or (2) deal with persons who have a lessened expectation of privacy because they have not yet been released from criminal justice supervision. Id. at 882, n. 7. Furthermore, Defendants have cited no case where a “sex offender” who has completed his or her punishment and supervision for a sex crime was held to have a weaker claim to Fourth Amendment protection than ordinary citizens. Without precedent (or at least an analogous and well-reasoned case), I am unwilling to vitiate the Fourth Amendment for individuals who have paid their debt to society. Id. at 883 (“[a] person’s status as a felon who is no longer under any form of punitive supervision therefore does not permit the government to search his home and belongings without a warrant.”). Finally, to the extent that Nebraska contends this portion of the statute can be saved by a limiting judicial construction, I reject such an approach as wholly inappropriate. The statute is unambiguous. That is, a person who has served his or her probationary or parole term and prison or jail time for a sex offense must “consent” to the installation of monitoring equipment on computers he or she possesses. Such a consent then authorizes a search incident thereto to find the computers in places where the person who gave the consent has a reasonable expectation of privacy and is followed by the installation of monitoring equipment on computers for which there is a reasonable expectation of privacy- As Chief Justice Roberts has recently reiterated regarding an unambiguous statute, the federal courts “ ‘may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction’ ” and the federal courts “ ‘will not rewrite a ... law to conform it to constitutional requirements’.... ” United States v. Stevens, — U.S. -, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) (federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was substantially overbroad, and thus, the statute was facially invalid under the First Amendment protection of speech) (citation omitted) (emphasis added). Nebraska follows that familiar rule as well. See, e.g., State v. Woods, 255 Neb. 755, 587 N.W.2d 122, 128 (1998) (holding that notice-of-alibi statute would not be construed to allow a court to order the disclosure of the identity of the defendant’s alibi witness prior to trial; stating that a statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous). Here, the challenged provision needs no construction. The words are (chillingly) plain. (3) Summary The consent to search and the consent to monitoring provisions of Neb.Rev.Stat. § 29-4006(2) violate the Fourth Amendment both facially and as applied as those provisions pertain to previously convicted “sex offenders” who were not on probation, parole, or court-monitored supervision on January 1, 2010, because they had served their time. Since Defendants have repeatedly asserted that Nebraska law mirrors the federal constitution, (e.g., filing 335 at CM7ECF pp. 4-5) it follows that the law violates the Nebraska constitution as well for this category of “sex offenders.” See Neb. Const, art. I, § 7 (Fourth Amendment equivalent). With the previous discussion in mind, the parties are directed to provide me with a stipulation designating those Plaintiffs who fit within this category—“sex offenders” who were not on probation, parole or court-monitored supervision as of January 1, 2010—together with the date when the offender was no longer under criminal justice supervision. That stipulation shall be provided within thirty days after the issuance of this Memorandum and Order. If, for some reason, the parties cannot reach agreement, they shall arrange a telephone conference with me by contacting my judicial assistant. Given the foregoing determination, it is unnecessary to decide whether the challenged statute violates the constitutional rights of persons associated with this group of Plaintiffs (like spouses, mothers or employers). Stated more simply, if those Plaintiffs previously convicted of a “sex offense” but who have served their time are not obligated to give a consent to search and consent to the installation of computer monitors, then those persons associated with such Plaintiffs have nothing to fear. B. Persons Presently on Probation, Parole or Court-Monitored Supervision Plaintiffs also argue that the statutory consent to “search” and consent to “monitoring” requirements violate the proteetions afforded by both the Fourth Amendment, and the Nebraska equivalent, to persons on probation, parole or court-monitored supervision. (Filing 329 at CM/ EOF pp. 195-203.) Additionally, Plaintiffs argue that the Fourth Amendment privacy interests of persons associated with these offenders are violated by these provisions. CKg., id. at CM/ECF pp. 45-49.) The amended complaint asserts both “facial” and “as-applied” challenges. (Id. at CM/ECF pp. 59-60.) In addition, the amended complaint sets out specific allegations by each Plaintiff regarding the harm he or she may suffer as a result of the new law. Some Plaintiffs complain of harm associated with this consent to search provision. (Id. at CM/ECF pp. 24-49.) In particular, and for example, the amended complaint describes a Plaintiff who is “still on probation,” who uses a computer for work