5-27-2008 National:The Constitutional Rights!
Holiday is over and time to get back to business.
In Part-1 we talked about how it is impossible for RSOs to comply with the Kid's act as written. In Part-2 I revealed how, verbally, both Sponsors of the bill say the intent is to have RSOs expelled from Internet sites, but that is not how the bill is written. The likely reason is to gather public support under a pretext. Part-3 shows that, Dr. Finkelhor, highly recognized in the child abuse field also disagrees with S-431, saying it will not solve the problem and it fails to analyze the nature of the problem or the way in which kids get harmed.
The bill, as a resolution to the problem, is useless, but it does put further restrictions on RSOs and with further restrictions, creates more ways to prosecute them for doing nothing but exercising their constitutional rights.
Yes, RSOs have a constitutional right of freedom of speech and the right to assemble, using the Internet, for political discussions as to their rights. Oh yes, thats not what the politicians are saying RSOs are doing on the Internet, but has ONE politician shown any proof of their false claims? Not one, not a single one.
Remember what Dr. Finkelhor said, in essence, S-431 "doesn't analyze the nature of the problem -OR- the way in which kids get harmed." The nature of the problem is, who is attacking kids on the Internet, its not RSOs but it is new offenders. Lawmakers refuse to analyze how the crimes are occurring, if they did they would know RSOs are not the cause of the problem. So, S-431 will not solve the problem, it deals with the wrong group of people who are causing the problem.
The Key Constitutional Right: The 4th Amendment-
The most important place to any person is their home, and everything in it as well, the home is sacrosanct, it cannot be invaded by anyone lest they get charged with a crime, or, if the state wants to go into someone's home, they need a warrant and must show probable cause that the person committed some crime:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4th Amendment
The constitution recognizes, through the 4th amendment, that ones home is sacrosanct, it cannot be violated by the police (the government). The door prevents them from entering, unless the occupant waives that right and gives them permission to enter. There are exceptions such as, if the police hear someone being harmed inside, or they can see drugs through the window, or if there is some other emergency -a fire-, etc., only then can they enter without a warrant.
The 4th clearly says it protects everything INSIDE the home, where is the RSO's computer, right INSIDE the home; its protected by the 4th amendment. Everything about the computer is inside the home, and as long as there is not some proof of a criminal act involving the computer, the police cannot get to it without a warrant.
Where is the e-mail address, it is in the computer, and protected by the 4th amendment just like all of a person's papers and other effects clearly mentioned in the 4th. So, until the door is opened, the police or the state or government is stopped.
Just last week was a wonderful case in the Michigan court of appeals (cited for explanation not authority) and although it speaks to a drug case, the essence of the case says, the door stops the police, they cannot enter. Now, while the justices did permit the police to use a drug sniffing dog at the offender's door, the justices said, they could not enter but allowed the "SNIFF" of the dog, which smelled drugs on the doorstep, to be probable cause for a warrant. Yes, they still needed a warrant to enter, to search for drugs.
So, the essence of S-431, DEMANDS from the RSO something which is in his home, and if s/he doesn't give it willingly, they will be prosecuted for violating the registry law. Can the government force a person to waive his constitutional rights under the threat of imprisonment? Simply, NO! S-431, like many of the recent state laws which are forcing RSOs across the country, to give up something in their home, their e-mail addresses.
Why the government wants the e-mail address does not matter, even whether that is a logical reason doesn't matter, the threshold issue is, whether they violate the 4th amend. Remember, none of these RSOs have committed any crime using their computer from INSIDE their home, that would be a different matter. The home is sacrosanct!
Next, is how the state forces the RSO to provide the e-mail address. If they ask the RSO to submit a list of e-mail addresses on paper and the state creates its data base, that is one way. However, if the state forces the RSO to provide the e-mail address FROM his/her home computer, that is a search of the computer.
Referring back to Part-1 of this discussion I mentioned that lawmakers do not know how the Internet operates and have not geared their laws to reality of how the Internet operates. Likewise is forcing the RSO to provide their e-mail address from his/her home computer.
As soon as the RSO signs on wherever the state says to register the e-mail address, the state computers automatically gathers information from within the RSO's computer, that is a search, and the name of the Internet Service Provider as well. All without a warrant, and all in violation of the sanctity of the home, and the 4th amendment.
Lawmakers are gearing laws to circumvent and violate RSO rights!
In addition, what if the RSO is using a computer belonging to someone else, for instance, his/her parents if living at home, or spouse, or a friends computer, etc. there are many ways that could be cited which show rights of others are also violated.
Until RSOs speak up, and they can interpose, assert, constitutional rights to stop the government from violating those rights, the government will violate their rights because lawmakers simply do not care!
I strongly urge all RSOs and their families to seek legal counsel to stop this wholsale destruction of constitutional rights.
eAdvocate
1 comment:
This assault is coming from two fronts, the feds and that states. Missouri passed S.714, and it's awaiting Blunt's signature (several House members voted no). Included in S.714 is the email/online ID registration, which has to be done in person.
In addition to the violation of rights mentioned, Missouri Supreme Court has recognized a state clause in its Constitution that's not in the federal Constitution that prevents laws from being "retrospective in its operation".
The MO email registration would face the same holding regarding sex offender registration and residency restrictions, it imposes an obligation and duty that must be updated based solely on prior acts.
The federal proposal would clash with a century of established MO Supreme Court holdings, something the two MO Senators should have known.
I agree, RSOs and their families should attack these laws at every opportunity. Missouri offenders should contact the ACLU about a class action suit for a temporary restraining order before the effective date of the law. There are several provisions in S.714 that can be attacked and need to be attacked.
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