Doe, SORB No. 380316 v. Sex Offender Registry Board , 473 Mass. 297 ( 2015 )


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    SJC-11823
    JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 380316   vs.
    SEX OFFENDER REGISTRY BOARD.
    Middlesex.     September 9, 2015. - December 11, 2015.
    Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
    & Hines, JJ.
    Sex Offender. Sex Offender Registration and Community
    Notification Act. Constitutional Law, Sex offender, Burden
    of proof. Due Process of Law, Sex offender, Hearing,
    Standard of proof. Practice, Civil, Sex offender, Standard
    of proof. Internet.
    Civil action commenced in the Superior Court Department on
    November 21, 2013.
    The case was heard by Dennis J. Curran, J., on a motion for
    judgment on the pleadings.
    The Supreme Judicial Court granted an application for
    direct appellate review.
    Brandon L. Campbell for the plaintiff.
    David L. Chenail (Elisha W. Willis with him) for the
    defendant.
    Beth L. Eisenberg & Larni S. Levy, Committee for Public
    Counsel Services, & Eric B. Tennen, for Committee for Public
    Counsel Services & another, amici curiae, submitted a brief.
    Andrew S. Crouch, for Youth Advocacy Division of the
    Committee for Public Counsel Services & another, amici curiae,
    2
    submitted a brief.
    LENK, J.   We are asked in this case to consider anew the
    standard of proof that the Sex Offender Registry Board (SORB)
    must satisfy in order to classify a convicted sex offender under
    the provisions of the sex offender registry law, G. L. c. 6,
    §§ 178C-178Q.   The plaintiff, John Doe No. 380316 (Doe), is a
    convicted sex offender who was classified by a preponderance of
    the evidence as having a moderate risk of reoffense.      In Doe,
    Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd.,
    
    428 Mass. 90
    , 91 (1998) (Doe No. 972), we held that SORB need
    only prove the appropriateness of a sex offender's risk
    classification by a preponderance of the evidence.      In light of
    amendments to the sex offender registry law and other
    developments since our decision in that case, however, Doe
    contends that the preponderance standard no longer adequately
    protects his due process rights.     We agree.   For the reasons
    stated below, we hold that SORB is constitutionally required to
    prove the appropriateness of an offender's risk classification
    by clear and convincing evidence.1
    1.   Background.   When Doe was thirty-five years old, he
    1
    We acknowledge the amicus briefs submitted by the
    Committee for Public Counsel Services and the Massachusetts
    Association for the Treatment of Sexual Abusers, and by the
    Youth Advocacy Division of the Committee for Public Counsel
    Services and the Children's Law Center of Massachusetts.
    3
    reportedly "twisted" the penis of his six year old nephew
    through the child's underwear while both were in the bathroom.
    Doe apologized to the boy immediately after the incident, and
    they hugged each other.   After several incidents of incontinence
    over the following weeks, however, the boy told his mother what
    had happened, and she thereafter reported the incident to the
    police.   Following a jury trial, Doe was found guilty of
    indecent assault and battery on a child under fourteen, G. L.
    c. 6, § 13B, a sex offense requiring SORB registration under
    G. L. c. 6, §§ 178C-178CD.2   Doe had not previously been
    convicted of a sex offense.   On or about June 14, 2013, while
    Doe was still incarcerated, SORB preliminarily recommended that
    Doe be classified as a level three sex offender, the level
    assigned to convicted sex offenders posing the highest risk of
    reoffense.   After Doe challenged that recommendation, however, a
    SORB hearing examiner determined by a preponderance of the
    evidence that he was more appropriately classified as a
    level two sex offender, the level assigned to convicted sex
    offenders posing only a moderate risk of reoffense.   That
    determination was made on October 23, 2013.
    The hearing examiner relied on the regulatory factors
    promulgated by SORB, 803 Code Mass. Regs. § 1.40(1)-(24) (2013),
    2
    Doe was also convicted of other offenses arising out of
    the same incident that are not relevant to our decision in this
    case.
    4
    to determine Doe's degree of dangerousness and risk of
    reoffense.   The examiner particularly noted that Doe had
    sexually abused his "extravulnerable" nephew,3 that he appeared
    to be unwilling to admit to the offense despite his conviction,
    and that the victim suffered continuing emotional trauma as a
    result of the incident.    The examiner recognized that some
    "favorable facts" diminished Doe's risk of reoffense, including
    that Doe had not been reported for disciplinary violations and
    had attended Alcoholics Anonymous meetings during his
    incarceration, and that he would likely have a stable home
    environment living with his sister upon his release.4
    Nevertheless, the examiner found that these mitigating factors
    only somewhat offset the aggravating factors present in Doe's
    case, and determined that Doe was appropriately classified as a
    level two offender.
    Doe sought judicial review in the Superior Court, pursuant
    to G. L. c. 30A, § 14, and G. L. c. 6, § 178M.    His level two
    classification was affirmed and we granted Doe's application for
    direct appellate review.    On appeal, Doe argues that due process
    3
    As defined by 803 Code Mass. Regs. § 1.40(9)(c)(4) (2013),
    "'extra-vulnerable' means any condition or circumstance,
    including, but not limited to a physical or mental condition
    that tends to render a victim more susceptible to sexual
    assault. An extra-vulnerable victim shall also include a victim
    under the age of ten and over the age of [sixty]."
    4
    The sister is not the same person as the mother of Doe's
    nephew.
    5
    under both the Fourteenth Amendment to the United States
    Constitution and art. 12 of the Massachusetts Declaration of
    Rights requires SORB to prove its classification determinations
    by clear and convincing evidence.   Additionally, he argues that
    this court should reverse his classification because SORB failed
    to prove that he poses a level two degree of risk and
    dangerousness to the public even under a preponderance of the
    evidence standard.   Finally, Doe asks this court to order SORB
    to stop disseminating his registry data on the Internet, on the
    grounds that the 2013 amendment to the sex offender registry law
    that required the Internet publication of level two offenders'
    registry information, St. 2013, c. 38, §§ 7, 9, was not
    retroactive as applied to him.
    We conclude that due process requires that a sex offender's
    risk level be proved by clear and convincing evidence.    The risk
    classifications that SORB must make now have consequences for
    those who are classified that are far greater than was the case
    when we decided Doe No. 972.   The preponderance standard no
    longer adequately protects against the possibility that those
    consequences might be visited upon individuals who do not pose
    the requisite degree of risk and dangerousness.   Accordingly, we
    vacate the decision of the Superior Court affirming SORB's
    classification of Doe as a level two sex offender.   We remand
    the matter to the Superior Court for entry of an order to SORB
    6
    to conduct an evidentiary hearing de novo under the heightened
    standard, and to cease disseminating Doe's registry information
    on the Internet while that hearing is pending.       At the hearing,
    both Doe and SORB may introduce new evidence relevant to a final
    classification determination.    The hearing examiner may also
    consider evidence, but not findings of fact, from Doe's original
    hearing.     Contrast Doe, Sex Offender Registry Bd. No. 7083 v.
