Action Alert: Supp. Guidelines - Section I (B Internet Identifiers) Part-2

LAST UPDATE: None!

This is likely the MOST IMPORTANT commentary for RSOs to read and understand, because it covers "Internet Identifiers" and "Specific Constitutional Rights." RSOs and their families should seriously consider commenting on the rights mentioned below. I urge folks to take the time to review this, and then comment accordingly, or use the suggested comments below. Remember, AWA is an Act of hidden entrapments and RSOs will not get many chances to voice opinions, please don't waste this one!

The NEW Supp. Guideline (SG) flows from "the Kid's Act" also known as "Keeping the Internet Devoid of Sexual Predators." Concerns with the NEW SG and "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 type #2 only. With that said:

6-13-2010 Washington DC:

The Kid's Act -identifies RSO rights- which RSOs should know about, however, the Supplemental Guidelines (SG) ignores telling RSOs about their rights. Accordingly, here is the relevant Kid's Act language, which describes RSO rights we will discuss:

42 USC 16915a, SEC. 2. DIRECTION TO THE ATTORNEY GENERAL. (pg-1 Kid's Act)

(a) REQUIREMENT THAT SEX OFFENDERS PROVIDE CERTAIN INTERNET RELATED INFORMATION TO SEX OFFENDER REGISTRIES.—

The Attorney General, using the authority provided in section 114(a)(7) of the SORNA ... provide to the sex offender registry those Internet identifiers the sex offender uses or will use of any type that the Attorney General determines to be appropriate under that Act. These records of Internet identifiers shall be subject to the Privacy Act (5 U.S.C. 552a) to the same extent as the other records in the National Sex Offender Registry.

(b) TIMELINESS OF REPORTING OF INFORMATION.— .......

(c) NONDISCLOSURE TO GENERAL PUBLIC.—The Attorney General, using the authority provided in section 118(b)(4) of the Sex Offender Registration and Notification Act, shall exempt from disclosure all information provided by a sex offender under subsection (a).

(d) NOTICE TO SEX OFFENDERS OF NEW REQUIREMENTS.—The Attorney General shall ensure that procedures are in place to notify each sex offender of changes in requirements that apply to that sex offender as a result of the implementation of this section.

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42 USC 16915b, SEC. 3. CHECKING SYSTEM FOR SOCIAL NETWORKING WEBSITES.

(a) IN GENERAL.—

(1) SECURE SYSTEM FOR COMPARISONS.—The Attorney General shall establish and maintain a secure system that permits social networking websites to compare the information contained in the National Sex Offender Registry with the Internet identifiers of users of the social networking websites, and view only those Internet identifiers that match. The system—

(A) shall not require or permit any social networking website to transmit Internet identifiers of its users to the operator of the system, and

(B) shall use secure procedures that preserve the secrecy of the information made available by the Attorney General, including protection measures that render the Internet identifiers and other data elements indecipherable.

(2) PROVISION OF INFORMATION RELATING TO IDENTITY.—
Upon receiving a matched Internet identifier, the social networking website may make a request of the Attorney General for, and the Attorney General shall provide promptly, information related to the identity of the individual that has registered the matched Internet identifier. This information is limited to the name, sex, resident address, photograph, and physical description.

(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—

(1) the name and legal status of the website;
(2) the contact information for the website;
(3) a description of the nature and operations of the website;
(4) a statement explaining why the website seeks to use the system;
(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

(B) if the social networking website finds that information is inaccurate, incomplete, or cannot be verified, the site immediately notifies the appropriate State registry and the Department of Justice, so that they may delete or correct that information in the respective State and national databases;

(6) the identity and address of, and contact information for, any contractor that will be used by the social networking website to use the system; 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

(D) uses information obtained from the system in any way that is inconsistent with the purposes of this Act.

(3) LIMITATION ON RELEASE OF INTERNET IDENTIFIERS.—

(A) NO PUBLIC RELEASE.—Neither the Attorney General nor a social networking website approved to use the system may release to the public any list of the Internet identifiers of sex offenders contained in the system. .....

(D) RULE OF CONSTRUCTION.—This subsection shall not be construed to limit the authority of the Attorney General under any other provision of law to conduct or to allow searches or checks against sex offender registration information.

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RSOs Rights Revealed & Inferred by the Kid's Act

Right-1) RSO Internet Identifiers are protected by Federal Privacy law (5 U.S.C. 552a); (Revealed)

Right-2) A RSO has a right to challenge a denial to a SNS website, IF, the denial is based on information from the "checking system." ;(42 USC 16915b(b)(5)(A)) (Revealed)

Note: RSOs are supposed to receive a "Notice" from the SNS website when the SNS decides the RSO may not access the SNS website. The "Notice" MUST contain: 1) The basis for the denial; and, 2) How to challenge the denial. The "Notice" will likely be a e-mail, letter, or other method of contact; this is a duty of the SNS website, and this is outlined in the Kid's Act.

