UPDATE: Supplemental Guidelines - ALL Suggested Comments Together

DEADLINE for Commenting: 7-13-2010 11:59 PM

The NEW Supplemental Guidelines affecting SORNA registrants were posted in the Federal Register on 5-14-2010. Within those proposed guideline changes are good and helpful (i.e., those affecting juveniles, ) changes. We are not suggesting ANY comments to those proposed changes as they are fine as written.

However, there are other proposed changes which infringe on registrants personal rights, some constitutional, and even curtail registrants movements in the community and on the Internet. There is one which even suggests monitoring registrants Internet usage and maybe even their e-mails. These are the ONLY types of proposed changes we have suggested folks comment on. To that end, the following are suggested comments about the NEW Supplemental Guidelines.

For those who do not know what to write and comment, and would rather use the suggested comments, and read the supporting reasoning later on, ALL of the following "Suggested Comments" have links back to the explanations, if you wish to read them. At the end of this post are instructions of WHERE to POST Comments, so folks may simply copy and paste personal or the suggested comments into the Regulations.gov form. And, "Anonymous comments" are possible, no personal information is required.

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The following suggested comments is from this commentary: Action Alert: Supp. Guidelines - Section I (B Internet Identifiers) Part-3

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.

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The following TWO suggested comments are from this commentary: Action Alert: Supp. Guidelines - Section I (B Internet Identifiers) Part-2

Accordingly, an appropriate comment 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.

Accordingly, an appropriate comment 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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The following TWO suggested comments are from this commentary: Action Alert: Supp. Guidelines - Section I (B Internet Identifiers) Part-1

Accordingly, 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.

Accordingly, 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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The following TWO suggested comments are from this commentary: REVISED: Supplemental Guidelines - Section II (A International Travel)

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
The Supplemental Guide states: "SG Section II Interjurisdictional Tracking and Information Sharing-- A. International Travel: Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67."

42 USC 16928 states: "REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES. The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States ..."

42 USC 16928 does not permit preventing or controlling registered sex offenders who chose to LEAVE the United States.
Thank you.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
Given that, 42 USC 16928 imposes a duty on the USAG (and other federal agencies) to inform relevant jurisdictions of persons -entering the United States- who are required to register, 42 USC 16928 -in no way- permits restrictions on DOMESTIC travel (movement within the United States) of ALL registrants in every state registry.

To construe 42 USC 16928 as the Supplemental Guideline does, is overreaching and extending it to do things, it simply, is not authorized to do.

Finally, it cannot be forgotten that many RSOs are part of a family unit, and short of eradicating these family units, these overreaching controls impermissibly affect the entire family unit.
Thank you.

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The following TWO suggested comments are from this commentary: ACTION ALERT: Supplemental Guidelines - Section II (C Acknowledgement Forms)

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
State acknowledgment forms FAIL to notify registrants of FEDERAL SORNA requirements, FEDERAL Guidelines (which interpret SORNA and subtle points) and Sec. 2250 requirements, but ONLY mention what is required by State registry law.

The FAILURE of the State acknowledgement forms to notify -ALL REGISTRANTS- of the above, places certain registrants in peril of arrest, prosecution and prison for doing many things customary to daily life. i.e., registrants living near state borders customarily attend family church services, medical appoints, do shopping, etc., and these may be in a bordering state. The FAILURE to notify registrants, of Sec. 2250 at least, places registrants in peril if stopped by police. Registering in the bordering state is even frustrated or impossible because there is no residence to report in that state.

Further, a death of a family member, or friend, may require ANY registrant to cross state lines (temporarily or for several days) or may require travel to another country. The FAILURE of State acknowledgment forms to notify registrants of how to handle such emergencies, and vacations that cross state lines for more than 3 days, all place registrants in peril.

State acknowledgement forms are inadequate in many respects, mainly forms FAIL to notify registrants of SORNA requirements including Federal Guidelines interpreting SORNA, and Sec. 2250.

Thank you.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
Neither the 2010 Supplemental Guidelines nor the 2008 Final Guidelines require states to notify registrants of changes in Federal or State laws, when they do change.

The State acknowledgement forms need to function as forms that notify, not just as forms used to prosecute registrants when they fail to follow requirements of Federal or State law.

