UPDATED: New..6-30-2010 Washington DC:
PROBLEM: Facebook and other social networking websites have become this era's way of communicating and obtaining all sorts of information as well as political information. Government agencies and lawmakers have established accounts on social networking websites asking for the general public to follow them, hence obtain much needed information from these political sources. Even the Department of Justice (who has issued the Supplemental Guidelines) has an account on Facebook (lower right hand column -Stay Connected-), and Nancy Pelosi, Speaker of the House also has social network accounts.
Congress enacts the Adam Walsh Act and the Kid's Act, together which mandate that, registered sex offenders hand over Internet Identifiers or suffer further punishment. These laws then establish a "checking system" (a system containing all RSOs Internet Identifiers) by which social networking websites may use to find out if any of their customers are RSOs, which they then close their accounts. Clearly this "checking system" operates under the color of law. Social networking websites, open to the general public, may not discriminate and are subject to lawsuits (1983 and/or 1985(3) actions) if they do, and esp. when acting under the color of law.
The Kid's Act establishes that, if a social networking website (SNS) removes a RSO based on the "checking system," the SNS must first advise the RSO that they have a right to challenge denial of access to the SNS. Other than those words in the Kid's Act there is no Grievance system by which RSOs may grieve such denials. And, there is nothing in the Kid's Act to advise RSOs that they have these rights. Without this grievance system the US Attorney General has no way to know if the SNS is complying with requirements of the "checking system" and cannot punish the SNS according to a Kid's Act provision (Suspend use of the checking system for failure to comply with other Kid's Act requirements. 42 USC 16915b(b)(5) and (c)(2)(C).
The Kid's Act then stipulates that, no lawsuit may be brought against SNS (or their directors or employees) unless they have violated another section of the Kid's Act (42 USC 16915b(c)(B) "Intentional, Reckless or other Misconduct" specifics omitted). This -no lawsuit- provision prevents RSOs (and their family members who also use the same computer) from access to the courts to assert their recognized rights. Congress, by the Kid's Act blocking court access, has violated the Separations of Powers doctrine by enacting this -no access to courts- provision.
Details follow:
In the Federal Register (5-14-2010) is the FULL text of the NEW Proposed Supplemental Guidelines. I will be addressing POINT based on the following from the Kid's Act.The Kid's Act: 42 USC 16915b Sec. 3. Checking System for Social Networking Websites: (pgs 3 and 5)
.......
(b) QUALIFICATION FOR USE OF SYSTEM.—A social networking website seeking to use the system shall submit an application to the Attorney General which provides— .....(5) a description of policies and procedures to ensure that—(A) any individual who is denied access to that website on the basis of information obtained through the system is promptly notified of the basis for the denial and has the ability to challenge the denial of access; and ....
(c) SEARCHES AGAINST THE SYSTEM.— .....(2) AUTHORITY OF ATTORNEY GENERAL TO SUSPEND USE.— The Attorney General may deny, suspend, or terminate use of the system by a social networking website that— .......(C) fails to comply with the procedures required under subsection (b)(5); or ....
(5) LIMITATION ON LIABILITY.—(A) IN GENERAL.—A civil claim against a social networking website, including any director, officer, employee, parent, contractor, or agent of that social networking website, arising from the use by such website of the National Sex Offender Registry, may not be brought in any Federal or State court.
(B) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT.—
Subparagraph (A) does not apply to a claim if the social networking website, or a director, officer, employee, parent, contractor, or agent of that social networking website—(i) engaged in intentional misconduct; or
(ii) acted, or failed to act—(I) with actual malice;
(II) with reckless disregard to a substantial risk of causing injury without legal justification; or
(III) for a purpose unrelated to the performance of any responsibility or function described in paragraph (3).