Right-3) That any RSO illegally denied access to a SNS website, also has a right to notify the U.S. Attorney General (or State equivalent) of that denial, IF, any provision mentioned in #2 is not followed exactly, including time frame. (This is a logically inferred right based on the presence of the statutory right #2 defined in the Kid's Act); (Inferred)

Right-4) That the SG fails to notify RSOs of a grievance system which a individual RSO can use to file grievances about denials that violate the Kid's Act (#2 above). (This is a logically inferred right based on the presence of the statutory right #2 defined in the Kid's Act); (Inferred)

Rights-Constitutional: These rights do not flow from the Kid's Act but are constitutional rights. This is most significant to read and for everyone to comment on! See discussion at end of post!

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Discussion of rights:

First, I'll bet there isn't a single RSO nationally that knew of these rights, because, the powers that be DO NOT take the time or effort to notify RSOs of rights, only RSO duties! This is because they want to document, when and if, a RSO violates something to convict them of a SORNA violation (more on that in my commentary on FORMS).

Right-1: Given the database to allow APPROVED Social Networking Websites to check RSO Internet Identifiers is already established, I doubt much can be done about it.

However, -on a technical point- given the U.S. AG (or State equivalent) automatically provides websites -when they get a hit on a Internet Identifier- (name, sex, resident address, photograph, and physical description [see 42 USC 16915b(a)(2)]), that alone, violates RSO federal privacy rights because the U.S. AG (or State equivalent) has not received BEFOREHAND that specific RSO's approval, required under federal privacy laws (5 USC 552a(b)).

Some folks may wish to comment about that, but, there are bigger issues in the following, that if commented on would be far better to all RSOs nationally. Finally, I have already covered several federal privacy right violations in Part-1 and no need to duplicate here.

Right-2: This is very STRONG RIGHT on which RSOs can comment, and be backed by existing law (The Kid's Act, enacted 2008), and former law (Federal Privacy law, in existence for eons).

OK, everyone has heard the following "90,000 RSOs were purged from MySpace." Whether that is true or not is unimportant, what is important is: Did every single one of the 90,000 receive a "Notice" BEFORE being purged, which, explained the basis for the denial to MySpace, and that, they had a right to challenge the denial? (Required by the Kid's Act)

Does anyone know of ONE person that received such notice? AND, what about other social networking websites (SNS) that have closed RSO accounts, have they followed the Kid's Act? I doubt it. Some may say, well they were denied BEFORE the Kid's Act was enacted! OK, but then SORNA is retroactive, is that also true of the Kid's Act which is being phased into SORNA? Tough issue, do not know the answer to that.

Either way, RSOs are being denied access to SNS websites on a daily basis, so its time to comment and let the cards fall where they may. Remember, the failure to comment means, NO ONE in the SMART Office will address the issue, but, if folks comment then they MUST address the issue!

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POINT-1: Missing from the Supplemental Guidelines and needed for RSOs to exercise their First Amendment right to grieve when any RSO is illegally denied access to a social networking website!

Reasons why RSOs MUST comment and raise issues that flow from RSO Right-2 (42 USC 16915b(b)(5)(A) the Kid's Act)!

First: Because, when a RSO is illegally denial access to a SNS (42 USC 16915b(b)(5)(A)), there is NO WAY for a RSO to exercise his/her First Amendment Right to grieve the illegal denial.

Second: There is no way for the U.S. AG (or State equivalent) to act according to 42 USC 16915b(c)(2)(C) (deny, suspend or terminate the social networking site's use of the checking system for failure to follow subsection (b)(5)).

Accordingly, there needs to be a "Grievance System" -non existent today- for RSOs to grieve illegal acts of social networking sites. This "Grievance System" is missing from the Supplemental Guidelines. RSOs MUST comment to get such a grievance system established to exercise their First Amendment rights when illegally denied access!

Accordingly, an appropriate comment -to cover the above- might go like this:

OAG Docket No. 134

To Whom It May Concern:
The Kid's Act vests RSOs with a right to challenge a denial to a social networking website, when the website bases its denial on information from the checking system (42 USC 16915b(b)(5)(A)).

However, there is no "Grievance System" for RSOs to exercise their First Amendment right to grieve a illegal denial by a social networking website, to the U.S. AG (or State equivalent), those who control the checking system.

Examples of Illegal denials: If the SNS website fails to provide a RSO with a timely "Notice" -or- a "Notice" as outlined in the Kid's Act (42 USC 16915b(b)(5)(A)).

The Supplemental Guidelines MUST make allowances for such a grievance system given the provisions of the Kid's Act (42 USC 16915b(b)(5)(A)).

Thank you.

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Rights-Constitutional:

It is clear that anonymous speech is a well established constitutional right, and especially anonymous political speech, enjoyed by all citizens including RSOs. McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995). RSOs, in spite of any conviction, are entitled to anonymous online speech. Doe v. Shurtleff, 2008 WL 4427594 (U.S. District Court for the District of Utah 2008) and ACLU of Ga v. Miller, 977 F. Supp. 1228 (N.D. Ga 1997)). Adding First Amendment FREE SPEECH rights makes this a package virtually guaranteeing anonymous online free speech. Yet, those under some form of state or federal supervision may have limits imposed on them, but those not so supervised have the full gamut of rights.