Thank you.

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The following suggested comment is from this commentary: Action Alert: Concerns with Supp. Guidelines - Section IV (Retroactive Classes)

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:

The supplemental guideline (IV. Retroactive Classes) brings sex offenders who are no longer in the criminal justice system, which includes former sex offenders whose registration terms have expired, back under SORNA requirements, if they commit a NEW felony or misdemeanor, including those which are not sex offenses.

It is discriminatory to force sex offenders to return to the criminal justice system (which includes SORNA requirements [see SG]), based on NEW non sex offenses, when non sex offenders are not required to return to the criminal justice system (in any fashion similar to SORNA), based on NEW non sex offenses.

Clearly the Supplemental Guideline (IV. Retroactive Classes) is discriminatory, based on felonies and misdemeanors, and violates equal protection under the law.

Thank you.

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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.gov

Remember, you can submit a comment as "Anonymous," no personal information is required.
Read carefully so that your comment will appear as "Anonymous."

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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ACTION ALERT: Concerns with Supp. Guidelines - Section I (B Internet Identifiers) Part-3

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.

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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.gov

Remember, you can submit a comment as "Anonymous," no personal information is required.
Read carefully so that your comment will appear as "Anonymous."

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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National Conference of State Legislatures (NCSL): A review of the NEW SORNA Supplemental Guidelines

6-26-2010 National:

This is a pretty good review but notice how all points made are points that favor the actions of the USAG and the SMART Office.

No points of how the Supp. Guidelines affect registrants, or how the guidelines may affect any rights constitutional or otherwise. And, most importantly, no digging into the subtle workings of the proposed Supp. Guidelines.

While I do not knock NCSL, a independent agency, their review tells us why we need Watchdogs to protect or reveal the, affects and effects of Guidelines and Laws, that are enacted affecting registrants.

With that said, NCSL's review:

Supplemental SORNA Guidelines

On May 14, 2010 the SMART Office issued supplemental guidelines which modify its original guidelines (issued July 2, 2008). All comments on these revised guidelines are due by August 13, 2010. Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW, Washington, DC 20531. Please reference OAG Docket No. 134. Comments may also be submitted electronically.

See Federal Register: May 14, 2010 (Volume 75, Number 93).

The following describes and distinguishes the supplemental guidelines from that of the original SORNA guidelines:

Juvenile Delinquency Adjudications
The supplemental guidelines give states discretion to exempt juvenile delinquency adjudications from public web site posting. Additionally, jurisdictions are not required to disclose adjudications to entities that include certain schools, public housing, social services and volunteer entities. However, the supplemental guidelines do not change SORNA requirements for registration of juveniles adjudicated delinquent for acts constituting serious sex offenses. And, their registration information must be shared with the national database, law enforcement, supervision agencies and registration authorities in other jurisdictions, as applicable.

The original SORNA guidelines require registration of juveniles who have committed certain serious or aggravated acts; and in addition require that jurisdictions post the young offender’s information on the state’s public web site, as well as provide for full disclosure of that information.

Internet Identifiers
The supplemental guidelines require rather than recommend that jurisdictions exempt sex offenders’ email addresses and other Internet identifiers from public web site posting. This change does not limit use of that information for law enforcement and supervision purposes; and does not limit the discretion of jurisdictions to include on public web sites functions that allow the public to ascertain whether a particular email address or Internet identifier is reported as that of a registered sex offender.

The original SORNA guidelines discouraged but did not disallow the inclusion of sex offenders’ Internet identifiers on the public web sites.

Interjurisdictional Tracking and Information Sharing
The supplemental guidelines expand required registration information to require offenders notify the registration jurisdiction at least 21 days in advance of international travel. The residence jurisdiction is then required to notify the U.S. Marshalls Service and must transmit the information to national databases, law enforcement and supervision agencies, and other jurisdictions as provided in the original guidelines. The supplemental guidelines reflect interagency work of federal agencies to develop a system for consistently identifying and tracking international travel or persons required to register as sex offenders. (Certain exceptions to the 21 day requirement are allowed for urgent, unexpected, emergency travel circumstances.)

