Action Alert: Supp. Guidelines - Section I (B Internet Identifiers) Part-1

6-5-2010 Washington DC:

LAST UPDATE: 6-21-2010

There is much folks need to know BEFORE commenting on e-mail addresses and Internet Identifiers. This Supp. Guideline (SG) flows from a 2008 federal law called "the Kid's Act" also known as "Keeping the Internet Devoid of Sexual Predators." Concerns with the SG on "Internet Ids" are of TWO types: 1) What the SG actually covers; -AND- 2) What the SG does not cover, that ought to be addressed. This post will address #1 only. With that said:

History: This is a very touchy subject for all RSOs: Remember when John McCain was posturing for the Presidency? Well, he wasn't doing well, so like all politicians, he pulls out the sex offender issue to hopefully spring board him into office. Well it didn't work, but what he did then, is now about to hurt all RSOs, nationally, and into the future.

Congressional Background: Sen. McCain (AZ) joined forces with Sen. Schumer (NY) and proposed this bill in Congress "Keeping the Internet Devoid of Sexual Predators Act of 2008" also known as "The Kids Act" or S-431 and in 2008 enacted into law by 110th Congress: The Kid's Act. It was FAST TRACKED and passed under the 'Suspension of the Rules" nonsense, which I believe is the most unconstitutional procedure in Congressional rules, simply because it can be misused.

Our Earlier Blogging on The Kid's Act: As a refresher folks may want to read "Congress passes Schumer and McCain's S-431 Amended bill, obviously a political campaign move," just so folks know who the good guys in Congress are..

Back then I blogged copiously on that S-431 Kid's Act, and tried to get folks to submit comments to their respective Senators and Representatives in Congress, and even if folks made those contacts it was for naught, FAST TRACK and "Under Suspension of the Rules" overrode all efforts. Well, thats water over the dam, what can folks do today because that law (The Kids Act) has never been put into guidelines for comment until today in these NEW Supplemental Guidelines. Now is the time for comments!

Unfortunately this post is going to get into technical points, so I think it best to include the SG portion covering "Internet Identifiers" below, and I'll highlight concerns that will be addressed:

B. Internet Identifiers (pg-3 SG)

The KIDS Act, which was enacted in 2008, directed the Attorney General to utilize pre-existing legal authorities under SORNA to adopt certain measures relating to sex offenders’ ‘‘Internet identifiers,’’ defined to mean e-mail addresses and other designations used for self-identification or routing in Internet communication or posting. The KIDS Act requires the Attorney General to (i) include appropriate Internet identifier information in the registration information sex offenders are required to provide, (ii) specify the time and manner for keeping that information current, (iii) exempt such information from public Web site posting, and (iv) ensure that procedures are in place to notify sex offenders of resulting obligations. See 42 U.S.C. 16915a.

The SORNA Guidelines incorporate requirements (i)–(ii) and (iv), as described above. See 73 FR at 38055 (Internet identifiers to be included in registration information), 38066 (reporting of changes in Internet identifiers), 38063–65 (notifying sex offenders of SORNA requirements). However, while the Guidelines discouraged the inclusion of sex offenders’ Internet identifiers on the public Web sites, they did not adopt a mandatory exclusion of this information from public Web site posting, which the KIDS Act now requires. See 42 U.S.C. 16915a(c); 73 FR at 38059–60.

The authority under 42 U.S.C. 16918(b)(4) to create additional mandatory exemptions from public Web site disclosure is accordingly exercised to exempt sex offenders’ Internet identifiers from public Web site posting. This means that jurisdictions cannot, consistent with SORNA, include sex offenders’ Internet identifiers (such as email addresses) in the sex offenders’ public Web site postings or otherwise list or post sex offenders’ Internet identifiers on the public sex offender Web sites.

This change does not limit jurisdictions’ retention and use of sex offenders’ Internet identifier information for purposes other than public disclosure, including submission of the information to the national (nonpublic) databases of sex offender information, sharing of the information with law enforcement and supervision agencies, and sharing of the information with registration authorities in other jurisdictions. See 73 FR at 38060. The change also does not limit the discretion of jurisdictions to include on their public Web sites functions by which members of the public can ascertain whether a specified e-mail address or other Internet identifier is reported as that of a registered sex offender, see id. at 38059–60, or to disclose Internet identifier information to any one by means other than public Web site posting.

The exemption of sex offenders’ Internet identifiers from public Web site disclosure does not override or limit the requirement that sex offenders’ names, including any aliases, be included in their public Web site postings. See 73 FR at 38059. A sex offender’s use of his name or an alias to identify himself or for other purposes in Internet communications or postings does not exempt the name or alias from public Web site disclosure.

It is quite clear that prohibiting public disclosure of registrants' e-mail addresses and other Internet identifiers is to prevent harassment or crimes committed against the registrant or his/her family. This is a valid public safety concern. This coupled with SORNA's mandate to post a Public Warning against such incidents provides bare minimum protections for registrants.

42 USC 16918. SEC. 118. PUBLIC ACCESS TO SEX OFFENDER INFORMATION THROUGH THE INTERNET.
(a) IN GENERAL.—Except as provided in this section, each jurisdiction shall make available on the Internet, in a manner that is readily accessible to all jurisdictions .....

(f) WARNING.—The site shall include a warning that information on the site should not be used to unlawfully injure, harass, or commit a crime against any individual named in the registry or residing or working at any reported address. The warning shall note that any such action could result in civil or criminal penalties.