All RSOs -in spite of convictions- are entitled to First Amendment right of "Free Speech" and anonymous speech ( McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995)) as well as anonymous online speech ( Doe v. Shurtleff, 2008 WL 4427594 (U.S. Dist Court, the District of Utah 2008) and ACLU of Ga v. Miller, 977 F. Supp. 1228 (N.D. Ga 1997)). (Cited from an earlier commentary)
In the earlier commentary the issues were, the absence of a grievance system and no Guidelines controls to prevent use of Internet Identifiers to monitor Internet usage, but here the issue is: Access to courts to attack the actual "checking system" as itself, as unconstitutional. The Kid's Act actually has a clause preventing access to courts for all but certain claims, and forecloses this one, that the "checking system" -under the color of law- is discriminatory and unconstitutional.
It is likely that this claim should have been brought up by RSOs when the Kid's Act was enacted, but remember, it was FAST TRACKED which prevented any commentary at that time. It is very possible that the SMART Office is unable to do anything about this claim, but since they are required to address whatever is raised in opposition to the Supp. Guidelines, the claim below sets the groundwork for a future lawsuit should a lawyer wish to take on the task.
So, while this commentary is more of a notice to the RSO family and Advocates, it can set the SMART Office in motion to address the claim, if no more than, they say it cannot be addressed. That alone is groundwork for courts -who have been foreclosed from hearing issues- and may use to open the door and say, courts have jurisdiction and that the Kid's Act is -as claimed- unconstitutional. Only a lawyer would know if this is true. However, RSOs must use every opportunity to voice their opinions, this is one.Note: To get everything into a comment that needs to be there, the following suggested comment has been carefully worded so that it DOES NOT violate the Regulations.gov 2,000 character limit. The comment is 1,984 characters including spaces, so if you modify it, be careful lest you violate the 2,000 limit.Accordingly, an appropriate comment might go like this:OAG Docket No. 134
To Whom It May Concern:
Acknowledgement forms are used to prove the agency has complied with due process (notice of registrant obligations). see Supplemental Guidelines (SG) "The acknowledgment forms signed by sex offenders regarding their registration obligations are ....definitive proof of such knowledge." FR 75 at 27365.
The Kid's Act (KA) identifies a registrant's right to challenge when denied access to a social networking site (SNS)(42 USC 16915b(b)(5)). But, forms fail to notify registrants of that (forms must function for obligations and rights), and the SG fail to establish any grievance system for improper denials. The KA fails to acknowledge need for a grievance system, and further denies registrants access to courts state and federal (42 USC 16915b(c)(5)(A)) for any claims related to the SNS use of the National Sex Offender Registry (includes the checking system) not identified in the KA (42 USC 16915b(c)(5)(B))(Intentional, Reckless, or other misconduct).
Registrants -in spite of any convictions- have 1st Amend. right of "Free Speech" and anonymous speech (McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995)) as well as anonymous online speech (Doe v. Shurtleff, 2008 WL 4427594 (U.S. Dist Court, the District of Utah 2008) and ACLU of Ga v. Miller, 977 F. Supp. 1228 (N.D. Ga 1997)). And, registrants DO NOT lose their "rights of action" (42 USC 1983 and/or 1985 etc. or state equivalents) by virtue of being a registrant, nor can Congress or the states divest registrants of those "rights of action" for simply being a registrant in a sex offender registry. Such clearly violates ex post facto prohibitions.
Registrants need, and SG must provide a system to exhaust all administrative remedies -state and federal- before presenting claims to courts, including claims beyond the limitations set by KA (42 USC 16915b(c)(5)(B)). "Right of court actions" cannot be denied for simply being a sex offender registrant!
Thank you.WHERE TO POST COMMENTS:
OK, are your comments ready? Or, above are "suggested comments" (background color is yellow), you can use if you wish, but each must be a separate comment on Regulations.govSo click here:Remember, you can submit a comment as "Anonymous," no personal information is required.
Read carefully so that your comment will appear as "Anonymous."
http://www.regulations.gov/search/Regs/home.html#docketDetail?R=OJP-2010-0001
Look on the lower left where it says "Comment Due 7-13-10 11:59 PM" just click on that and enter what you have prepared, or the above suggested comments, remember to copy each as a separate comment.END OF POST
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