The original SORNA guidelines require offenders to notify their residence jurisdiction of any planned travel outside of the United States; and further require that registered sex offenders inform residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether it is the result of domestic or international travel.

Domestic Interjurisdictional Tracking
The supplemental guidelines clarify that jurisdictions must have a policy to regularly access the SORNA Exchange Portal, which provides for immediate sharing of information among jurisdictions with regard to changes or updates to offender registration information.

The original SORNA guidelines task the Attorney General with developing support software to facilitate an immediate exchange of information among jurisdictions. The SMART office has since created and maintains the SORNA Exchange Portal, which enabled the immediate exchange of information about registered sex offenders among the jurisdictions.

Acknowledgement Forms
The supplemental guidelines expand registration information to include the form signed by a sex offender acknowledging that he or she was advised of their registration obligations. This information supports jurisdictions’ enforcement of the registration requirement which under SORNA includes penalties for failure to comply.

The original SORNA guidelines provide that sex offenders are to be informed of their registration requirement and required to sign acknowledgement that this information has been provided upon initial registration.

Ongoing Implementation Assurance
The supplemental guidelines address substantial implementation with the stated requirement that laws and rules be accompanied by demonstration of those in practice. The supplement clarifies that the SMART office in reviewing compliance will undertake review of laws and policies, procedure manuals, description of infrastructure and technology resources, and information about personnel and budgetary measures relating to the operation of the jurisdiction’s registration and notification system. Also clarifies that jurisdictions that have substantially implemented SORNA have a continuing obligation to maintain their system’s consistency with current SORNA standards in order to be eligible for full Byrne Justice Assistance Grant (JAG) funding. Jurisdictions that do not receive JAG funding because of non-implementation of SORNA may regain eligibility for full funding in later program years by substantially implementing SORNA in such later years.

The original SORNA guidelines explain that the SMART Office will determine whether jurisdictions have substantially implemented the SORNA requirements in their programs and that jurisdictions are to provide submissions to SMART to facilitate this process.

Retroactive Classes
The supplemental guidelines modify and narrow retroactive registration requirement with regard to persons outside the justice system (that is, those not in prison, on probation, parole, supervised release) but who have a record of a previous sex offense that would constitute a present registration requirement under SORNA. Jurisdictions are required to register only those who reenter the system with a new felony conviction (described as one for which the statutory maximum penalty exceeds one year of imprisonment.). The supplemental guidelines do not modify requirements that apply to new criminal convictions for any sex offense, which independently carry a registration requirement under SORNA.

The original SORNA guidelines require jurisdictions to register sex offenders with pre-SORNA or pre-SORNA implementation sex offense convictions who remain in the system as prisoners, supervisees or registrants, or who reenter the system through a subsequent criminal conviction.

Newly Recognized Tribes
The supplemental guidelines allow Indian tribes that receive federal recognition following the enactment of SORNA a period of one year to elect whether to become a SORNA jurisdiction. Such decision to be a SORNA registration jurisdiction (rather than defer those responsibility to a state ) also provides for a period of three years for implementation with two possible one year extensions.

The original SORNA guidelines gave federally recognized tribes until July 27, 2007, to declare whether they would become a SORNA registration jurisdiction or delegate registration and notification functions to a state or states. ..Source.. by NCSL

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ACTION ALERT: Concerns with Supp. Guidelines - Section IV (Retroactive Classes)

UPDATED: 6-25-2010

6-25-2010 Washington DC:

In our original announcement of these NEW Supplemental Guidelines, the Juvenile Justice site said, that:

3) Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only.

This is questionable, below we will show what the NEW SG actually covered.

Here is the FULL text of the NEW Proposed Supplemental Guidelines in the Federal Register 5-14-2010. We will address Sec. IV Retroactive Classes based on the following from the NEW SG.

NEW Supplemental Guidelines:

Section VI Retroactive Classes Page-5 Supp. Guideline.

SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3 (Right hand column). ........

These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants.

It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense.

As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.

This allowance only establishes the minimum required for substantial implementation of SORNA in this context.

Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction’s registration law.

