new—and continuing—danger for some US passport holders

The Frederick Douglass Bill failed to pass in Congress, which might be reason to celebrate if you read my earlier posts about this bill, dangerous amendment to International Megan's Law, and call to action: fight back against IML amendment. Unfortunately, the section of the failed bill that would have expanded the reach of the sex offense registries was dropped into another bill that did pass.

My friend who has been tracking this issue writes again about the devastating impact of this legislation.

Frederick Douglass Bill 'Fails' in Congress
Many people know the story of Frederick Douglass, the escaped slave who became a hero to his nation and his people. Some people also know his famous address, "What to the Slave is the Fourth of July?" In that address Douglass lays bare the hypocrisy at the root of American virtue. That hypocrisy is alive and well today. 

Not least because Frederick Douglass' name has been on a law to fight human trafficking. The descendants of Frederick Douglass came out in support of the bill (H.R. 6552) reauthorizing funds for this law. What they chose to overlook was an unrelated section placed in that bill which would make Frederick Douglass turn in his grave.  

That section was numbered 201. It would have expanded International Megan's Law (IML), the law that brands people convicted of certain historic criminal offenses as dangerous individuals who need to be tracked to the far ends of the earth. It also would have expanded that law to track and brand individuals who already live outside the USA as well as non-US citizens from dozens of countries who fit the same general description as those Americans. 

The reason for these provisions was said to be the need to combat sex tourism. But there is no evidence that any of the tracked people are sex tourists; a person who resides outside the USA is by definition not a tourist. A non-American in their own country is not a tourist. And Americans who have been convicted of the crime of sex tourism are already barred from being issued a passport. What is really taking place is not an effective fight against sex tourism but instead the globalization of discrimination against a despised class of human beings. These human beings are statistically no more dangerous than any other group of human beings. Just more despised. 

Frederick Douglass was accustomed to this treatment. He was not issued a US passport when he applied for one because he was not considered a proper citizen. He was tracked as a fugitive slave. He was said to be dangerous, and people were warned to avoid him. He was also guilty of a sex crime, having decided to cohabit with and marry a woman of another race, which was against the law in many states. 

The lead sponsor of this legislation, Congressman Chris Smith of New Jersey, is a  persistent man. It took him almost a decade and many attempts to pass International Megan's Law. He finally succeeded in getting it passed by tying it to several uncontroversial, noble-sounding bills in 2016. 

This time he failed to cross the finish line before the end of the Congressional session. His reauthorization bill passed the House during the summer with the offensive section 201 removed after many people rightly objected to it; but it died in the Senate.  

However, the story does not end there. His allies in the Senate, Senators John Cornyn and Amy Klobuchar, both former prosecutors, succeeded in resurrecting the language of section 201 in section 323 of another bill, S. 3946, also a human trafficking reauthorization act. 

This change in the law means that the US State Department will now place "unique identifiers" on the passports of even more people. These identifiers consist of language stating that the bearer of the passport was convicted for the sexual abuse of a minor: that is to say, a very broad category of felonies including not just serial rapists but also teenagers caught sexting, viewing pornography, or streaking. 

No longer will this provision of the bill be meant for other countries to determine in advance whether a visiting American poses a danger to their citizens. Americans already living in other countries will also have their passports marked with the warning. It will not say how long ago their conviction occurred or provide any context, leaving it up to the viewer of the passport to imagine the worst; and to do whatever they like to the passport holder. 

Section 323 of the bill also contains language that allows the Department of Homeland Security to share information from US sex offender registries with foreign governments in exchange for information about about "comparable" historic convictions. It does not state what will be done with this information, where and how long it will be kept, with whom it will be shared, how or even if it its accuracy will be checked. 

Needless to say, laws and definitions vary greatly from country to country. Many countries, for example, criminalize same sex activity, or did in the past. Will foreign governments give the names of LGBTQ+ persons to the US government and identify them as dangerous criminals with historic convictions? If so, what will happen to them if they try to enter the USA, or if they're already living in the USA as law-abiding residents? Again, the bill does not say. 

Finally, Section 323 of the bill oversteps the IML by placing these two provisions under other federal laws relating to human trafficking (William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008) and terrorism (Homeland Security Act of 2002). So Americans and others with sex convictions can relax: You are no longer sex tourists! Instead, now under federal law, you are human traffickers and/or terrorists. 

