Reasons why S-431 should not become law as written.

6-30-2008
S-431 is in the House Judiciary committee and it is being fast tracked for unknown reasons. One likely guess is, that John McCain needs votes to win the upcoming election, and sex offender legislation is one sure way to get votes.

Whatever the reasons are for fast tracking it is important, in this writer's opinion, that folks know why I believe this piece of legislation is bad and should never become law. The unfortunate fact, which advocates need to know is, remember the "and for other purposes" we always see in proposed legislation, well, tacked on to the end of this bill, BY THE SENATE, are changes to the Adam Walsh Act pertaining to child pornography. The obvious intent of including that, yes to change AWA, but also, to assure that no lawmaker will vote against this bill.

With that said, what follows are my reasons why this bill should never become law, and my best hopes are that changes are made to eliminate or reform what I have noted below.

Note: Anyone who wishes to use any portion or all of what I believe below is permitted to do so without my consent, assuming that person's beliefs are the same as mine they do so at their own risk signing their name to it. These beliefs are subject to change -at any time- as I learn more on these topics. Hopefully folks, Congress will see how wrong this bill is.

I include my earlier reviews of this bill as well:

Part-1 .... Part-2 .... Part-3 .... Part-4 .... Part-5

eAdvocate


BILL INFORMATION:

S.431 Title: A bill to require convicted sex offenders to register online identifiers, and for other purposes. Sponsor: Sen Schumer, Charles E. [NY] (introduced 1/30/2007) Cosponsors (20)

Latest Major Action: 5/21/2008 Held at the desk.

Senate Reports: 110-332 -------All Bill Information ------- Text of S-431 Legislation

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Reasons why S-431 should not become law, or, should be amended again:
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1) All RSOs are being erroneously accused of being Internet sexual predators:

Congress, recognizing a problem of minors being preyed on, generally while on social networking sites and other Internet sites, jumps to the conclusion that, registered sex offenders (RSO)are the ones who are preying on minors. Congress has failed to review those cases where minors were preyed on using the Internet, if they had, they would have found out that, RSOs ARE NOT the cause of the problem. In essence, Congress is erroneously accusing ALL RSOs of being Internet Predators. See Senate Report 110-332 “Background and Purpose of the Kids Act of 2008”

Also, recently, 29 state attorneys general banned together to have MySpace remove some 36,000 registered sex offenders who had MySpace accounts from the MySpace social networking site. Upon review of those 36,000 RSO accounts and their activities while on MySpace it was found that, only ONE had contacted a minor and he was arrested for that. It was also learned that, some RSOs who were on parole or probation and had Internet restrictions, did have MySpace accounts. But, it was never reported whether those cases had set up those accounts before conviction or after conviction. In either case those are technical violations and not new crimes as none of them were proven to have even tried to contact any minors on MySpace.

Senate Report 110-332 cites statistics from studies performed by David Finklehor, director of the Crimes Against Children Research Center at the University of New Hampshire, in support of the need for S-431. But, David Finklehor has come out saying those stats are effectively being misapplied. See "KIDS Act: How Far is The Law's Online Reach?” where Sen. Schumer’s comments are being refuted by David Finklehor, saying

“said characterizations such as Senator Schumer's are "based on anxieties and not on a careful analysis of the nature of the problem or the way in which kids get harmed." Preventing convicted sex offenders from joining social networks through something like the KIDS Act might do some good but won't solve the problem. The notion that the main problem is social networking sites is "overdrawn." Finklehor wants Congress to treat this as a Public Health problem, “Instead of passing laws like the KIDS Act, Finklehor wants lawmakers to treat online and offline child molestation as a public health issue to be dealt with scientifically.”

Clearly Congress is targeting the wrong cause of the problem.


