from the Iowa District Court for Linn County, Mitchell E.
appeals conviction for violating Internet identifier
reporting requirement of Iowa's sex offender registration
B. Mears of Mears Law Office, Iowa City, for appellant.
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Jerry Vander Sanden, County Attorney, and
Rena Schulte, Assistant County Attorney, for appellee.
legislature periodically updates statutes to keep pace with
technology. Convicted sex offenders have long been required
to report and update their resident addresses with the local
sheriff. The sex offender registry alerts neighbors,
especially those with children, of sex offenders and helps
law enforcement track them. In this appeal, an adult
registered sex offender presents constitutional challenges to
his conviction for violating a more recent statutory
requirement that he report his "Internet
identifiers" (such as names used on social media).
2007, the offender pleaded guilty to lascivious acts with a
child and was placed on the sex offender registry pursuant to
Iowa Code chapter 692A (2007). The legislature's 2009
amendment to that statute added the requirement that the
offender disclose his Internet identifiers to the local
sheriff and update the sheriff with any subsequent changes.
The law is intended to prevent or detect a sex offender's
use of Internet communications to lure new victims.
2017, the offender was charged with failing to report his
Internet identifier for a Facebook account he was using under
an assumed name. He argued that the statute, as applied to
him, violated the Free Speech and Ex Post Facto Clauses in
the Federal and State Constitutions. The district court
declined to depart from our precedent, holding that sex
offender registration requirements are not punitive, and
rejected his ex post facto and free speech challenges. He
appealed his resulting conviction, and his appellate briefing
relies in part on our decision in In re T.H., 913
N.W.2d 578 (Iowa 2018) (holding that sex offender
registration requirements for a juvenile offender
were punitive). We retained his appeal.
review, we hold In re T.H. applies only to juvenile
offenders and the district court correctly rejected the ex
post facto challenge. Applying intermediate scrutiny, we hold
the Internet identifier reporting requirement is content
neutral, serves a significant state interest, is narrowly
tailored, and therefore withstands challenge under the First
Amendment and article I, section 7 of the Iowa Constitution.
The statute allows the offender to use social media without
requiring disclosure of passwords, the offender can update
his Internet identifiers with the sheriff by phone or email
within five business days, and similar Internet identifier
reporting requirements have been upheld by other courts.
Accordingly, we affirm the district court judgment.
Background Facts and Proceedings.
2007, Lloyd Aschbrenner, then age thirty-seven, pleaded
guilty to one count of lascivious acts with a child in
violation of Iowa Code section 709.8(3) (2007), a class
"D" felony, after he molested his thirteen-year-old
stepdaughter. The district court sentenced Aschbrenner to a
five-year suspended prison sentence, supervised probation,
and a ten-year special sentence requiring him to register as
a sex offender. In 2008 and 2014, Aschbrenner was convicted
of sex offender registry violations, each treated as a first
offense, in Benton County and Linn County, respectively. As a
result of his 2014 conviction, his registration requirement
was extended another ten years. Id. §
the sex offender registration statute in force when
Aschbrenner was convicted and sentenced in 2007, he was
required to provide the sheriff with his name, address, and
telephone number. Iowa Code § 692A.3 (2007). He was
obligated to report any changes. Id. In 2009, the
legislature rewrote and renumbered chapter 692A,
significantly amending the statute. 2009 Iowa Acts ch. 119,
div. I (codified as amended at Iowa Code ch. 692A (2011)).
One of the amendments changed the amount of information an
offender was required to provide to the sheriff:
A sex offender shall appear in person to register with the
sheriff of each county where the offender has a residence,
maintains employment, or is in attendance as a student,
within five business days of being required to register under
section 692A.103 by providing all relevant information to the
Iowa Code § 692A.104(1). Chapter 692A defines
"relevant information" to include twenty-one
categories. Id. § 692A.101(23)(a). The
one at issue here is "Internet identifier," defined
an electronic mail address, instant message address or
identifier, or any other designation or moniker used for
self-identification during internet communication or posting,
including all designations used for the purpose of routing or
self-identification in internet communications or postings.