Senators Cornyn and Klobuchar had more success than Representative Smith because their bill was not subject to any committee hearings or debate. Its text was not released until the final week of the session, when it landed on the floor of the Senate and then passed by a voice vote. The next day it went to the House, which passed it in the same way, just before Congress shut down for the year. 

The one detail that appears to have been lost in all this shady legislating is the name of Frederick Douglass. 

Why do such bills become law? It is easy to say that these measures are popular or that nobody wants to vote against them. But it's not that simple. S. 3946 had no co-sponsors besides the two Senators who wrote it. The bills usually pass quickly at the end of a session for a more perverse reason. The truth is that most legislators would rather not have much to do with them. They are promoted by a small, persistent minority of zealots who accede to having them buried in unrelated, uncontroversial legislation. This method is called embedding. For example, Senator Cornyn once hid an anti-abortion provision in a similar bill, and nearly succeeded in getting it passed. This method is not too different from what the notorious abuser Jimmy Savile did by hiding his own obsession in the plain sight of noble charity work. 

Chris Smith is known for his championing of human rights. His service on human rights committees and caucuses, including heading the House's special task force on combating antisemitism, another commission named for a famous Holocaust survivor (Tom Lantos), and for many years the US Helsinki Commission (which was established to defend the freedom of movement), grant him credibility and facilitate the laundering of his hatreds, his prejudices, and his passions. 

Smith comes from the same part of New Jersey as Supreme Court Justice Samuel Alito, who has said that "the United States should not be exporting its pedophile problems to other countries." But that is exactly what it is doing: the number of countries that now have sex offender registries has multiplied since the USA pioneered them. Both Alito and Smith (until recent redistricting) lived in the same town in which poor Megan Kanka, who gave her name to the IML, was murdered.  

It is understandable to want vengeance for crimes. But vengeance does not equate to justice. And collective punishment is never just. 

To put it another way, quoting the late Ruth Bader Ginsburg's dissent in Smith v Doe (2003), such registry laws are "ambiguous in intent and punitive in effect." 

It is not the inquisitors and the vengeful who are entirely to blame for injustice in this instance, however. It is the silent majority. Complicit are the human rights organizations, the clergy, the media, the bureaucrats, and the many legislators who kept silent knowing the damage the IML and related laws have done and will continue to do to the lives of more and more people. Once these provisions start extending their reach, they won't stop unless the silent majority speaks up and says, enough is enough. 

The complicit also include the president who originally signed the IML into law, Barack Obama, who often spoke of having a dignity agenda; and the president who just signed S. 3946, Joe Biden. 

They include the Douglass bill's original co-sponsor, Karen Bass, who is known to be a loyal friend of the LGBTQ+ community and who said, in defending the bill, that its aim is to "protect all of humanity equally." 

They include the three cabinet secretaries whose departments enforce it and related laws: Homeland Security, Justice, and State. All three men have gone out of their way to link their commitment to public service with doing everything they can to prevent a recurrence of the injustice, collective punishment, and dehumanization suffered by members of their families at the hands of the Nazis.  

They include the Senate Majority Leader, who plucked S. 3946 from obscurity for a last-minute vote; and the chairman of the House Judiciary Committee, who did the same before he introduced its passage in the House. Both also happen to be prominent leaders of the Jewish-American community who generally speak up in favor of civil and human rights. 

And they include the constituents of these politicians, such as the large community of Orthodox Jews living in Representative Smith's district who have voted reliably to keep him in office for more than four decades. 

For good reason, Jewish people object to being compared to convicted criminals; but it is a historical fact that no other other country besides Nazi Germany has branded the passports of a despised class of its own citizens. Before the IML the only group of people who were singled out like this were Jews. It should make not just Jewish Americans but all Americans feel sick to their stomachs. 

Yet, again, no major religious, civil or human rights organization has publicly resisted this policy affecting around a million US citizens, including juveniles guilty of nothing more than sending a selfie, and numerous others around the world who may not be guilty of anything at all under US law. None of the groups praising the State Department for recently incorporating a gender-neutral option for passports has criticized it for moving a special warning about illicit sex from the back to the front of the passport book. None of the groups whose members are now regularly praised for their courage and righteousness has spoken out against the same policies of dehumanization and discrimination that were once applied to them.  