and whose family utilizes a website that could be called a social networking site to keep in touch with family and friends. (Id. at CM/ECF p. 35.) Defendants have denied the individual Plaintiffs’ specific allegations of the amended complaint because Defendants lack sufficient knowledge or information. (Filing 333 at CM/ECF pp. 13-17.) Furthermore, the parties have not agreed on a general statement of undisputed facts or a particularized statement of facts regarding the specific claims of each of the Plaintiffs. After careful consideration, Plaintiffs’ motion for summary judgment, as well as Defendants’ motion for summary judgment, are denied regarding the statutory consent to “search,” and consent to “monitoring” requirements pertaining to persons who have been convicted of sex crimes and who are presently on probation, parole or court-monitored supervision and also respecting persons associated with such registrants. As briefly explained in the following discussion, a trial is necessary to resolve the constitutionality of this section of Nebraska’s new law as applied to this category of offenders and those associated with them. The Supreme Court has declared that “[a] probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). But, like most things, context is critical when evaluating principles enunciated by the Supreme Court. In Griffin, the Court upheld a Wisconsin law permitting any probation officer to search a probationer’s home without a warrant so long as there were “reasonable grounds” to support a search. Id. The Court explained that “the special needs of Wisconsin’s probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by ‘reasonable grounds.’ ” Id. at 876, 107 S.Ct. 3164. Subsequently, in United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497(2001), the Court elected not to apply the “special needs” doctrine in upholding a warrantless search of a probationer that was supported by “reasonable suspicion.” Rather, the Court held that the search was reasonable “under [the] general Fourth Amendment approach of ‘examining the totality of the circumstances.’ ” Id. at 118, 122 S.Ct. 587 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). In explaining its decision, the Court noted that the probationer had signed a probation order agreeing to submit to a search of his person and property by a law enforcement officer “at any[]time, with or without a search warrant, warrant of arrest or reasonable cause.” Id. at 118, 122 S.Ct. 587. The Court concluded that “the balance of these considerations requires no more than reasonable suspicion,” ultimately holding that “the warrantless search ..., supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.” Id. at 121-122, 122 S.Ct. 587. However, the Court explicitly refused to consider whether Knights’ acceptance of the search condition constituted a voluntary consent under the requirements of Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Id. at 118, 122 S.Ct. 587. In Samson v. California, 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Court applied a “totality of the circumstances” analysis in upholding a suspicionless search of a parolee conducted pursuant to a California law providing that, as a condition for release from prison, every prisoner eligible for state parole agreed to be subject to a search or seizure by a parole officer with or without a search warrant and with or without cause. After reiterating Knights’ holding that “probationers ‘do not enjoy the absolute liberty to which every citizen is entitled,’ ” id. at 849, 126 S.Ct. 2193 (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587), the Court explained that “[ejxamining the totality of the circumstances pertaining to petitioner’s status as a parolee, ... including the plain terms of the parole search condition, ... petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852, 126 S.Ct. 2193 (citations omitted). Just as in Knights, the Court explicitly refused to consider whether acceptance of the parole condition by an inmate in order to gain his release from prison was a voluntary consent under Schneckloth. Id. at 852, n. 3, 126 S.Ct. 2193. While the foregoing cases dealt with persons on probation or parole, it is worth remembering that some of the Plaintiffs are not sex offenders but they may be impacted by the requirement that an offender with whom they are associated is required to give consent. In that regard, the Supreme Court has made plain that a warrantless search of marital residence, on the basis of consent given to police by a defendant’s wife, was an unreasonable and invalid search as to the defendant, who was physically present and expressly refused to consent. Georgia v. Randolph, 547 U.S. 103, 123, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). It is clear, therefore, in some circumstances, Fourth Amendment protections exist even though one party has given a consent that might otherwise constitute a waiver of Fourth Amendment rights regarding the property subject to the waiver. Moreover, the Randolph case illustrates how the consent of one party may be used by law enforcement as a justification to impair the Fourth Amendment rights of another party. After considering the foregoing cases (and others), and having