    Sex Offender Registry Bd., 
    472 Mass. 475
    , 489-490 (2015) (Doe
    No. 7083).
    2.     Standard of review and stare decisis.     A reviewing
    court may set aside or modify a hearing examiner's decision if
    it was:
    "(a) In violation of constitutional provisions; or
    "(b) In excess of statutory authority or jurisdiction
    of the agency; or
    "(c) Based upon an error of law; or
    "(d) Made upon unlawful procedure; or
    "(e) Unsupported by substantial evidence; or
    "(f) Unwarranted by facts found by the court on the
    record . . . ; or
    "(g) arbitrary or capricious, an abuse of discretion,
    or otherwise not in accordance with law."
    G. L. c. 30A, § 14 (7).     The appellant bears the burden of
    showing that one of these conditions has been met.      See Coe v.
    Sex Offender Registry Bd., 
    442 Mass. 250
    , 258 (2004).
    7
    Doe argues that SORB committed a constitutional error by
    proving his risk of reoffense by only a preponderance of the
    evidence.5   Because we held explicitly in Doe No. 972, 428 Mass.
    at 91, that "the appropriateness of an offender's risk
    classification must be proved by a preponderance of the
    evidence," to rule in Doe's favor we must overrule our decision
    in that case.6   The principle of stare decisis would normally
    5
    Doe also argues that it was error for SORB to classify him
    as a level two sex offender even under the preponderance
    standard, because the evidence considered by the hearing
    examiner did not support the conclusion that he posed the
    requisite degree of risk and dangerousness. If this claim were
    correct, we would not need to reach the question whether due
    process requires a higher standard of proof than a preponderance
    of the evidence. In reviewing the hearing examiner's decision,
    however, we "give due weight to the experience, technical
    competence, and specialized knowledge of the agency, as well as
    to the discretionary authority conferred upon it." G. L.
    c. 30A, § 14 (7) (g). "A court may not displace an [agency's]
    choice between two fairly conflicting views, even though the
    court would justifiably have made a different choice had the
    matter been before it de novo." Ten Local Citizen Group v. New
    England Wind, LLC, 
    457 Mass. 222
    , 231 (2010), quoting Southern
    Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations
    Comm'n, 
    386 Mass. 414
    , 420 (1982). Doe's level two
    classification was supported by substantial evidence and was not
    otherwise arbitrary or capricious: the hearing examiner
    determined that mitigating factors present in Doe's case did not
    sufficiently counterbalance other factors indicating that Doe
    posed a risk of reoffense. Given this, we conclude that Doe was
    appropriately classified as a level two risk and danger based
    upon a preponderance of the evidence.
    6
    The Legislature codified the preponderance standard in
    1999, following our decision in Doe, Sex Offender Registry Bd.
    No. 972 v. Sex Offender Registry Bd., 
    428 Mass. 90
     (1998) (Doe
    No. 972). See G. L. c. 6, § 178L (2), inserted by St. 1999,
    c. 74, § 2. This is not dispositive of the question before us,
    however, since due process "is not a technical conception with a
    8
    prevent us from reconsidering settled law.    See Stonehill
    College v. Massachusetts Comm'n Against Discrimination, 
    441 Mass. 549
    , 562, cert. denied sub nom. Wilfert Bros. Realty Co.
    v. Massachusetts Comm'n Against Discrimination, 
    543 U.S. 979
    (2004).    However, "[t]he force of stare decisis is at its nadir
    in cases concerning procedural rules that implicate fundamental
    constitutional provisions."    Alleyne v. United States, 
    133 S. Ct. 2151
    , 2163 n.5 (2013).    Furthermore, "[t]he requirements of
    procedural due process are pragmatic and flexible, not rigid or
    hypertechnical."    Roe v. Attorney Gen., 
    434 Mass. 418
    , 427
    (2001).    Given the flexible nature of the procedural due process
    right at issue in this case, and given the substantial changes
    to the sex offender registry law and other developments since
    our decision in Doe No. 972, we think it appropriate to revisit
    that decision.
    In order to determine whether reliance on the preponderance
    standard violated Doe's due process rights, we first consider
    our reasoning in Doe No. 972 in light of the 1996 sex offender
    law in effect at the time it was decided.    See St. 1996, c. 239,
    § 1.    We then examine subsequent amendments to the sex offender
    registry law and other developments that draw into question
    fixed content unrelated to time, place and circumstances."
    Mathews v. Eldridge, 
    424 U.S. 319
    , 334 (1976), quoting Cafeteria
    & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 
    367 U.S. 886
    , 895 (1961).
    9
    whether the preponderance standard continues adequately to
    protect Doe's due process rights.    Finally, we consider the
    standard of proof that due process requires in light of these
    changes.
    3.     The 1996 sex offender registry law.   In 1996, the
    Legislature passed the State's first sex offender registry law,
    St. 1996, c. 239, § 1.     An early version of the bill that was
    eventually enacted described its purpose as "to protect the
    public from the 'danger of recidivism posed by sex offenders'
    and to aid law enforcement officials in the apprehension of sex
    offenders by providing them with 'additional information
    critical to preventing sexual victimization and to resolving
    incidents involving sexual abuse and exploitation.'"       Doe No.
    972, 428 Mass. at 91-92, quoting Opinion of the Justices, 
    423 Mass. 1201
    , 1204 (1996).    To achieve these aims, the enacted
    statute required individuals convicted of any offenses from a
    list of enumerated "sex offenses" to register with the State
    their names, addresses, and identifying information.       G. L.
    c. 6, §§ 178C-178F, inserted by St. 1996, c. 239, § 1.       The
    State disseminated that information publicly to a lesser or
    greater extent depending on the level of risk of reoffense that
    a registered offender was deemed to pose.    G. L. c. 6,
    § 178K (2), inserted by St. 1996, c. 239, § 1.
