MI- Michigan Introduces Sex Offender Bills Covering "Social Networking," "Child Pornography" and Expands Covered Offenses

8-26-2009 Michigan:

As promised by Michigan's Attorney General, Michael Cox (during his recent Internet sting), who is running for Governor, he has convinced other lawmakers to introduce bills to make life rougher for CERTAIN registered sex offenders, and an ODD bill covering child pornography. In addition a bill to EXPAND covered offenses, which effectively EXPANDS the registry.

Normally introduced bills follow some recent event, but the one on child pornography follows no known event in Michigan so it must be someones pet peeve. I am all for prohibiting child pornography, but this is a very odd bill and needs some deep thought.


Two bills on Social Networking:

HB-5282 - Effectively prohibits CERTAIN sex offenders from accessing specifically designated social networking websites.

SB-770 - As introduced is a duplicate of HB-5282. However, don't bet it will stay that way after minds get cooking.

HERE ARE THE RELEVANT PORTIONS:
SEC. 37. (1) AN INDIVIDUAL 1 WHO WAS CONVICTED OF A LISTED OFFENSE IN WHICH THE VICTIM OR INTENDED VICTIM WAS A MINOR, OR WAS BELIEVED BY THE INDIVIDUAL TO BE A MINOR, AND THE OFFENSE INVOLVED THE USE OF A COMPUTER SHALL NOT ACCESS A COMMERCIAL SOCIAL NETWORKING WEBSITE WHEN THE INDIVIDUAL KNOWS OR HAS REASON TO KNOW THAT THE COMMERCIAL SOCIAL NETWORKING WEBSITE PERMITS MINOR CHILDREN TO BECOME MEMBERS OR CREATE OR MAINTAIN A PERSONAL WEBPAGE ON A COMMERCIAL SOCIAL NETWORKING WEBSITE.

(2) AN INDIVIDUAL WHO VIOLATES SUBSECTION (1) IS GUILTY OF A FELONY PUNISHABLE BY IMPRISONMENT 1 FOR NOT MORE THAN 5 YEARS OR A FINE OF NOT MORE THAN $5,000.00, OR BOTH.

(3) A VIOLATION OR ATTEMPTED VIOLATION OF THIS SECTION MAY BE PROSECUTED IN ANY JURISDICTION IN WHICH THE COMMUNICATION THAT IS THE BASIS OF THE VIOLATION ORIGINATED OR TERMINATED.

(4) AS USED IN THIS SECTION:

(A) "COMMERCIAL SOCIAL NETWORKING WEBSITE" MEANS A WEBSITE THAT IS ALL OF THE FOLLOWING:

(i) OPERATED BY A PERSON WHO DERIVES REVENUE FROM MEMBERSHIP FEES, ADVERTISING, OR OTHER SOURCES RELATED TO THE OPERATION OF THE WEBSITE.

(ii) FACILITATES THE SOCIAL INTRODUCTION BETWEEN 2 OR MORE INDIVIDUALS FOR THE PURPOSE OF FRIENDSHIP, MEETING OTHER INDIVIDUALS, OR INFORMATION EXCHANGE.

(iii) ALLOWS USERS TO CREATE POSTS, WEBPAGES, OR PERSONAL PROFILES THAT CONTAIN OR FACILITATE THE EXCHANGE OF INFORMATION, INCLUDING, BUT NOT LIMITED TO, THE USER'S NAME OR NICKNAME, PHOTOGRAPHS PLACED ON THE USER'S PERSONAL WEBPAGE, PERSONAL INFORMATION ABOUT THE USER, AND LINKS TO OTHER PERSONAL WEBPAGES ON THE INTERNET WEBSITE OF THE USER'S FRIENDS OR ASSOCIATES THAT MAY BE ACCESSED BY THE OTHER USER OR A VISITOR TO THE WEBSITE.

(iv) PROVIDES A USER OR A VISITOR TO THE INTERNET WEBSITE WITH A MECHANISM TO COMMUNICATE WITH OTHER USERS, INCLUDING, BUT NOT LIMITED TO, A MESSAGE BOARD, CHAT ROOM, ELECTRONIC MAIL, OR INSTANT MESSAGE SERVICES.

(v) PERMITS REGISTERED USERS TO CREATE AN ONLINE JOURNAL AND TO SHARE THAT JOURNAL WITH OTHER USERS, BUT NOT NECESSARILY WITH ALL USERS.