2) The 4th Amendment is violated by forcing RSOs to provide information which is inside their homes, their e-mail addresses etc., without a warrant or probable cause:

S-431 requires RSOs, under the threat of further prison and another felony conviction, to give the government something which is found ONLY in their homes which are protected by the 4th Amendment. The 4th amendment requires the government to get a warrant showing probable cause that a crime is being, or has been, committed before allowing government access to a person's home. The federal court in Indiana just declared an Indiana law, effective 7-1-2008, which wanted to do computer searches at any time even after a sentence was completed, unconstitutional. The reasoning was, the home is protected by the 4th amendment. Doe, Morris –v- Prosecutor, Marion County, Indiana (Case: 1:08-cv-0436-DFH-TAB)

While it is true that the court noted “Plaintiff’s do not challenge the requirements to report e-mail addresses, user names and the like” (p-5), the actual court analysis (pp-38-49) clearly showed that the 4th amendment prohibits the government from requiring things in the home without a warrant. E-mail addresses etc. are part of the computer which is found only inside the home. A few quotes from that decision:

"The Supreme Court has never substituted a balancing test for the warrant and probable cause requirements where the primary justification for the policy was to make it easier to detect criminal activity. See Ferguson v. City of Charleston, 532 U.S. 67, 79-86 (2001); Edmond, 531 U.S. at 41-42; T.L.O., 469 U.S. at 351 (Blackmun, J., concurring). The Fourth Amendment explicitly protects the “rights of the people to be secure in their persons, houses, papers, and effects” from unreasonable searches and seizures. ... But when the government’s chief purpose in dispensing with constitutional protections is simply to make it easier to detect and punish crime, even serious crime, the Fourth Amendment forecloses such efforts." (p-45).

"The heart of defendants’ special needs argument here is that sex crimes are “a serious threat in this Nation,” see Connecticut Department of Public Safety, 538 U.S. at 4 (approving sex offender registry against due process challenge), and thus warrant this unprecedented action. The court agrees with the premise but must disagree with the conclusion. As heinous as sex and violent crimes are, many other crimes are also threats to our Nation. The social contract reflected in our Constitution imposes limits on law enforcement to protect liberty and privacy. Americans invest a significant portion of public resources to promote social peace and safety. But our founders drew a clear line, based on observed and experienced abuses, on the government’s ability to invade fundamentally personal areas. To enter the homes of or to search the personal effects, papers, and bodies of persons in the general population, public officials must have cause to believe that they will find evidence of a crime. It is almost always possible to characterize the Fourth Amendment as an inconvenience to law enforcement officials as they carry out their vital duties. That inconvenience, however, is one of the fundamental protections that separates the United States of America from totalitarian regimes. The right to feel safe and secure in one’s own home, person, and belongings is central to our way of life.9" (pp-49-50).

The home, beginning at its front door, is sacrosanct, the government is not permitted access to anything inside which is where the e-mail addresses etc. are.


3) RSOs simply cannot comply with many portions of the law as written because the law fails to consider how the Internet works, and its failure to recognize the mechanics of the Internet will cause RSOs to be punished for violating the law when they cannot change how the Internet operates:

S-413 is a bill which is written without expert advise, and is written on the premise “I think this is how the Internet works,” a sounds-good bill. However, as written and if enacted, it would prohibit RSOs from ever establishing a future e-mail address or other Internet identifier, and would send them to jail if they did establish a new one.

Sec 2 requires registration of on-line identifiers, and states: “…`(4) Any electronic mail address or other designation the sex offender uses or will use for self-identification or routing in Internet communication or posting.'.”

First, it is impossible for RSOs to know the future, or what might be available when and if they were to setup a e-mail address or other Internet identifier. The way the Internet works is, when someone wants to setup a NEW e-mail address they choose some set of characters, then that set of characters is checked to see if it is available, if not, then they must chose something else. Until they find an available e-mail address they cannot know what it is, and once setting it up they have used it. Hence, the moment they try to register it as a NEW e-mail address, they will have violated the registry law which requires registration of such address BEFORE using it.

Immediately they are punished according to S-431 as written.


3) S-431 Definitions (Sec. 4 and 5) are vague, overbroad, and ambiguous designed to ensnare any reasonable man, especially if they have any prior sex offense whether or not related to the Internet:

First, “routing in Internet communication or posting” is a phrase, used multiple times, which no one can understand it has no known definition. Accordingly it is vague and ambiguous.

Earlier I mention the use of “will use” which is designed to ensnare RSOs, sort of an entrapment, convicting them for failure to follow a law, which itself fails to recognize the reality of the mechanics of the Internet.