    The 1996 law enumerated a set of factors that the
    10
    Legislature considered relevant to convicted sex offenders' risk
    of reoffense.   G. L. c. 6, § 178K (1), inserted by St. 1996,
    c. 239, § 1.    In addition, the law created SORB to "promulgate
    guidelines for determining the level of risk of reoffense" of
    convicted sex offenders, and to apply those guidelines "to
    assess the risk level of particular offenders."    Id.    An
    offender assessed by SORB as posing a low risk of reoffense was
    classified as a level one offender, and his or her registry
    information was only disclosed to police departments where he or
    she lived or worked, to the Federal Bureau of Investigation, and
    upon request to adults for their own protection or for the
    protection of individuals in their care.    G. L. c. 6, §§ 178I-
    178K, inserted by St. 1996, c. 239, § 1.    An offender assessed
    by SORB as posing a moderate risk of reoffense was classified as
    a level two offender, and his or her registry information was
    additionally disclosed to organizations such as schools, day
    care centers, religious and youth organizations, and sports
    leagues in the offender's communities.    G. L. c. 6,
    § 178K (2) (b), inserted by St. 1996, c. 239, § 1.      A sex
    offender assessed by SORB as posing a high risk of reoffense was
    classified as a level three offender, and, in addition to the
    dissemination provided for level two offenders, his or her
    information was actively disseminated by the police to
    individual members of the public likely to encounter the
    11
    offender.    G. L. c. 6, § 178K (2) (c), inserted by St. 1996,
    c. 239, § 1.    Sex offenders were not entitled to an evidentiary
    hearing to contest SORB's risk assessment.       See G. L. c. 6,
    §§ 178K-178M, inserted by St. 1996, c. 239, § 1.
    4.      Doe No. 972.   In Doe No. 972, 428 Mass. at 98, we held
    that convicted sex offenders had a constitutional right under
    the Fourteenth Amendment and art. 12 to an evidentiary hearing
    before SORB regarding the appropriateness of their risk level
    classifications.     We further held that SORB was required to
    prove the appropriateness of those classifications by a
    preponderance of the evidence.     Id. at 103.
    To determine whether the preponderance standard satisfied
    due process, we applied the test set forth by the United States
    Supreme Court in Mathews v. Eldridge, 
    424 U.S. 319
     (1976)
    (Mathews).     That test balances the private interests affected by
    an agency decision; the risk of an erroneous deprivation of
    those interests; the probable value, if any, of additional or
    substitute procedural safeguards; and the governmental interests
    involved.    See Doe No. 972, 428 Mass. at 100, citing Mathews,
    
    supra at 335
    .
    With respect to the private interests affected, we
    explained that a convicted sex offender did not face a potential
    loss of liberty as a result of his or her classification level,
    and that "the stigma of being required to register as a sex
    12
    offender and of having information regarding sex offenses
    disseminated to the public" was not substantial enough to
    require a heightened standard of proof.       Doe No. 972, 428 Mass.
    at 102.    The risk of an erroneous classification was thought to
    be minimal because both the offender and SORB had the
    opportunity to present evidence and examine and cross-examine
    witnesses at a classification hearing, because SORB was required
    to make "particularized, specific, and detailed findings" based
    on a set of statutory factors, and because the offender could
    appeal SORB's decision in court.      Id.   We noted also that
    applying a higher standard might lead to erroneous
    underclassifications.    Id. at 102-103.
    Weighing the State's interest in "protect[ing] children and
    other vulnerable people from recidivistic sex offenders" against
    these factors, we decided that due process under the State and
    Federal Constitutions required proof of the appropriateness of
    an offender's risk classification only by a preponderance of the
    evidence.   Id. at 103-104.   In our view at the time, the
    "possible injury to sex offenders from being erroneously
    overclassified" was "nearly equal" to "any harm to the State
    from an erroneous underclassification."       Id. at 104 n.14.
    5.     Subsequent developments.    The sex offender registry law
    has undergone significant revisions since our decision in Doe
    No. 972.    Amendments to the statute in 1999 provided for risk
    13
    classification hearings and codified the preponderance standard
    as constitutional safeguards.    See G. L. c. 6, § 178L (2),
    inserted by St. 1999, c. 74, § 2.    On balance, however,
    legislative changes have more often imposed extra burdens on
    registered offenders than provided them with additional
    protections.   More offenses are now subject to a registration
    requirement.   Sex offenders face increasingly stringent
    affirmative reporting requirements, and the penalties for
    failing to meet those requirements are harsher.   They are also
    confronted with other limitations based on their registered sex
    offender status.    Information about registered offenders is
    being disseminated more broadly, including on the Internet.
    Furthermore, there is reason to question whether SORB's risk
    classification guidelines continue to reflect accurately current
    scholarship regarding statutory factors that concern risk
    assessment.    These developments are described in turn below.
    Additional offenses requiring registration have been added
    to the sex offender registry law at least four times since we
    decided Doe No. 972.    See St. 2011, c. 178, §§ 1-3; St. 2010,
    c. 267, §§ 1-3; St. 2003, c. 77, § 3; St. 1999, c. 74, § 2.
    While the sex offenses enumerated in 1996 were mostly crimes of
    physical violence against children and the developmentally
    disabled, see G. L. c. 6, § 178C, inserted by St. 1996, c. 239,
    § 1, many of the offenses added later have not been similarly
    14
    targeted.   See, e.g., St. 2011, c. 178, §§ 1-3 (enticing child
    under eighteen via electronic communication); St. 1999, c. 74,
    § 2 (enticing person for prostitution; incestuous marriage or
    intercourse; and disseminating child pornography).   The addition
    of these offenses may make more challenging the task of
    accurately classifying the risk of reoffense that specific
    offenders pose.   Cf. Doe No. 972, 428 Mass. at 105 (Marshall,
    J., concurring in part and dissenting in part) ("careful and
    individualized due process is necessary to sort sexual predators
    likely to repeat their crimes from large numbers of offenders
    who pose no danger to the public").
    Registration requirements have also steadily become more
    burdensome.   Already at the time we decided Doe No. 972, members
    of this court had recognized that registration represented a
    "continuing, intrusive, and humiliating regulation of the person
    himself," Doe v. Attorney Gen., 
    426 Mass. 136
    , 149 (1997)
    (Fried, J., concurring), and that it cast "a continuing shadow
    of further criminal sanctions and possible reincarceration" on
    offenders, Doe No. 972, 428 Mass. at 106 (Marshall, J.,
    concurring in part and dissenting in part).   These concerns
    resonate today:   in addition to the requirements imposed in
    1996, all offenders must now register any secondary addresses
    15
    they have,7 register the names and addresses of the institutions
    of higher learning they attend,8 and re-register ten days prior
    to establishing a new address.9    Homeless offenders are
    additionally required to re-register every thirty days, and to
    wear a global positioning system device at all times.10
    Furthermore, on release from prison, offenders are subject to
    intensive parole conditions.11    Taken together, compliance with
    7
    Secondary addresses include "all places where a sex
    offender lives, abides, lodges, or resides for a period of
    [fourteen] or more days in the aggregate during any calendar
    year and which is not a sex offender's primary address; or a
    place where a sex offender routinely lives, abides, lodges, or
    resides for a period of [four] or more consecutive or
    nonconsecutive days in any month and which is not a sex
    offender's permanent address, including any out-of-state
    address." G. L. c. 6, § 178C.