(B) "INTERNET" MEANS THAT TERM AS DEFINED IN SECTION 230 OF THE COMMUNICATIONS ACT OF 1934, 47 USC 230.

(C) "JOURNAL" MEANS A RECORD OF EVENTS, THOUGHTS, EXPRESSIONS, OR STATEMENTS PROVIDED, DIRECTLY OR INDIRECTLY, BY A REGISTERED USER.

(D) "PROFILE" MEANS DATA OR OTHER INFORMATION ENTERED BY A REGISTERED USER THAT IS STORED AND MADE AVAILABLE BY THE COMMERCIAL SOCIAL NETWORKING WEBSITE IN A RESTRICTED OR UNRESTRICTED MANNER.

There isn't a reason in the world to enact these bills. In ALL of Cox's Internet stings (2008 and 2009), he has not found a single registered sex offender committing a Internet crime involving a minor. It appears that no one is willing, or smart enough (maybe purposefully), to review the evidence to see who is committing these crimes.

The net effect is, anyone with a listed offense, whose offense involved a minor and the Internet, will be barred from these websites. Even describing "commercial social networking website" as it does, is overkill and in some cases can bar a person from political, religious and other protected activities on the Internet.

If we were to take a close look at the sponsors of the bill, I would bet some have a presence on the prohibited websites (Facebook or Myspace for example) which registrants would be barred from. This bill is not smart, it is vindictive in intent and not based on evidence (Cox's own stings is proof this bill will not accomplish what lawmakers think it will).

In today's world where virtually everything is now on the Internet, political voice, banking, insurances, medical, governmental and everything else in-between, restrictions on its use -here specified by website types- have been held improper by courts for folks on parole or probation. This law extends to folks off parole or probation and very likely will end up in court declared unconstitutional.

While the intent is to protect minors, on social networking websites minors are the smallest portion of its users. These sites are used for virtually every type of business including services provided by states. The definitions are far too broad and will restrict content that is everyday use and nothing to do with minors.

Minors do not own the Internet and it was not invented strictly for them, restrictions need to be narrowed, not by website types. Anyone who understands the meaning of "social" knows it covers a broad spectrum. This restriction, as to folks not on parole or probation, is too broad. Also, with lifetime probation being new, such amounts to excessive punishment, grounds for appeal.

With that said I'll mention, how in the name of heavens can this be enforced? And, leave it there, for now.


One bill on Child Pornography:

SB-769 This is the odd bill.

HERE ARE THE RELEVANT PORTIONS:
(B) FOR VIOLATIONS OF SECTION 145C OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 750.145C, COUNT EACH DEPICTION OF A CHILD SUBJECTED TO CHILD SEXUALLY ABUSIVE ACTIVITY AS A VICTIM WHO WAS PLACED IN DANGER OF PHYSICAL INJURY OR DEATH.

In order to understand the above you need to know what 145C covers:
750.145c Definitions; child sexually abusive activity or material; penalties; possession of child sexually abusive material; expert testimony; defenses; acts of commercial film or photographic print processor; report to law enforcement agency by computer technician; applicability and uniformity of section; enactment or enforcement of ordinances, rules, or regulations prohibited.

As best I can interpret the new portion of SB769, it says, ONE COUNT (crime) for every covered picture. Two pictures means two crimes even if it is a duplicate of another picture? This bill needs work because as I read the bill's intent, it can be misinterpreted resulting in unintended consequences, the wording isn't right to accomplish what I think lawmakers wanted.


On bill to EXPAND Covered Offenses:

SB-771 This is a bill to require folks convicted of 145D(1)(A)to register and appear on the registry, who beforehand were not required to do that; according to Cox. However, from reader e-mails the state HAS BEEN requiring those folks to register, best guess is, illegally, so the state wants to now legitimize its former illegal actions:

HERE ARE THE RELEVANT PORTIONS:
(e) "Listed offense" means any of the following:

(i) A violation of section 145a, 145b, or 145c, OR 145D(1)(A) of the Michigan penal code, 1931 PA 328, MCL 750.145a, 750.145b, and 750.145c, AND 750.145D.

Its time for EVERYONE in Michigan to start bugging their lawmakers to STOP -at least- the social networking bills, and make changes to the other ones.
eAdvocate