not received any comparable case law from the parties, I will undertake an examination of the statute within a discrete factual context presented by a trial in order assess the relative interests of sex offenders who are now on probation, parole or court-monitored supervision, persons associated with those offenders, and the State of Nebraska. With respect to the necessity of a trial, one must appreciate that Plaintiffs bring both a facial and an as-applied challenge and, additionally, that the parties have not agreed on a general statement of undisputed facts or a particularized statement of undisputed facts regarding the specific claims of each of the Plaintiffs. While it might be possible to resolve the facial chailenge without a trial, since a trial is required for the as-applied challenge, it makes more sense to resolve both challenges after trial. There are several important caveats that apply to a trial respecting the category of persons presently on probation, parole or court-monitored supervision. Initially, the record may suggest that none of the Plaintiffs will be on probation, parole or court-monitored supervision at the time of trial because they will have served their time. If it turns out that none of the Plaintiffs will be on probation, parole or court-monitored supervision because they have served their time, then the “as-applied” challenge to the statute regarding persons on probation, parole or court-monitored supervision is probably moot, or at least not ripe, because none of the Plaintiffs fit into that category and there is no threat to them. Additionally, if none of the Plaintiffs are on probation, parole, or court-monitored supervision at the time of trial, one wonders whether Plaintiffs have standing to assert a facial challenge to the extent the statute pertains to persons who are probation, parole or court-monitored supervision. The parties have also given too little thought to another potential class of persons. The parties do not adequately address the class of persons who have not yet committed a sex offense, but who may commit such an offense in the future and thus become subject to this law. Do Plaintiffs purport to represent such a group? If they do, one must ask whether Plaintiffs have standing to assert a claim for that group. Because of these concerns, the lawyers are directed to confer. After that, they should address these matters (preferably by stipulation) as the case moves forward. C. Fourth Amendment— Recapitulation I have decided that on Fourth Amendment grounds and the equivalent provision of the Nebraska Constitution, Neb.Rev. Stat. § 29^4006(2) is unconstitutional as it regards 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. In this regard, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion for summary judgment is denied. For persons who were previously convicted of sex crimes and who were on probation, parole or court-monitored supervision on or after January 1, 2010, a trial is required to determine the constitutionality of Neb.Rev.Stat. § 29-4006(2) under the Fourth Amendment and the equivalent provision of the Nebraska Constitution. In this regard, Plaintiffs’ motion for summary judgment and Defendants’ motion for summary judgment are denied. III. Ninth and Tenth Causes of Action — Due Process — Regarding Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010) Plaintiffs attack Neb.Rev.Stat. § 28-322.05, which makes it a crime for certain offenders to use portions of the Internet. Plaintiffs claim that this statute violates the Due Process Clause of the Fourteenth Amendment and Nebraska’s equivalent constitutional provision. (Filing 329 at CM/ECF pp. 20-21, 54-55, n. 12.) They bring a facial and an as-applied challenge. (Id. at CWECF p. 59.) In its entirety, Neb.Rev.Stat. § 28-322.05 states: (1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses 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 its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender: (a) Kidnapping of a minor pursuant to section 28-313; (b) Sexual assault of a child in the first degree pursuant to section 28-319.01; (c) Sexual assault of a child in the second or third degree pursuant to section 28-320.01; (d) Incest of a minor pursuant to section 28-703; (e) Pandering of a minor pursuant to section 28-802; (f) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or 28-1463.05; (g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28-813.01; (h) Criminal child enticement pursuant to section 28-311; (i) Child enticement by means of an electronic communication device pursuant to section 28-320.02; (j) Enticement by electronic communication device pursuant to section 28-833; or (k) An attempt or conspiracy to commit an offense listed in subdivisions (l)(a) through (l)(j) of this section. (2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony. Relevant definitions are found in Neb. Rev.Stat. § 29-4001.01, to wit: (3) Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users; (10) Instant messaging means 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; (13) Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator’s permission, consent, invitation, or authorization, and (C) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator’s