The Adam Walsh Act DOES NOT require RSOs to turn over their Internet Identifiers, but -in 2006- the U.S. AG exercising his SORNA right (42 USC 16914(a)(7) "Any other information required by the Attorney General.") added to SORNA's Final Guidelines a requirement for all RSOs to turn over Internet Identifiers.

Can the USAG mandate something which -when provided- immediately violates constitutional rights? A question yet to be answered by the courts. Unfortunately RSOs must under the penalty of a new conviction and prison sentence, RSOs are placed in immediate peril at registration time.

The Kid's Act comes in 2008 (these NEW Supplemental Guidelines -when final- will implement the Kid's Act requirements), which authorizes the USAG to CREATE a secured system of all RSO Internet Identifiers, so that, approved social networking websites (SNS) may compare all of their customers Internet Identifiers to those in the USAG secured system.

When a SNS gets a match the USAG turns over Internet information (the name, sex, resident address, photograph, and physical description.) of the RSO which matches the one on the SNS (violating the RSO's fedederal privacy rights). Upon receipt by the SNS -a SNS employee (a HUMAN BEING)- must do the actual verification check to see if the SNS account is one of a RSO.

Note: This -human invervention- step is the weak link in the system, if RSOs reported tons of Identifiers (not e-mail addresses) claiming they had used them at some point in time, the overall system would come to a crashing halt because SNS could not keep up with the matches they get.

In fact, if one thinks about the procedure, say a RSO reports using "King" at some point in time, it is very likely -as common as "King" is- that SNS are having to check -via an employee (human person)- many of their accounts each time they run them through the secured system. Frankly I think this is hilarious because it shows how foolish the entire system is.

However, at this point in the procedure a few humans have the RSO's Internet Identifiers and other personal information, and while the Kid's Act does say such information MUST NOT be made public via a website, its what the Kid's Act DOES NOT SAY which is of a major conern. There is nothing in the Kid's Act to prevent employees of the SNS or the USAG from monitoring that, or all, RSOs Internet usage, including e-mails.

In fact, in the Kid's Act is the following:

(D) RULE OF CONSTRUCTION.—This subsection shall not be construed to limit the authority of the Attorney General under any other provision of law to conduct or to allow searches or checks against sex offender registration information.

Under any other provision of law: Is it not true that, under all state registration laws law enforcement is permitted to -verify registration information-, home address visits are one example, so, are state registration verification laws, "Other provisions of Law" here?

Conducting Searches: Further, it is not logical to "search" registration information, but it is logical to "search" submitted Internet Identifiers. i.e. maybe even read e-mails or monitor each place a RSO goes on the Internet. Folks may say, but they don't have the passwords? Ahhh, but they have administrative warrants which do not require -probable cause- and they can do what they want with e-mails stored on the Internet or archived by one's ISP provider.

But see: Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana's legislature had "taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, 'papers,' and personal effects.").

So, what exactly does this section of the Kid's Act mean? When these NEW Supplemental Guidelines are made law, does this authorize monitoring and searching of Internet Identifiers, at the whim of law enforcement even when RSOs are using them?

Everyone MUST remember this, even if the Kid's Act is unconstitutional -I believe it is- only a court can say -unconstitutional-, neither the USAG nor the SMART Office have jurisdiction to declare it unconstitutional.

Accordingly, since the SMART Office is in control of what the Supplemental Guidelines will say, the best that can be done today is to convince them -through comments- that searching or monitoring of Internet Identifiers must be prohibited.

This is why folks MUST try to get the Supplemental Guidelines changed by commenting.

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POINT-2: The Supplemental Guidelines DO NOT prohibit using submitted Internet Identifiers to search or monitor a RSO's e-mails or Internet usage and this prohibition must be added.

Accordingly, an appropriate comment -to cover the above- might go like this:

OAG Docket No. 134

To Whom It May Concern:

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)).

In spite of erroneous implications that, "all RSOs are online sexual predators," a claim which allowed the Kid's Act to become law, there is no evidence that RSOs are, or will become, such people. The implication has further damaged RSOs' Internet reputation and character worldwide, causing a hostile society, hampering rehabilitation and reentry into the community.

Supplemental Guidelines must PROHIBT ALL INTERNET -searching or monitoring of RSO Internet Identifiers found in the "checking system" (including accessing of Internet accounts)- ( all suggested by 42 USC 16915b(c)(3)(D) "Rule of Construction") absent probable cause of a crime. RSO personal rights must be addressed in the SG. RSOs regularly engage in non criminal activity and speech, conversing with family, friends acquaintances and when discussing political issues resulting from their status as a RSO.

Finally, some of the "checking system" Internet Identifiers lead to personal bank accounts, medical records and other family matters, such implicating different constitutional and statutory rights, state and federal. No one has any right to this personal non criminal information, more reasons why the Supplemental Guidelines must PROHIBIT use of the Internet Identifiers in the "checking system." Without controls RSOs have no way to protect this life critical information.

Thank you.

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WHERE TO POST COMMENTS:
OK, are your comments ready? Or, above are TWO suggested comments (background color is yellow), you can use those if you wish, but each must be a separate comment on Regulations.gov

So click here:
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.

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