“Social Networking Website” definition is overbroad, in that, it could mean virtually anything on the Internet such as blogs when many folks use to express first amendment rights and freedom of expression. Further it could mean sites such as news, periodicals and so forth, there is no logical reason to even deny RSOs access to such sites by suggesting to those sites to exclude RSOs which is the inherent intent of this bill.

Sec. 5 is most interesting, its title says one thing, but its detail is overbroad, saying

“`(c) Misrepresentation of Age- Whoever knowingly misrepresents his or her age
using the Internet or any other facility or means of interstate or foreign
commerce or the mail, with the intent to further or facilitate a violation of this section, shall be fined under this title and imprisoned not more than 20 years. A sentence imposed under this subsection shall be in addition and consecutive to any sentence imposed for the offense the age misrepresentation was intended to further or facilitate.'.”

The way that section is written, it pertains to everyone in the world, to ensnare ANYONE who doesn’t provide a correct age –in any context whatsoever-, is guilty of a crime punishable by 20 years in prison. Titles are not used to construe the detail of laws as written, accordingly this is OVERBROAD.

Note: As written above, this would apply to juveniles and especialy those young girls who lie about their age and result in young adults ending up in prison and then on the registry, possibly for life.

Above is the reality of the law as written, however, that is not what the Senate Report 110-332 (Purpose) states, the intent of this section is:

“Furthermore, the KIDS Act will make it a crime for any person 18 years or older to knowingly misrepresent his or her age with the intent to use the Internet to engage in, or facilitate, criminal sexual conduct involving a minor four years younger than the person so engaged.”

The wording of the bill differs from the stated intent.


4) The actual intent of S-431 is masked behind the claimed intent, “to keep sexual predators off social networks.”

First, S-431 equates “Unknown Internet Sexual Predators” with “Known Registered Sex Offenders (RSOs)” as though they were one in the same. Using that equation the intent of S-431 becomes a perversion. The implied intent then is, to keep RSOs off social networking websites.

Then by using an overbroad definition of –social networking website- the implied intent broadens even further, so far that it is impossible for any reasonable man to tell what type of site or service RSOs are permitted to use or access. The effect is, that RSOs are virtually denied access to thousands of sites on the Internet, and in fact, since S-431 also speaks to Internet Service Providers (ISPs) even they are likely to deny RSOs access to the Internet in its entirety.
This bill is crafted to circumvent and mask the real intent. One only needs to read the Senate Report 110-332 (Purpose), in part, “Senators Schumer and McCain introduced the Keeping the Internet Devoid of Sexual Predators (KIDS) Act, S. 431, to fill a gap left by earlier sex offender registration laws and to curtail the anonymity that sexual predators currently enjoy while using Internet sites frequented by children. The KIDS Act will require a convicted sex offender to register, in addition to the information required by the AWA, his or her e-mail addresses, instant message addresses, or other similar Internet identifiers with the National Sex Offender Registry.”

Notice the crafty use of “Sexual Predators” and “Convicted Sex Offenders RSOs,” morphing RSOs into sexual predators under the intent of the bill “Keeping the Internet Devoid of Sexual Predators.” This is devious and since it has been proven that RSOs are not causing the problem, the bill is only for show and to impose further restrictions on RSO.

The second part of the intent is also found in the Senate Report 110-332 (Purpose), where it states “The Department of Justice is empowered to make this information available to social networking sites, chat rooms or other qualified websites. Qualifying sites may--but are not required to--screen their users against the convicted sex offenders included in the registry.”

There is no reason for websites to screen their users for those found in the data base, except to exclude them from access to that website. Suggestive and crafty words. Without telling the website what to do. The reader can come to no other conclusion based on all the suggestions no matter how crafty they are, the website is to exclude these persons (RSOs).


Conclusion:

This bill will have a chilling effect on the "Political and Free Speech Rights" guaranteed by the U.S. Constitution. Contrary to what lawmakers believe there are thousand of former offenders, of all types of crimes, that use the Internet properly and well within the laws. This bill effectively divides former offenders into two groups, sex offenders and all others, and only sex offenders will be erroneously denied according to this bill. That folks is a equal protection under the laws question.

eAdvocate