profile; In particular, Plaintiffs claim that this criminal statute is “void for vagueness.” As I next briefly explain, I shall deny Plaintiffs’ motion for summary judgment, and Defendants’ motion for summary judgment, because the record is inadequate to resolve this claim without a trial. First, there is good reason to believe that some of the Plaintiffs who are convicted offenders would be subject to this criminal statute as they have qualifying convictions and regularly use computers for work and otherwise. (E.g., filing 6-1 at CM7ECF pp. 23-25; filing 346-11 at CM7ECF pp. 7-8.) There is also good reason to believe that these Plaintiffs, their coworkers and family members would be adversely impacted by the inability of such offenders to use portions of the Internet while attempting to comply with this statute. (E.g., filing 6-1 at CM7ECF p. 23-24.) Second, the vagueness doctrine is not an outgrowth of the First Amendment (although it is applied in cases where there are First Amendment issues), but rather the doctrine is a function of the Due Process Clause of the Fifth Amendment. See, e.g., United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act provision criminalizing the pandering or solicitation of child pornography is not overbroad under the First Amendment, and that provision also is not impermissibly vague under the Due Process Clause). 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 lacking in standards that it authorizes or encourages seriously discriminatory enforcement. Id.; See also, Skilling v. United States, — U.S. -, 130 S.Ct. 2896, 2933-34, 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). Importantly, “what 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.” Williams, 553 U.S. at 306, 128 S.Ct. 1830. Third, a trial is necessary on this claim because both parties have failed to present an undisputed record of material facts showing how this statute actually works. In particular, but not by way of limitation, I do not have a factual record that is undisputed showing how an offender would know whether using a particular site or service is banned because that site or service “allows a person who is less than eighteen years of age to access or use” the site or service. My independent research (Attachment A) shows that certain sites prohibit, as a matter of policy, use by persons whose ages are 18 or under, but, as a matter of practice, allow access to the sites simply by typing in any qualifying birthday. (E.g., Attachment A at p. 20 (example 2), regarding “travel hospitality.”) If a lot of minors actually log into such a site, has such a site “allowed” the youngsters to use the site because the site has done nothing to stop them? How does an offender know whether a site or service “allows a person who is less than” 18 to “access or use” the site or service? What does “allows” mean in practice? Does it only cover sites or services that explicitly permit use by youngsters as a matter of stated policy? If so, does an offender violate the statute if the offender fails to look for such a policy as a part of his “use”? Does the word “allows” include any site or service that lacks a policy but actually permits youngsters, as a matter of practice, to use the site or service? If so, how is the offender to determine whether young people are “allowed” to use the site or service as a matter of practice? If a site has no age restriction and thus “allows” minors to “access” the site, but no minors actually “use” the site, has an offender who “uses” the site committed a crime when everyone else who “uses” the site is an adult? Other examples abound, but the point is made. I need to know how this statute works in practice in order to judge the “void for vagueness” claim both facially and as-applied, and the present record is insufficient. Moreover, I need to know how the statute is likely to be applied in practice to judge whether a limiting construction could be used to save the statute. Cf. Skilling, 130 S.Ct. at 2926 (before applying a limiting construction to avoid a “void for vagueness” challenge to an “honest services” prosecution under 18 U.S.C. § 1346, the Court said: “[t]o place Skilling’s [void for vagueness] constitutional challenge in context, we first review the origin and subsequent application of the honest-services doctrine”). Given the myriad of Internet options, the parties would be well-advised to present a fair sample of the relevant universe at trial. In this regard, I encourage the parties to think about the use of a joint expert to present objective testimony on this claim and the other “Internet” claims that will be resolved at trial. A person who is both legally and technically trained would be ideal. Someone like Professor Eugene Volokh, who holds a degree in mathematics and computer science, who worked for 12 years as a computer programmer, and who is a highly regarded legal academic might be such a person. See Eugene Volokh Biography, available at www.law.ucla.edu. And, to be frank, rather than dueling experts, I would appreciate hearing from someone who has no particular allegiance to the positions of either side. Thus, I strongly suggest that the parties consider jointly hiring an expert. Again, however, it is the lawyers’ responsibility to present the evidence, and I will respect their decisions. TV. Fourteenth and Fifteenth Causes of Action — First Amendment — Regarding Neb.Rev.Stat. § 29-4006(1) (k) & (s) (West, Operative Jan. 1, 2010) and Neb.Rev.Stat. § 28-322.05 (West Operative Jan. 1, 2010) Plaintiffs attack section 29^4006(l)(k) & (s) and section 28-322.05 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) and because the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. (E.g., filing 329 at CM/ECF pp. 17, 56-57.) Plaintiffs bring both a facial and an as-applied challenge. (Id. at CM/ECF p. 60.) A person who is required to register must supply their “remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the deviee[.]” Neb. Rev.Stat. § 29-4006(l)(k). A registrant must also supply: All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. Neb.Rev.Stat. § 29 — 4006(l)(s) (emphasis added). In pertinent part, Neb.Rev.Stat. § 28-322.05 significantly restricts Internet use by some offenders and states the following: (1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person ivho is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender: [listing specific offenses] ... I find and conclude that a trial is required regarding the First Amendment challenges to these two statutes. Accordingly, I will deny the motions for summary judgement submitted by both parties. I do so for essentially the same reasons that I have previously decided a trial is necessary. The parties have not given me 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. Once again, I refer the parties to Attachment A as an example of the void in this record. Briefly, I next explain in somewhat more detail why a trial is required. People who are convicted of crimes, even felony crimes related to children, do not forfeit their First Amendment right to speak by accessing the Internet. See, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005) (condition of supervised release, imposed upon a man who had been convicted of receiving and possessing child pornography, which completely barred defendant’s access to computers and the Internet was a greater deprivation of defendant’s First Amendment rights than was reasonable). Indeed, the Eighth Circuit Court of Appeals has described Internet access as “an important medium of communication, commerce and information-gathering” and has required that restrictions imposed for criminal justice supervision purposes be “narrowly-tailored.” Id. The requirement that restrictions upon the speech of a sex offender must be narrowly tailored applies equally to the civil regulation of sex offenders who use the Internet. See, e.g., White v. Baker, 696 F.Supp.2d 1289 (N.D.Ga.2010) (requirement for former sexual offender to provide his Internet email addresses, usernames, and passwords to law enforcement personnel was not sufficiently narrow to accomplish state’s legitimate interest in protecting children from Internet predators, in violation of offender’s anonymous First Amendment free speech rights, where there was possibility of public disclosure and broad use of that information and, further, offender had to report user names and passwords used on “interactive online forums” when that term arguably included forums (such as blogs) in which protected speech occurred). A content-neutral regulation of speech is permitted if the regulation is narrowly tailored to serve a significant governmental interest, and if it leaves open ample alternative channels for communication of information. See, e.g., 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-speech-restrictive alternative. Id. at 798, 109 S.Ct. 2746. However, this standard “does not mean that a ... regulation may burden 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 does not serve to advance its goals.” Id. at 799, 109 S.Ct. 2746. Several examples will show why a trial is necessary. In particular, the examples illustrate the need for concrete facts regarding the “narrowly tailored” requirement. Example 1: Considering Neb.Rev.Stat. § 29 — 4006(l)(s), one wonders whether a sex offender’s posting to a blog site maintained by a law professor for the purpose of discussing sentencing issues, where the posting decried sex offender registration laws, would be covered by the statute and thus reportable. If so, one wonders whether the foregoing statute is narrowly tailored. Example 2: Considering Neb.Rev.Stat. § 28-322.05, one wonders what the word “allows” means. In that same vein, one wonders whether a site that allows users to connect with individuals who speak different languages for the purposes of enhancing language learning as native speakers and to help non-native speakers improve their language skills is off limits because persons over the age of 13 can, as a matter of the site’s policy, access the site. If so, one wonders whether the foregoing statute is narrowly tailored. Example 3: Doe 35 is probably covered by the offenses listed in Neb.Rev.Stat. § 28-322.05 because, at 23 years of age and after having consensual sex (once) with a 14 year old female, he was convicted of “child molestation” under Washington law. (Filing 330 at CM/ECF p. 33.) There is no indication that Doe 35 used a computer to commit his crime. If it is true that