    8
    See G. L. c. 6, §§ 178C-178E, as appearing in St. 2003,
    c. 77, §§ 1-4.
    9
    See G. L. c. 6, § 178E (h), as appearing in St. 1999,
    c. 74, § 2. At the time Doe No. 972 was decided, registration
    was only required within five days of moving. G. L. c. 6,
    § 178E (e), inserted by St. 1996, c. 239, § 1.
    10
    See G. L. c. 6, § 178F, as amended by St. 2010, c. 256,
    § 41 ("[a] homeless sex offender shall verify registration data
    every [thirty] days with the board"); G. L. c. 6, § 178F1/2
    ("[a] homeless sex offender shall appear in person at [the
    offender's] local police department every [thirty] days"); G. L.
    c. 6, § 178F3/4, inserted by St. 2010, c. 256, § 42 ("[a]
    homeless sex offender shall wear a global positioning system
    [GPS] device, or any comparable device, administered by the
    commissioner of probation").
    11
    For example, a level one offender is required to take a
    polygraph examination at least every six months, cannot use the
    Internet without permission of his or her supervising parole
    officer, cannot own or use computer programs without permission
    16
    all of these requirements can be exceptionally burdensome for
    registered offenders.12
    In addition to more extensive registration requirements,
    failure to register now may result in more significant
    penalties.13    If a judge determines that incarceration is a more
    appropriate penalty for a noncompliant offender than a fine, the
    judge now must impose a mandatory minimum sentence of at least
    six months.14   A second failure to register results in a
    mandatory minimum sentence of five years in State prison.15    When
    Doe No. 972 was decided, these penalties were uniformly less
    of the parole officer, cannot use personal advertisements or the
    Internet to contact or meet people, cannot possess a camera
    without permission of the parole officer, and may be fitted with
    a GPS monitoring device and required to remain outside of
    "Exclusion Zones" designated by the Parole Board. See
    Massachusetts Parole Board, Sex Offender Conditions, Executive
    Office of Public Safety (Nov. 2006). The parole conditions for
    level two and three offenders are more burdensome. See id.
    12
    See Levenson & Cotter, The Effect of Megan's Law on Sex
    Offender Reintegration, 21 J. Contemp. Crim. Just. 49, 62 (2005)
    (Levenson & Cotter) ("Feeling alone, isolated, ashamed,
    embarrassed, hopeless, or fearful may threaten a sex offender’s
    reintegration and recovery and may even trigger some sex
    offenders to relapse").
    13
    An offender may be arrested without a warrant "[w]henever
    a police officer has probable cause to believe that [he or she]
    has failed to comply with the registration requirements." G. L.
    c. 6, § 178P, as appearing in St. 1999, c. 74, § 2.
    14
    G. L. c. 6, § 178H (a), as amended through St. 2010,
    c. 267, §§ 4-6.
    15
    Id.
    17
    severe.16
    Furthermore, offenders face difficulty finding work and
    housing.    Stigma accounts for some of this difficulty --
    employers and landlords often prefer to avoid the perceived
    risks of having a convicted sex offender on site.    See, e.g.,
    Commonwealth v. Canadyan, 
    458 Mass. 574
    , 577 n.8 (2010) (noting
    " extraordinary obstacles facing sex offenders attempting to
    secure employment"); Platt, Gangsters to Greyhounds:    The Past,
    Present, and Future of Offender Registration, 
    37 N.Y.U. Rev. L. & Soc. Change 727
    , 762 (2013) (describing how housing
    discrimination against sex offenders "forc[es] many to live in
    shelters or be rendered homeless").   Many restrictions also have
    been codified.   For example, sex offenders are subject to
    criminal penalties for engaging in ice cream truck vending,
    regardless of whether their offense involved harm to a child.
    See G. L. c. 265, § 48, inserted by St. 2010, c. 256, § 119.
    Moreover, households that include a person subject "to a
    lifetime registration requirement under a State sex offender
    registration program" are no longer eligible for certain Federal
    housing programs.    
    42 U.S.C. § 13663
     (2012).   Level three sex
    offenders also face criminal penalties for living in a nursing
    16
    Under the 1996 sex offender registry law, there was no
    mandatory minimum sentence for a first conviction of failure to
    register. G. L. c. 6, § 178H, inserted by St. 1996, c. 239,
    § 1. A second conviction resulted in a mandatory minimum
    sentence of ninety days in a house of correction. Id.
    18
    home.17   G. L. c. 6, § 178K (2) (e), inserted by St. 2006,
    c. 303, § 6.   Such restrictions likely intensify the stigma
    associated with being a registered offender.
    The sex offender registry law in its current form also
    calls for extensive dissemination of offenders' registry
    information.   Both level two and level three sex offenders'
    information is now posted on the Internet.     See St. 2013, c. 38,
    §§ 7, 9 (requiring Internet posting of level two offenders'
    information); St. 2003, c. 140, §§ 5, 11-14 (requiring Internet
    posting of level three offenders' information).     No limits are
    placed on the secondary dissemination of this information.     See
    Moe v. Sex Offender Registry Bd., 
    467 Mass. 598
    , 605 (2014)
    (Moe).    Furthermore, records of level two and level three
    classifications are no longer permitted to be sealed.    See
    St. 2010, c. 256, § 129.    The permanence of level two and level
    three classification attaches special importance to the accuracy
    of the classification in the first instance.
    The recent Internet dissemination requirements in
    particular have increased the extent of the private interests
    affected by classification.    Although in Coe v. Sex Offender
    17
    But see Doe v. Police Comm'r of Boston, 
    460 Mass. 342
    ,
    342-343 (2011). Until this year, a warren of city and town
    ordinances also prohibited offenders from living near parks,
    schools, playgrounds, and other areas commonly used by children.
    See Doe v. Lynn, 
    472 Mass. 521
    , 533-534 (2015) (determining that
    municipal restrictions on offender residency are preempted by
    sex offender registry law).