Sometimes it is hard to see the forest through the trees, so, the two "White-background" insets above are actually continuations of the sentence above each. No guideline is more egregious than this one, as you will see. This one amounts to discriminatory treatment of sex offenders, handling sex offenders differently than non sex offenders under similar circumstances (felonies and misdemeanors).

Lets take this from the top down, citing from the SG:

1) SORNA is applicable to everyone ever convicted of a sex offense;

2) This guideline separates sex offenders into TWO Groups: A) Those who are no longer prisoners, supervisees or registrants -AND- B) Those who are prisoners, supervisees, or registrants. Note: SORNA actually does this. 42 USC 16913 (d) and (b) respectively.

3) Effectively this guideline addresses "WHEN" Group-A should be registered. Group-A are those no longer under the umbrella of the criminal justice system, at the time when SORNA was enacted. Note: The term "criminal justice system" is used in the SG, and SORNA is considered part of the criminal justice system, also found in the SG.

4) This guidelines establishes the "Minimum" States must follow to be considered "In-Compliance" by the SMART Office. But, also allows States to be more strict if they chose to be. i.e., the theory that, SORNA is the floor not the ceiling.

Why do we consider this SG most egregious?

Discriminatory Treatment (NEW Felony Offenses):

Former sex offenders, no longer under the umbrella of the criminal justice system (Group-A), will have to register when they commit ANY type of NEW FELONY. In essence this says, these persons are a danger to society because they have committed two or more felonies, and must be watched and monitored.

However, as to any other type of felony offender, when they commit TWO FELONIES or more that are -non sex offenses-, they are not considered a danger to society and do not have to be watched or monitored.

The key to that recidivist discussion is, the guideline is based on ANY TYPE OF FELONY, not a felony sex offense.

Discriminatory Treatment (NEW Misdemeanor Offenses):

Former sex offenders, no longer under the umbrella of the criminal justice system (Group-A), will have to register when they commit a new misdemeanor -sex Offense-. In essence this says, these persons are a danger to society because they have committed two or more -sexually motivated crimes- misdemeanor following a felony offense (and maybe misdemeanor -non sex offense- following misdemeanor sex offense [SG not clear on this construction]), and must be watched and monitored.

However, as to any other type of former felony offender, when they commit a new misdemeanor in the same vein as the earlier felony, they are not considered a danger to society and do not have to be watched or monitored.

Rubbing salt into the wound:
Group-A former offenders, since they are no longer under the criminal justice system, it is very unlikely they will see these changes to the guidelines and have no opportunity to provide input to assert their positions! Another one of those HIDDEN Adam Walsh Act entrapments. If these persons knew of this, it may keep them from committing a new offense.

Accordingly, it is up to those who do see these new supplemental guidelines to assert issues for them. Everyone, former sex offenders -in the system- AND those who are -no longer in the system- must stand up for the rights of ALL. Remember, one day the term of registration -for everyone- will come to an end and release folks from registration, bar a retroactive application of a new guideline in the future to the contrary.

In fact, this should upset anyone TODAY and everyone should demand that, the guidelines treat everyone who is no longer under the criminal justice system -including those who have completed registration terms-, and DO NOT draw them back into SORNA based on non sex offenses! Or, in the alternative, treat ALL types of offenders like sex offenders are treated, and make them register as well.

Recently in Maine some 400 registrants were released from their requirements to register, likewise in Ohio the Attorney General is right now putting old classifications back into place based on the Ohio supreme court decision, some may not longer have to register. These persons, and others like them, will again have to register under SORNA if they commit a NEW non sexual Felony or if they commit a new sexual misdemeanor, according to this new guideline. And we have yet to find out if this SG change will be applied retroactively. Need anymore be said as to why everyone needs to address this supplemental guideline change?

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:

The supplemental guideline (IV. Retroactive Classes) brings sex offenders who are no longer in the criminal justice system, which includes former sex offenders whose registration terms have expired, back under SORNA requirements, if they commit a NEW felony or misdemeanor, including those which are not sex offenses.

It is discriminatory to force sex offenders to return to the criminal justice system (which includes SORNA requirements [see SG]), based on NEW non sex offenses, when non sex offenders are not required to return to the criminal justice system (in any fashion similar to SORNA), based on NEW non sex offenses.