Id. § 692A.101(15). The statute does not
prohibit the offender from using the Internet and does not
require the offender to provide the sheriff with any
passwords. See Iowa Code ch. 692A.
offender is required to update the sheriff within five days
of any changes in his or her Internet identifiers but need
not report in person. Id. § 692A.104(3). The
legislature authorized the Iowa Department of Public Safety
(DPS) to promulgate rules implementing the reporting
requirements. Id. The DPS issued a rule allowing
offenders to update "any item of relevant information
other than changes of address, places of attendance as a
student, or places of employment . . . in person, by
telephone, or electronically, within five days of the change
occurring." Iowa Admin. Code r. 661-83.3(4) (2009).
member of the public may contact the sheriff's office to
inquire about "relevant information from the registry
regarding a specific sex offender," including whether a
particular Internet identifier belongs to a registered sex
offender. Id. § 692A.121(5)(a). But
"[s]ex offender registry records are confidential
records not subject to examination and copying by a member of
the public and shall only be released as provided in this
section." Id. § 692A.121(14).
April 24, 2017, the Iowa Division of Criminal Investigation
(DCI) received an anonymous tip through the sex offender
registry website that Aschbrenner had a Facebook profile
under the name "Cyrus Templar." Although
Aschbrenner had reported an email address to the sheriff, he
had not reported his Facebook account.
agents investigated the tip and obtained records from
Mediacom and Facebook showing two IP addresses linked to the
Facebook account: one belonging to Aschbrenner's former
employer and another belonging to the woman who owned the
residence where Aschbrenner resided. The DCI also looked at
Cyrus Templar's Facebook page. The page showed he was a
member of a band called Lipstick Slick, which frequently
performed at bars as well as at festivals minors attend. A
DCI agent and a Linn County sheriff's deputy spoke to
Aschbrenner's former employer, who identified Aschbrenner
from a photo on Lipstick Slick's Facebook page. The
investigators also spoke to a band member who told them
Aschbrenner, who she knew as "Buddy," had been
playing in the band since February 2017. When investigators
interviewed Aschbrenner, he admitted the Cyrus Templar
Facebook page was his and that he had failed to report it to
August 2017, Aschbrenner was charged by trial information
with a sex offender registry violation, second or subsequent
offense, in violation of Iowa Code sections 692A.103, .104,
and .111 for "fail[ing] to provide all 'relevant
information' concerning his internet identities to the
Linn County Sheriff's Department as required by
filed a motion to dismiss, arguing the Internet
identifier-reporting requirement violates the prohibitions on
ex post facto punishment and the freedom of speech guarantees
in the United States and Iowa Constitutions. The State
resisted. The district court denied the motion.
parties stipulated to a bench trial on the minutes of
testimony. Aschbrenner was found guilty as charged. The
district court imposed a five-year suspended sentence, two
years of supervised probation, and a $750 fine. Aschbrenner
appealed, asserting the same constitutional challenges to the
Internet identifier-reporting requirement. We retained his
Scope of Review.
standard of review for rulings on constitutional challenges
to a sex offender registration statute is de novo. See In
re T.H., 913 N.W.2d at 582.
[W]e must remember that statutes are cloaked with a
presumption of constitutionality. The challenger bears a
heavy burden, because [he] must prove the unconstitutionality
beyond a reasonable doubt. Moreover, "the challenger
must refute every reasonable basis upon which the statute
could be found to be constitutional." Furthermore, if
the statute is capable of being construed in more than one
manner, one of which is constitutional, we must adopt that
State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)
(quoting State v. Hernandez-Lopez, 639 N.W.2d 226,
233 (Iowa 2002)), superseded by statute on other grounds
by In re T.H., 913 N.W.2d at 588.