    19
    Registry Bd., 
    442 Mass. 250
    , 257 n.6 (2004), we determined that
    Internet publication did not amplify the consequences of
    classification as a level three sex offender, we have since
    acknowledged that that conclusion "may no longer be
    accurate . . . in light of all that we have learned about the
    operation of the Internet."    Moe, supra at 605 n.10.     Where
    previously the time and resource constraints of local police
    departments set functional limits on the dissemination of
    registry information, the Internet allows for around-the-clock,
    instantaneous, and worldwide access to that information -- a
    virtual sword of Damocles.    See id. at 605.   Internet
    dissemination "exposes [offenders], through aggressive public
    notification of their crimes, to profound humiliation and
    community-wide ostracism."    Doe No. 7083, 472 Mass. at 485,
    quoting Smith v. Doe, 
    538 U.S. 84
    , 115 (2003) (Ginsburg, J.,
    dissenting).   Consequences of such public dissemination may
    include housing and employment discrimination, harassment, and
    assault.18   See Moe, supra at 604.   Further, should a sex
    offender later be reclassified to level one such that Internet
    dissemination is no longer required, "information posted on the
    Internet is never truly forgotten."    Note, The Right to Be
    18
    These consequences persist despite the sex offender
    registry law's prohibition on the use of information published
    about sex offenders to discriminate against or harass them. See
    G. L. c. 6, §§ 178D, 178N.
    20
    Forgotten, 
    64 Hastings L.J. 257
    , 259-260 (2012) (describing
    secondary dissemination of information posted on Internet).
    Even level one offenders' registry information is being
    disclosed more broadly.   Although level one sex offenders'
    information is not disseminated publicly, it still may be
    released to the local police departments where they attend
    institutions of higher learning, see St. 2003, c. 77, §§ 19-20,
    as well as to a variety of State agencies and the Federal Bureau
    of Investigation.   See G. L. c. 6, § 178K (2) (a); 803 Code
    Mass. Regs. § 1.28(3) (2013).   In addition, a level one sex
    offender's classification level and the city or town in which
    the offender lives, works, or attends an institution of higher
    learning may be released to a victim who submitted a written
    victim impact statement as part of the offender's classification
    hearing.   See 803 Code Mass. Regs. § 1.28(3).
    Although the consequences of classification are now
    extensive, concerns have been raised as to the accuracy of the
    risk classifications that SORB must make.   Under the guidelines
    currently in place, SORB applies twenty-four separate risk
    factors in order to determine an offender's risk level.
    803 Code Mass. Regs. § 1.40(1)-(24).   However, "there is reason
    for some concern as to whether [SORB's] guidelines continue to
    reflect accurately the current state of scientific knowledge."
    Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
    21
    Registry Bd., 
    470 Mass. 102
    , 116 (2014) (Doe No. 68549) (noting
    that most recent studies cited in guidelines were published in
    2001).   In addition, the Legislature has recently required SORB
    to update its regulations to "reflect recent [S]upreme
    [J]udicial [C]ourt or [A]ppeals [C]ourt decisions that have
    resulted in remands or reversals of [SORB's] final
    classification decisions."     St. 2015, c. 10, § 63.
    6.    Standard of proof.   In light of the new implications of
    classification at a given risk level, we consider what standard
    of proof is currently necessary to provide Doe with due process.
    As we have noted in the past, deprivation of more extensive
    private interests requires greater procedural protections.     See
    Doe v. Attorney Gen., 426 Mass. at 140, citing Mathews, 
    424 U.S. at 334-335
    .
    Adopting a "standard of proof is more than an empty
    semantic exercise" (quotation omitted).     Addington v. Texas, 
    441 U.S. 418
    , 425 (1979) (Addington).    Recognizing that a fact
    finder will sometimes err despite his or her best efforts, "a
    standard of proof represents an attempt to instruct the fact
    finder concerning the degree of confidence our society thinks he
    [or she] should have in the correctness of [his or her] factual
    conclusions."   In re Winship, 
    397 U.S. 358
    , 370 (1970) (Harlan,
    J., concurring).   Although a preponderance standard is generally
    applied in civil cases, see, e.g., Frizado v. Frizado, 
    420 Mass. 22
    592, 597 (1995), the clear and convincing standard is applied
    when "particularly important individual interests or rights are
    at stake."    Craven v. State Ethics Comm'n, 
    390 Mass. 191
    , 200
    (1983), quoting Herman & MacLean v. Huddleston, 
    459 U.S. 375
    ,
    389 (1983).
    Proof by clear and convincing evidence is "not without
    teeth."   Matter of G.P., 
    473 Mass. 112
    , 120 (2015).   It is a
    greater burden than proof by a preponderance of the evidence,
    but less than the proof beyond a reasonable doubt required in
    criminal cases.   Commonwealth v. Russell, 
    470 Mass. 464
    , 471
    (2015).   The evidence must be sufficient to convey a "high
    degree of probability" that the contested proposition is true
    (quotation omitted).    Callahan v. Westinghouse Broadcasting Co.,
    
    372 Mass. 582
    , 588 n.3 (1977).    Otherwise put, requiring proof
    by clear and convincing evidence reflects a judicial
    determination that "[t]he individual should not be asked to
    share equally with society the risk of error."    Addington, 
    supra at 427
    .
    The United States Supreme Court and this court have applied
    the clear and convincing standard in a variety of civil
    contexts.19   Both New Jersey and New York, the only two States
    19
    See, e.g., Santosky v. Kramer, 
    455 U.S. 745
    , 758, 769
    (1982) (termination of parental rights); Addington v. Texas, 
    441 U.S. 418
    , 427, 433 (1979) (civil commitment); Woodby v.
    Immigration & Naturalization Serv., 
    385 U.S. 276
    , 285-286 (1966)
    23
    that provide for adversarial risk classification hearings that
    appear to have considered the standard of proof that such
    classifications require,20 require that the appropriateness of
    (deportation); Chaunt v. United States, 
    364 U.S. 350
    , 353 (1960)
    (denaturalization); MacDonald v. Caruso, 
    467 Mass. 382
    , 389
    (2014) (termination of abuse prevention order); Birchall,
    petitioner, 
    454 Mass. 837
    , 851-853 (2009) (civil contempt);
    Adoption of Helen, 
    429 Mass. 856
    , 859 (1999) (parental
    unfitness); Stone v. Essex County Newspapers, Inc., 
    367 Mass. 849
    , 870 (1975) (libel against public official or public
    figure).
    20
    The Federal sex offender registry law assigns risk
    classifications based on the underlying sex offense; it does not
    allow for individualized assessment of risk of reoffense or
    current dangerousness. 