Clearly the Supplemental Guideline (IV. Retroactive Classes) is discriminatory, based on felonies and misdemeanors, and violates equal protection under the law.

Thank you.

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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.gov

Remember, you can submit a comment as "Anonymous," no personal information is required.
Read carefully so that your comment will appear as "Anonymous."

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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ACTION ALERT: Supplemental Guidelines - Section II (C Acknowledgement Forms)

UPDATED: 6-23-2010

In the NEW Supplemental Guidelines, section titled "II. Interjurisdictional Tracking and Information Sharing" there are three sub-sections A-B-C. In this commentary we cover C. Acknowledgement Form.

6-20-2010 Washington DC:

PROBLEM: In the Proposed Supplemental Guidelines (SG), "II. Interjurisdictional Tracking and Information Sharing (C-Acknowledgement Forms)" the USAG through the SMART Office has interpreted SORNA to require State Registrants to sign an acknowledgement form, that states, registrants know the requirements of SORNA. The SG (when finalized) are then sent to State legislatures who are supposed to enact laws per the guidelines, including any forms required by the SG.

While State lawmakers are quick to enact changes to laws, so far, none have done anything about conforming State forms to SORNA requirements. So, the result is, the State forms NEVER MENTION anything about SORNA requirements, but mention ONLY what that state requires. This lack of SORNA notice creates hidden significant problems for some registrants, under special and unusual circumstances.

Scenario: Suppose a registrant goes on vacation, crossing state lines or multiple state lines, and is stopped by the police, when the police check, the registrant is not registered in that state. Registrants, can be or are, prosecuted in Federal court, where the forms signed by the registrant -in the home state- are presented in court, along with the Federal Guidelines, and the registrant is ultimately convicted of FTR (Failure to Register) and faces up to 10 years in prison (SORNA's penalty for FTR).

Effectively this happens: The court holds the signed acknowledgement form from the -home state- in one hand, and the SORNA Guidelines in the other hand, the court can only come to one conclusion, defendant knew about the SORNA Guidelines and violated them, then convict registrant. Lawyers are not aware of the subtle tricks crafted into SORNA, and do not do enough research to find them.

It is never mentioned that the State failed to inform the registrant of SORNA requirements, the court assumes he was notified, end of case. This is an onerous piece of legislation which entraps registrants.

Special and Unusual Circumstances: Other scenarios are: death in the family in another state, medical emergencies, registrants living on state borders, may cross state line to attend a movie, medical appointment, or even church services, etc. (Likely there are more but folks have mentioned these)

Also in the NEW SG is an attempt to control DOMESTIC movements of ALL registrants (See Concerns with Supp. Guidelines - Section II (A International Travel) REVISED POINT-2). Clearly a death in a family (an emergency) -in another state or country- could very well cause a registrant to be away from home 7 or more days, and may even involve International travel. Folks are advised that TWO comments may be required: 1) for the DOMESTIC movements control; and, 2) Here pertaining to the forms used by States.

In the recent case of Carr -v- US (US Sup court), Carr raised the failure to notify about SORNA requirements (in the District Court) and the court glossed over it because of what the State form said, which he had signed. There was no way Carr knew of the FEDERAL Sec. 2250 law and punishment!

Specifics follows:

In the Federal Register (5-14-2010) is the FULL text of the NEW Proposed Supplemental Guidelines. I will be addressing TWO POINTS based on the following from the SG and something found in the Final Guidelines from 2008.

NEW Supplemental Guidelines:

SG Section II Interjurisdictional Tracking and Information Sharing--

C. Acknowledgement Forms

SORNA provides that sex offenders are to be informed of their registration obligations and required to sign acknowledgments that this information has been provided upon their initial registration. See 42 U.S.C. 16917. ......

SORNA requires jurisdictions to provide criminal penalties for sex offenders who fail to comply with SORNA’s requirements, see 42 U.S.C. 16913(e), and Federal criminal liability is authorized for sex offenders who knowingly fail to register or update a registration as required by SORNA under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250.

Successful prosecution of sex offenders for registration violations under these provisions may require proof that they were aware of a requirement to register. The acknowledgment forms signed by sex offenders regarding their registration obligations are likely to be the most consistently available and definitive proof of such knowledge. ........