With that said, on to SG concerns:

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POINT-1: What is the definition of "Jurisdiction" for the purpose of this SG? Notice this:

"This change does not limit jurisdictions’ retention and use of sex offenders’ Internet identifier information for purposes other than public disclosure, including submission of the information to the national (nonpublic) databases of sex offender information, sharing of the information with law enforcement and supervision agencies, and sharing of the information with registration authorities in other jurisdictions."

It seems clear that "jurisdiction" means the "State" and does not include its political sub-divisions. (ex: County or local law enforcement, or other pseudo-jurisdictions or places mentioned [see red above]). Assuming such to be true, there may be a major loophole, often such places will contract with third party vendors to handle a local public sex offender website for them. i.e., Offender Watch (or similar services from other vendors should they exist)... (These websites often contain errors without any method of correction).

Once the above are provided registrants' Internet information, there is nothing in the current SG to prohibit such third party places from publicly posting registrants' e-mail addresses or other Internet identifiers. Further, registrants would have no way of knowing how they will use the information. Accordingly, these places need to be regulated or denied registrants' Internet information.

UPDATED: 6-21-2010:The SMART office tells us that "jurisdiction" DOES NOT include the lower political subdivisions of the state. see: Final Guidelines page-5-6:

A- Terminology ---
These Guidelines use key terms with the meanings defined in SORNA. In particular, the term “jurisdiction” is consistently used with the meaning set forth in SORNA § 111(10). As defined in that provision, it refers to the 50 States, the District of Columbia, the five principal U.S. territories—i.e., the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands—and Indian tribes that elect to function as registration jurisdictions under SORNA § 127. (For more concerning covered jurisdictions, see Part III of these Guidelines.) Thus, when these Guidelines refer to “jurisdictions ” implementing the SORNA registration and notification requirements, the reference is to implementation of these requirements by the jurisdictions specified in SORNA § 111(10). “Jurisdictions” is not used to refer to other territorial or political units or subdivisions, such as counties, cities, or towns of states or territories. .....

Accordingly, before someone opens that loophole, an appropriate comment might go like this:

OAG Docket No. 134.

To Whom It May Concern:
THIRD PARTY VENDORS and OTHER JURISDICTIONS: Prohibition of publishing registrants e-mail address and other Internet identifiers publicly, MUST be EXTENDED, to third pseudo-jurisdictions who often have or run (as a contracted service)local public sex offender websites. (ex: Offender Watch) This supplemental guideline wording appears to exclude "many" who may not protect registrants' information if they are provided registrants' information, and registrants may suffer civilly or criminally. These need to be regulated or denied registrants' information.

Thank you.

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POINT-2: This Supplemental Guideline also permits "jurisdictions' (Federal and State) to release e-mail addresses and Internet Identifiers to anyone they choose to, as long as the release is not via a public website (State Registry). Notice this:

... "or to disclose Internet identifier information to any one by means other than public Web site posting.

Talk about devious, this circumvents privacy rights! This SG is drawing a distinction between Internet information being "mass posted publicly" or "handing same out privately." Either way, the U.S. Supreme court in McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995) has held that all citizens have a right to anonymous free speech, including on the Internet.

While registrants may choose to allow close friends to have their Internet Identifiers (or certain identifiers), beyond that, registrants closely guard their identifiers. The majority of registrants use their identifiers to converse with family and friends, and to discuss their status as registrants, politically and religiously, as permitted under constitutional Free Speech laws.

Permitting distribution of registrants e-mail addresses and Internet IDs -without consent- PRIVATELY violates registrants Federal Privacy rights (Title 5 USC. 552a(b)) which required specific written approval of the registrant before distribution. Further, registrants having committed no new offense, are merely trying to get on with life in a politically induced hostile society, and not a concern or threat to anyone (except in political and media minds), accordingly none of the "Title 5" exceptions would apply.

Unfortunately, the law that spawned this proposed guideline, "Keeping the Internet Devoid of Sexual Predators Act of 2008" (i.e. the Kid's Act), does imply, if not directly accuse, every registrant of being a "Internet Sexual Predator," without evidence or probable cause, or a hearing where registrants can refute the implied assertion, tainting registrants' Internet reputation and character worldwide.

In addition, the Terms of Agreement of where registrants have their e-mail addresses require that registrants be responsible for its security and use. Once Id's are arbitrarily given out to someone unknown to registrant, who knows how they will use it, and then registrants are responsible for the actions of that unknown party.

Considering above, an appropriate comment might go like this:

OAG Docket No. 134.

To Whom it May Concern:
DISTRIBUTION OF INTERNET Ids by means OTHER THAN PUBLIC WEB SITE: To allow such distribution -without notice and specific registrant approval- would violate all registrants' federal privacy rights (Title 5 USC 552a(b)), and the Terms of Agreements registrants have with Yahoo, Google, etc. which hold registrants responsible for their Id's security and use.

Should specific Internet Id's be released to someone, registrant would have no way to track who the unknown party is, or how they use the ID, and any misuse would make registrant responsible and may even result in criminal charges. Registrants have a right (5 USC 55a(c)(3)) to know who the unknown party is, and a system must be created to specifically notify and obtain a registrant's approval before handing out private Internet information.

Registrants Internet character and reputation have already been stained by politics and the media treatment of all registrants, a registrant does not need some unknown person making matters worse and possibly placing them or their family in harms way.

Thank you..

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PS: Did everyone notice "the national (nonpublic) databases of sex offender information." That tweaks the mind to wonder what national nonpublic databases there are, say other than the FBI? One thought is, that somewhere -on the federal level- there may be contracts with private vendors who also have access to registrants' files. So, if anyone has any idea what they may mean, please comment as I am sure eveyrone would love to know.

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