    42 U.S.C. § 16911
     (2012). Thirty-five
    States and the District of Columbia either provide the same
    public notice about all convicted sex offenders registered
    within their jurisdictions, or classify an adult sex offender's
    risk of reoffense solely based on the sex offender's crime of
    conviction or original sentence. See 
    Ala. Code §§ 15
    -20a-19,
    15-20a-27 (2015); 
    Alaska Stat. §§ 12.63.010
    , 12.63.020,
    12.63.100 (2015); 
    Ariz. Rev. Stat. Ann. §§ 13-3821
    , 13-3825, 13-
    3827 (2015); 
    Colo. Rev. Stat. §§ 16-22-102
    , 16-22-103, 16-22-112
    (2015); 
    Conn. Gen. Stat. §§ 54-250
    , 54-254, 54-256, 54-258
    (Supp. VI 2015); 
    Del. Code Ann. tit. 11, §§ 4120-4121
     (2014);
    
    D.C. Code §§ 22-4001
    , 22-4002 (2012); 
    Fla. Stat. § 775.21
    (4)-(5)
    (Supp. V 2015); Haw. Rev. Stat. § 846E-10 (2015); 730 Ill. Comp.
    Stat. 150/2, 150/3, 150/3-5 (Supp. VIII 2014) (risk assessment
    for juveniles only); 
    Ind. Code §§ 11-8-8-4
    .5, 11-8-8-5, 11-8-8-8
    (2015) (risk assessment for juveniles only); Iowa Code
    § 692A.102 (2015); 
    Kan. Stat. Ann. §§ 22-4902
    , 22-4904 (2015);
    
    Ky. Rev. Stat. Ann. §§ 17.520
    , 17.554 (2015); La. Rev. Stat.
    Ann. §§ 15:541, 15:542.1.1, 15:544 (2015); Me. Rev. Stat. tit.
    34-A, §§ 11273, 11281-11285 (Supp. IV 2014); 
    Md. Code Ann., Crim. Proc. §§ 11-701
    , 11-704, 11-707 (Supp. VII 2015); 
    Mich. Comp. Laws § 28.722
     (Supp. III 2015); 
    Miss. Code Ann. §§ 45-33
    -
    23, 45-33-47 (2015); 
    Mo. Rev. Stat. §§ 589.400.1-589
    .400.2
    (2015); 
    Mont. Code Ann. §§ 46-23-502
    , 46-23-509 (2015); 
    Neb. Rev. Stat. §§ 29-4003
    , 29-4005, 29-4007 (2015); Nev. Rev. Stat.
    §§ 179D.113, 179D.115, 179D.117 (2015); 
    N.H. Rev. Stat. Ann. § 651
    -B:1 (Supp. VII 2014); 
    N.M. Stat. Ann. §§ 29
    -11A-3, 29-11A-
    5.1 (2015); 
    N.C. Gen. Stat. §§ 14-208.6
    , 14-208.6A (2013); Ohio
    24
    Rev. Code Ann. §§ 2950.01(E)-(G) (2014); 
    42 Pa. Cons. Stat. § 9799.14
     (2014); 
    S.C. Code Ann. §§ 23-3-430
    , 23-3-460 (2014);
    
    S.D. Codified Laws §§ 22
    -24B-2.1, 22-24B-19, 22-24B-19.1, 22-
    24B-19.2 (2015); 
    Tenn. Code Ann. §§ 40-39-202
    , 40-39-204, 40-39-
    212 (2015); 
    Utah Code Ann. §§ 77-41-102
    (17), 77-41-110 (2015);
    
    Va. Code Ann. §§ 9.1-902
    , 9.1-904, 9.1-911 (2015); 
    W. Va. Code §§ 15-12-2
    , 15-12-2a, 15-12-5 (2015); 
    Wis. Stat. § 301.45
     (Supp.
    IV 2014); 
    Wyo. Stat. Ann. §§ 7-19-301
     to 7-19-304 (2015).
    Nine States classify a sex offender's risk of reoffense on
    a more individualized basis after sentencing, but do not provide
    for adversarial risk classification hearings. See 
    Ark. Code Ann. §§ 12-12-913
    , 12-12-917, 12-12-922 (2015); 
    Cal. Penal Code §§ 290.04
    , 290.06, 290.46 (Supp. I 2015); 
    Ga. Code Ann. § 42-1
    -
    14 (2015); 
    Idaho Code Ann. §§ 18-8303
    , 18-8314, 18-8316 (2015);
    
    N.D. Cent. Code § 12.1-32-15
     (12) (2015); 
    Okla. Stat. tit. 57, §§ 582.1
    , 582.5 (2015); R.I. Gen. Laws § 11-37.1-12 (2015); Tex.
    Crim. Proc. Code Ann. arts. 62.001, 62.007, 62.403 (Supp. VIII
    2014); 
    Wash. Rev. Code §§ 4.24.550
    , 4.24.5501, 9A.44.128,
    72.09.345 (2015).
    The remaining three States other than New Jersey, New York,
    and Massachusetts provide for adversarial risk classification
    hearings, but we are not aware of court decisions in those
    States addressing whether due process requires a higher standard
    of proof than a preponderance. See 
    Minn. Stat. §§ 243.166
    ,
    244.052 (2015); 
    Or. Rev. Stat. §§ 181.800
    , 181.801, 181.821
    (2015); 
    Vt. Stat. Ann. tit. 13, §§ 5401
    , 5405a, 5411b (Supp. VI
    2015). In Minnesota, a convicted sex "offender has a right to
    be present and be heard" at an administrative risk
    classification proceeding, but the standard of proof required
    for risk classifications is not explicit in the statute. 
    Minn. Stat. § 244.052
    (3)(d). In Oregon, in order to be relieved of
    the obligation to register, a convicted sex offender must prove
    by clear and convincing evidence that he or she is statistically
    unlikely to reoffend and does not pose a threat to public
    safety. 
    Or. Rev. Stat. § 181.821
    (4)(a) (2015). The Oregon
    statute does not, however, lay out what standard of proof is
    required to reclassify a sex offender at a lower risk level
    while preserving his or her registration obligation. See 
    Or. Rev. Stat. § 181.821
    (4)(b). In Vermont, a convicted sex
    offender is guaranteed notice and an opportunity to be heard
    regarding whether he or she poses a "high risk" of reoffense.
    Vt. Stat. Ann. tit. 13, § 5411b. That determination is
    currently made by a preponderance of the evidence. Vt. Code R.
    § 12-8-4:4 (2015).
    25
    offenders' risk classifications be proved by clear and
    convincing evidence.   See E.B. v. Verniero, 
    119 F.3d 1077
    , 1110-
    1111 (3d Cir. 1997), cert. denied, 
    522 U.S. 1109
     (1998); Doe v.