The authority under 42 U.S.C. 16914(b)(8) to expand the range of required registration information is accordingly exercised to require that sex offenders’ signed acknowledgment forms be included in their registration information. The existing Guidelines already provide that acknowledgment forms covering the SORNA requirements are to be obtained from registrants as part of the SORNA implementation process and thereafter. See 73 FR at 38063–65.

Final SORNA Guidelines issued July 2, 2008 found in that day's Federal Register:

Final SORNA Guidelines Page-4:
Additional implementation tools the SMART Office is developing include: ......... checklists that jurisdictions will be able to use to evaluate whether the SORNA requirements are met in their programs and to structure their submissions to the SMART Office establishing SORNA implementation; model forms that jurisdictions will be able to use to inform sex offenders about their obligations under SORNA; and model ......

SORNA Final Guidelines Page-35:

The specific initial registration procedures required by section 117(a) are as follows: Informing the sex offender of his or her duties under SORNA and explaining those duties. (Of course if the jurisdiction adopts registration requirements that encompass but go beyond the SORNA minimum, the sex offender should be informed of the full range of duties, not only those required by SORNA.)

Requiring the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement. ...........

With respect to sex offenders with pre-SORNA or pre-SORNA implementation convictions ............... —jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible, including fully instructing them about the SORNA requirements, obtaining signed acknowledgments of such instructions, ............ .........

Note: The Final Guidelines -as printed in the Federal Register- are NOT EXACTLY in the same format as the copy on the SMART site. The SMART site copy seems to be an interpreted version. I have never checked them word for word, I'll leave that to some energetic person. I prefer to work from the official copy in the Federal Register.

POINT-1: States fail to follow SORNA Guideline requirements -on State forms registrants must sign- which places many registrants in peril of arrest under "Special and Unusual Circumstances."

Reviewing the "Final Guidelines" it is clear, States are to inform registrants about "SORNA Requirements" "In Addition" to any State requirements that go beyond SORNA. And, the SMART office was developing a "Model Form" for States to use. Without having seen the model form I can only believe it conformed to SORNA wording which is clear.

Now if a State was asked why their forms do not speak of "SORNA Requirements" may respond with, "we interpret that to mean 'State Registry Laws'." But that does not comply with Federal Guidelines interpretation of "SORNA Requirements" which clearly explain BOTH (Sate and Federal) need to be explained to registrants. (See FG p-35 above)

States ignore two things: 1) That Sec. 2250 is part of SORNA Requirements; 2) That Federal Guidelines mandate States explain both (which includes Sec. 2250) to registrants. The result of the State failure to follow Federal Guidelines is, that some registrants are seriously placed in danger of arrest through no fault of their own. And when arrested are immediately in violation of SORNA wondering how this happened.

OK, why is this an issue AFFECTING every single registrant in the nation?

Two reasons: 1) Even though a specific issue doesn't seem to apply to one's current circumstance AT THE MOMENT, one never knows when they be in one of the Special Circumstances mentioned earlier, and when they occur it is too late then to do anything but plead guilty and spend time in prison; 2) Lawmakers who do speak (occasionally) up for registrant issues, can be counted on one hand, so ALL Registrants must fight whenever they are given an opportunity, lawmakers will not speak-up for registrants.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
State acknowledgment forms FAIL to notify registrants of FEDERAL SORNA requirements, FEDERAL Guidelines (which interpret SORNA and subtle points) and Sec. 2250 requirements, but ONLY mention what is required by State registry law.

The FAILURE of the State acknowledgement forms to notify -ALL REGISTRANTS- of the above, places certain registrants in peril of arrest, prosecution and prison for doing many things customary to daily life. i.e., registrants living near state borders customarily attend family church services, medical appoints, do shopping, etc., and these may be in a bordering state. The FAILURE to notify registrants, of Sec. 2250 at least, places registrants in peril if stopped by police. Registering in the bordering state is even frustrated or impossible because there is no residence to report in that state.

Further, a death of a family member, or friend, may require ANY registrant to cross state lines (temporarily or for several days) or may require travel to another country. The FAILURE of State acknowledgment forms to notify registrants of how to handle such emergencies, and vacations that cross state lines for more than 3 days, all place registrants in peril.

State acknowledgement forms are inadequate in many respects, mainly forms FAIL to notify registrants of SORNA requirements including Federal Guidelines interpreting SORNA, and Sec. 2250.

Thank you.

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POINT-2: Neither the Final Guidelines (from 2008) nor the New Supplemental Guidelines (2010) mandate States to notify and explain "changes in laws (both State and Federal)" and obtain new forms when changes occur.

Registrants must stand and make lawmakers rid laws of HIDDEN INTERPRETATIONS (requirements) which ultimately entrap registrants. Clear concise language -with finality- must be the goal. Finally, notification is a requirement of due process, the forms used by States, absent Federal SORNA requirements, and clear language, violate due process.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
Neither the 2010 Supplemental Guidelines nor the 2008 Final Guidelines require states to notify registrants of changes in Federal or State laws, when they do change.

The State acknowledgement forms need to function as forms that notify, not just as forms used to prosecute registrants when they fail to follow requirements of Federal or State law.

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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SORNA: New Supplemental Guidelines

Many are wondering what these NEW Supplemental Guidelines are all about. This is where you find out -what is GOOD -and- BAD about them-. So, onward to find out:

Washington DC:

On 5-14-2010 The U.S. Attorney General and the SMART Office posted the NEWLY PROPOSED Supplemental Guidelines in the Federal Register, asking for public comment. Anyone may comment but all comments MUST be in by 7-13-2010 at midnight; not a minute later.

Within the Supplemental Guidelines are the following sections:

I Public Notification

A. Juvenile Delinquents
B. Internet Identifiers

II. Interjurisdictional Tracking and Information Sharing

A. International Travel
B. Domestic Interjurisdictional Tracking
C. Acknowledgment Forms

III. Ongoing Implementation Assurance

IV. Retroactive Classes

V. Newly Recognized Tribes

Some folks have voiced concerns over portions of the above, and to that end, we have researched and reviewed those concerns in published Commentary (see below list), and prepared "suggested comments" to cover concerns. "Suggested Comments" may be used or folks may write their own comments.

Whatever section you chose to comment on, it is critically important to stick to that specific topic. Also, and very hard to do, leave out personal feelings, getting your -legal point- across is the main focus, because that is what may cause the SG to be changed.

Comments are entered on Regulations.gov and they have rules:
Each comment may not be greater than 2,000 characters (including spaces), and each comment MUST have "OAG Docket No. 134" first in the comment. They only permit 20 minutes to enter a comment, so it is best to prepare your comment beforehand, and copy-and-paste your pre-prepared comment into the Regulations.gov Comment Area, when you get there. Finally, you may comment as many times as you like.

Published Commentary

• Preface: Supp. Guidelines - What is critically important to comment about?
• How to Comment: Supp. Guidelines - Comments Can Now Be Submitted


• (A) Initial Concerns with Supp. Guidelines (Comments due by 7-13-2010)
• (B) Concerns with Supp. Guidelines - Section II (A International Travel) REVISED
• (C) Concerns with Supp. Guidelines - Section I (B Internet Identifiers) Part-1 (UPDATED 6-21)
• (D) Concerns with Supp. Guidelines - Section I (B Internet Identifiers) Part-2
• (E) Concerns with Supp. Guidelines - Section II (C Acknowledgment Forms)
• (F) Concerns with Supp. Guidelines - Section IV (Retroactive Classes)
• (G) Concerns with Supp. Guidelines - Section I (B Internet Identifiers) Part-3


• FINAL: Supplemental Guidelines - ALL Suggested Comments Together

Finally, folks need to remember, this is the last opportunity to comment before these Supplemental Guidelines become law, and they will trickle-down into each individual state registry law. There is GOOD and BAD in the SG, please comment on the bad. The BAD is very invasive to RSOs and affects their families as well. DEADLINE for Commenting is 7-13-2010 11:59PM.

Thanks,
eAdvocate

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WHERE TO POST COMMENTS:
OK, are your comments ready? Or, will you be using suggested comments? Either way, click below to post on Regulations.gov

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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REVISED: Supplemental Guidelines - Section II (A International Travel)

UPDATED: 6-18-2010

I've received a few e-mails requesting that I provide a "Suggested Comment" like I have in other commentaries about the New Supplemental Guidelines. So, I have done that below, and folks can use the "Suggested Comment" they do address the main issues raised in the SG.