    Pataki, 
    3 F. Supp. 2d 456
    , 471 (S.D.N.Y. 1998).   We consider now
    whether risk classifications in Massachusetts similarly should
    be held to the higher standard.
    7.   Procedural due process.   To determine whether the
    preponderance standard continues to satisfy due process, "we
    balance the private interests affected, the risk of erroneous
    deprivation, the probable value of additional or substitute
    safeguards, and the governmental interests involved."     Doe No.
    972, 428 Mass. at 100, citing Mathews, 
    424 U.S. at 335
    .
    Consideration of these factors in light of changed circumstances
    leads us to conclude that due process now requires application
    of the clear and convincing standard.
    a.   Private interests.   As described above, Doe's risk
    classification level now has dramatic consequences for his
    liberty and privacy interests that were not present when we
    decided Doe No. 972.   He faces increasingly stringent
    affirmative reporting requirements, as well as the possibility
    of extended incarceration for failing to meet those
    requirements.   He is also likely to confront stigma and legal
    restrictions that will make it harder for him to find stable
    housing or employment, and may even face threats of physical
    26
    harm.     The dissemination of his registry information on the
    Internet only exacerbates these difficulties.
    b.    Erroneous deprivation.   The extensive private interests
    now affected by classification counsel in favor of requiring a
    higher standard of proof.    Admittedly, neither the risk of
    erroneous deprivation under the current preponderance standard
    nor the probable value of imposing a higher standard is
    altogether clear.     Even if Massachusetts-specific sex offender
    recidivism research were available, it would be difficult to
    establish the actual risk of an erroneous deprivation of a
    registered sex offender's privacy or liberty.21    Nevertheless, we
    are concerned that the current procedural safeguards do not
    adequately protect against this risk.     Doe's opportunity to
    present evidence and to examine and cross-examine witnesses at
    his classification hearing, and the requirement that SORB make
    particularized, detailed findings concerning his classification
    21
    At oral argument, counsel for SORB stated that he had "no
    idea" what percentage of registered sex offenders in
    Massachusetts actually recidivate. We recognize that SORB has
    discretion as to how it fulfils its statutory mandate to
    "promulgate guidelines for determining the level of risk of
    reoffense and the degree of dangerousness posed to the public"
    by convicted sex offenders. G. L. c. 6, § 178K (1).
    Nonetheless, it is troubling that little emphasis has apparently
    been placed by SORB on assessing the accuracy of its
    classifications. This is especially true given the enormity of
    the consequences of such classification decisions. Contrast
    Massachusetts Parole Board, Massachusetts Parole Board Three-
    Year Recidivism Analysis: 2009 (Dec. 2013); Massachusetts
    Parole Bd., Trends in Revocation Among Massachusetts Parolees
    (Oct. 2013).
    27
    were and continue to be important features of the process that
    offenders are due.   See Doe No. 972, 428 Mass. at 102.      The harm
    to the State from an erroneous underclassification, however, is
    no longer "nearly equal" to the possible harm to Doe from
    erroneous overclassification.22    See id. at 104 n.14.
    Other developments since our decision in Doe No. 972 also
    support raising the standard of proof.    The 1996 statute
    envisioned that SORB's guidelines would augment a set of
    statutory factors that the Legislature considered relevant to
    convicted sex offenders' risk of reoffense.    See G. L. c. 6,
    § 178K (1), inserted by St. 1996, c. 239, § 1.    Yet these
    guidelines have not been updated in over fourteen years.      See
    Doe No. 68549, 470 Mass. at 116.    Ideally, the factors would
    22
    Some statistical evidence also appears to support the
    view that applying a higher standard of proof is appropriate.
    As of March 9, 2015, SORB classified over three quarters of all
    sex offenders in Massachusetts as having a moderate or high risk
    of reoffense. Yet studies have indicated that relatively few
    sex offenders reoffend. See, e.g., Hanson, Harris, Helmus, &
    Thornton, High-Risk Offenders May Not Be High Risk Forever, 29
    J. Interpersonal Violence 2792, 2796 (2014) (finding 11.9 per
    cent over-all rate of sexual recidivism, although high-risk
    offenders reoffend more frequently than low-risk offenders).
    Other reports have shown that, contrary to popular belief, the
    rates of recidivism for sex offenders are actually lower than
    the rates of recidivism for those convicted of other crimes.
    See, e.g., Council of State Governments, Sex Offender Management
    Policy in the States, Strengthening Policy & Practice: Final
    Report 2 (2010). Of course, SORB may accurately determine that
    specific offenders pose a moderate or high risk of reoffense
    without those people ever actually reoffending. Even so, the
    sharp contrast between SORB's classification practices and the
    studies' conclusions suggests that SORB may be overclassifying
    offenders.
    28
    always reflect current research.    Requiring that whatever
    factors are currently in place be proved with increased rigor,
    however, will ensure at least that they are applied more
    accurately on their own terms.23    Furthermore, little evidence
    appears to support our concern in Doe No. 972, 428 Mass. at 103,
    that a heightened standard might lead to erroneous
    underclassifications.24   Accordingly, Doe "should not be asked to
    share equally with society the risk of error."    Addington, 
    supra at 427
    .
    c.   Governmental interests.   The State has a strong
    interest in "protect[ing] children and other vulnerable people
    23
    In Doe No. 972, supra at 102, we acknowledged the
    possibility that SORB might "apply general factors to the
    offenders that may not correctly predict their propensity to
    reoffend," but concluded that other procedural protections than
    a heightened standard of proof were sufficient to protect
    against that possibility. The changes to the statutory
    landscape since our decision in Doe No. 972 persuade us that a
    heightened standard is additionally necessary.
    24
    Recent studies of sex offender recidivism in New York and
    New Jersey, the two States that already apply the clear and
    convincing standard to their risk classification proceedings,
    have noted that sex offenders' rates of committing an additional
    sex offense are low overall. See R. Tewksbury, W.G. Jennings, &
    K. Zgoba, Final Report on Sex Offenders: Recidivism and
    Collateral Consequences 6, 10 (2011); Sandler, Freeman, & Socia,
    Does a Watched Pot Boil? A Time-Series Analysis of New York
    State's Sex Offender Registration and Notification Law, 14
    Psychol. Pub. Pol'y & L. 284, 297 (2008). Although SORB argues
    that a cross-State comparison blurs important distinctions in
    the manner and means by which each State's registry board
    reaches its classification decisions, these studies provide at
    least mild support for the proposition that requiring a higher
    standard of proof does not lead to erroneous
    underclassifications of the risk posed by registered offenders.