In the NEW Supplemental Guidelines, section titled "II. Interjurisdictional Tracking and Information Sharing" there are three sub-sections A-B-C. I will be commenting on each separately as I see troubles with each and do not want to confuse folks by placing everything in one post.

6-18-2010 Washington DC:

PROBLEM: In Section II-A of the "Proposed Supplemental Guidelines (SG)" the SMART Office has violated the U.S. Constitution. They cite a specific AWA section (42 USC 16928) -as authority to do what the SG explains-, but the cited authority does not permit them to do what the SG explains. Effectively, the SMART Office has exceeded its constitutional authority in interpreting the Adam Walsh Act. Explanation follows:

In the Federal Register (5-14-2010) is the FULL text of the NEW Proposed Supplemental Guidelines. I will be addressing TWO POINTS based on the following from the SG.

SG Section II Interjurisdictional Tracking and Information Sharing--

A. International Travel states the following:

Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67. To that end, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions if they intend to commence residence, employment, or school attendance outside of the United States, and that jurisdictions that are so informed must notify the U.S. Marshals Service and update the sex offender’s registration information in the national databases. See 73 FR at 38067. (Regarding the general requirement to provide registration information for inclusion in the National Sex Offender Registry and other appropriate databases at the national level, see 42 U.S.C. 16921(b)(1); 73 FR at 38060.) In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066. ... (two more paragraphs not relevant to my Points)

POINT-1: Notice in the proposed Guideline above it says "who enter or leave the United States. See U.S.C. 16928." The problem is, 16928 DOES NOT SAY THAT, here is verbatim what it does say:

42 USC 16928 -- SEC. 128. REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES.

The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.

Whether or not it is logical to do what the SG says (highlighted above), is not the issue, the issue is, the cited authority does not permit controlling RSOs who decide to leave the United States, see 42 USC 16928.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
The Supplemental Guide states: "SG Section II Interjurisdictional Tracking and Information Sharing-- A. International Travel: Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67."

42 USC 16928 states: "REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES. The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States ..."

42 USC 16928 does not permit preventing or controlling registered sex offenders who chose to LEAVE the United States.
Thank you.

POINT-2: Notice the other highlighted portion in the SG above: "In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066."

Micro-Managing RSOs lives (and their family as well):

i)Notice how, under a guideline that supposedly addresses "International Travel" the SMART Office brings in "DOMESTIC" movement as to ALL RSOs. i.e., micro-managing lives, vacations, visiting family, professional conventions, medical reasons, job interviews, taking a son or daughter to a sporting event somewhere away from residence, and emergency circumstances, etc. If 42 U.S.C. 16928 is authority -as claimed by the SG- then it will not support "Domestic" movement (travel).

ii) While it may be permissible to control the lives of RSOs who are still under some form of supervision, as to those not under supervision, this "notification of residence jurisdiction" when folks are going to be say, on vacation for more than 7-days, is over-control in this writer's opinion. This is likened to placement of folks on parole or probation (or some new form of community supervision).

iii) A close review of 42 U.S.C. 16928 does not permit any construction which requires RSOs to act in any manner, nor anything that permits control of RSOs and their family. 16928 clearly says "The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions." Authorities are to develop a system to inform relevant jurisdictions, which they have translated into, RSOs should inform relevant jurisdictions. RSOs are not employees of those agencies, and it is unlikely they will get paid for doing the job of the agency.

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:
Given that, 42 USC 16928 imposes a duty on the USAG (and other federal agencies) to inform relevant jurisdictions of persons -entering the United States- who are required to register, 42 USC 16928 -in no way- permits restrictions on DOMESTIC travel (movement within the United States) of ALL registrants in every state registry.

To construe 42 USC 16928 as the Supplemental Guideline does, is overreaching and extending it to do things, it simply, is not authorized to do.

Finally, it cannot be forgotten that many RSOs are part of a family unit, and short of eradicating these family units, these overreaching controls impermissibly affect the entire family unit.
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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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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