    29
    from recidivistic sex offenders."     Doe No. 972, 428 Mass. at
    103.    As the Legislature recognized when it amended the sex
    offender registry law in 1999, classification "provide[s] law
    enforcement with additional information critical to preventing
    sexual victimization."25     St. 1999, c. 74, § 1.   Yet the State
    also has an interest in avoiding overclassification, which both
    distracts the public's attention from those offenders who pose a
    real risk of reoffense, and strains law enforcement resources.
    And the State has no interest "in making erroneous
    classifications and implementing overbroad registration and
    notifications."    Doe No. 972, 428 Mass. at 107 (Marshall, J.,
    dissenting).    Cf. E.B. v. Verniero, supra at 1107-1108; Doe v.
    Pataki, 
    supra at 470
    .     Given these interests, a clear and
    convincing standard would better "enable police and the
    community to focus on those offenders who may pose an actual
    threat to young children and others that the statute seeks to
    protect."    Doe No. 972, 428 Mass. at 104 (Marshall, J.,
    dissenting).
    d.   Balancing.   Balancing the Mathews factors, we conclude
    that sex offender risk classifications must be established by
    25
    Some studies, however, have questioned whether
    registration and notification requirements have had any effect
    on convicted sex offenders' rates of reoffense. See, e.g.,
    Agan, Sex Offender Registries: Fear Without Function?, 54
    J. L. & Econ. 207, 208 (2011); Levenson & Cotter, supra at 52.
    30
    clear and convincing evidence in order to satisfy due process.26
    Applying the higher standard to Doe's risk classification will
    provide greater certainty that the burdens placed on him by that
    classification are warranted.   Replacing the current
    preponderance standard will better help to advance the goal of
    ensuring that the Commonwealth's "classification and
    notification system is both fair and accurate."27   E.B. v.
    26
    Because our decision is a new constitutional rule, the
    higher standard should be applied retroactively only to
    classification proceedings pending before SORB, the Superior
    Court, or the appellate courts on the date of the issuance of
    the rescript in this case. See MacCormack v. Boston Edison Co.,
    
    423 Mass. 652
    , 657 (1996).
    27
    Although the consequences of Internet dissemination
    provide a convicted sex offender with a particularly strong
    interest in avoiding classification as a level two or level
    three offender, the clear and convincing standard should be
    applied to all sex offender risk classification levels,
    including level one. A level one offender's information may not
    be disseminated publicly, but it still may be released to a
    variety of State agencies and the Federal Bureau of
    Investigation, as well as to a victim who has submitted a
    written victim impact statement as part of the offender's
    classification hearing. See 803 Code Mass. Regs. 1.28(3)
    (2013). Level one offenders also are subject to extensive
    parole conditions. See Massachusetts Parole Board, Sex Offender
    Conditions (Nov. 2006). Furthermore, as noted above, many of
    the additional burdens placed on registered offenders apply to
    all levels of offenders. See G. L. c. 6, §§ 178C-178D
    (requiring registration of secondary addresses and of names and
    addresses of institution of higher learning attended by
    offender); G. L. c. 6, § 178E (h) (requiring re-registration ten
    days prior to establishing new address); G. L. c. 6, §§ 178F,
    178F1/2, 178F3/4 (requiring homeless offenders to re-register
    every thirty days and to wear GPS device at all times); G. L.
    c. 6, § 178H (a) (1)-(2) (imposing penalties for failure to
    register); G. L. c. 265, § 48 (prohibiting ice cream truck
    vending). See also Doe, Sex Offender Registry Bd. No. 8725 v.
    31
    Verniero, supra at 1107.
    A convicted sex offender's risk classification now has far
    greater consequences than were present when we decided Doe No.
    972 over seventeen years ago.   "Classification and registration
    entail possible harm to a sex offender's earning capacity,
    damage to his reputation, and, 'most important, . . . the
    statutory branding of him as a public danger.'"   Poe v. Sex
    Offender Registry Bd., 
    456 Mass. 801
    , 813 (2010), quoting Doe v.
    Attorney Gen., 426 Mass. at 144.   Internet dissemination of
    level two and level three sex offenders' registry information
    magnifies these consequences.   Although the State has a strong
    interest in protecting the public from recidivistic sex
    offenders, allowing SORB to make classification determinations
    with a lesser degree of confidence does not advance that
    interest.   In short, greater circumspection is needed before
    offenders' risk classifications are made final.
    8.   Internet dissemination.   Doe's argument that the 2013
    amendment to the sex offender registry law requiring the
    Internet publication of level two offenders' registry
    information, St. 2013, c. 38, §§ 7, 9, was not retroactive as
    Sex Offender Registry Bd., 
    450 Mass. 780
    , 793 (2008)
    (recognizing that rights affected by level one classification
    are "substantial"). Cf. E.B. v. Verniero, 
    119 F.3d 1077
    , 1110-
    1111 (3d Cir. 1997), cert. denied, 
    522 U.S. 1109
     (1998)
    (applying clear and convincing standard to classification at
    every risk level); Doe v. Pataki, 
    3 F. Supp. 2d 456
    , 471
    (S.D.N.Y. 1998) (same).
    32
    applied to him is without merit.    Although we determined in Moe
    that that amendment was not retroactive as applied to
    individuals finally classified as level two sex offenders on or
    before July 12, 2013, the effective date of the amendment, we
    stated explicitly that "[n]othing in this order affects the
    ability of SORB to publish on the Internet the registry
    information of any individual who was given a final
    classification as a level two sex offender after July 12, 2013."
    Moe, supra at 616.   Doe's final classification as a level two
    offender did not occur until October 23, 2013, so Internet
    dissemination of his information is permissible.
    Nevertheless, because Doe's classification as a level two
    offender is vacated, we remand to the Superior Court for entry
    of an order to SORB to cease disseminating Doe's registry
    information on the Internet; unless and until he is finally
    classified under the clear and convincing standard at a risk
    level that requires such dissemination, to do otherwise would
    violate Doe's due process rights.    Compare Doe No. 7083, 472
    Mass. at 489-490 (vacating final risk classification that
    violated procedural due process, and treating as preliminary
    SORB's attempted classification).
    9.   Conclusion.   The decision of the Superior Court judge
    affirming SORB's classification of Doe as a level two sex
    offender is vacated and set aside.    We remand the matter to the
    33
    Superior Court for entry of an order requiring SORB to conduct
    an evidentiary hearing consistent with this decision, and to
    cease disseminating Doe's registry information on the Internet
    during the pendency of such proceedings.
    So ordered.