This is the same sort of hypocrisy, fear, and cowardice in the face of what are assumed to be insurmountable public attitudes which gives the bigots and oppressors of hated minorities their power and sustenance.  

The inquisitors and their silent accomplices do not speak about such perverse ironies. But Frederick Douglass did. He said, in 1852, "The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretense, and your Christianity as a lie. It destroys your moral power abroad; it corrupts your politicians at home. It saps the foundation of religion; it makes your name a hissing, and a bye-word to a mocking earth. It is the antagonistic force in your government, the only thing that seriously disturbs and endangers your Union. It fetters your progress; it is the enemy of improvement, the deadly foe of education; it fosters pride; it breeds insolence; it promotes vice; it shelters crime; it is a curse to the earth that supports it; and yet, you cling to it, as if it were the sheet anchor of all your hopes...." 

The anchor was lifted in time, but not enough for Frederick Douglass' name later to be taken in vain. Chris Smith was just reelected. He can be expected to sponsor a good deal more legislation. [Emphasis throughout is mine.]

The existence of sex offense registries makes it possible for our own government to put people at risk both at home and abroad. International Megan's Law makes it possible for foreign governments to do the same.

call to action: fight back against IML amendment

In November, I wrote about a dangerous amendment to International Megan's Law (IML) currently under consideration in Washington DC. A friend who is following the bill closely wrote me with his observations and a warning that this bill is likely to pass:

Last week, the House Committee on Foreign Affairs voted to approve the Frederick Douglass Trafficking Victims Protection Reauthorization Act of 2022. The vote was unanimous and no amendments were passed. There was no debate about the bill, apart from a brief discussion of its cost and a couple of unrelated matters.

It was the second version of the bill from this Congressional session. The first bill, H.R. 5150, was much longer and contained some good provisions. Several of them were removed from the second bill, H.R. 6552 -- notably one that made important allowances for juvenile victims of human trafficking who are convicted of crimes against their traffickers. 

One other, not so good, section remained. It is section 201, which amends and redefines aspects of the International Megan's Law, and reauthorizes it for another five years. It applies the IML not only to people who anticipate foreign travel but also to people who already live in other countries. The US government will now notify other governments of the criminal records of these people, and it may revoke their passports because those passports do not have the special mark required by the IML. Previously, passports were revoked and marked domestically.

The amended IML also requires the US government to compile a list of all people with sex convictions from every country that is part of the US visa-waiver program. The bill does not specify what is to be done with this list, but it does authorize the US government to share the list of 'covered' US citizens with authorities in these countries.

The definitions of 'covered' in this bill are rather vague given the different legal systems in so many countries. There are several definitions of 'covered' in the IML itself. Such vagueness almost certainly will lead to mistakes which could be irreversible given the worldwide distribution of the new IML list. More than six dozen countries, for example, still outlaw same-sex activity. Many more have done in the past. Which means people around the world with such convictions may well be added to the list that the US government will probably use to deny entry and share with other countries for the same purpose.

That likelihood is worrisome for the victims of human trafficking this bill is meant to help. Some of them also probably have criminal convictions. Section 201 treats them no differently from the human traffickers who have exploited them.

There are multiple ironies worth noting. Perhaps the largest group of people with convictions for historic crimes that are no longer crimes in many US states and in many visa-free travel countries are members of the LGBTQ+ community. But at nearly the exact moment this bill was passed in committee, the US House of Representatives passed the Global RESPECT Act, which imposes sanctions on countries that do not respect LGBTQ+ rights. The floor manager of that Act was Congressman Gregory Meeks, the same person who chairs the Committee on Foreign Affairs which approved the Douglass bill. The RESPECT Act was sponsored by David Cicilline, also a member of the same committee.

Another irony has to do with the bill's being named for Frederick Douglass. If the IML had been in force during his lifetime, it most likely would have been applied to him. That is because he married a white woman who [at 45, was 21 years younger than he was]. This was a 'crime against nature' in many states, in other words, a sex offense. He was in any event still denied the use of a passport because the US government did not consider him to possess the full rights of a citizen.

Yet another irony is that this bill was passed by a Democratic-led committee. It will probably go on to be passed by a Democratic congress, and signed by a Democratic president. Yet the bill's lead sponsor was Republican Congressman Chris Smith, who has led a 40-year-long inquisition against various groups, including LGBTQ+ persons and the pro-choice movement. He has not always succeeded. He has succeeded in this instance because his bill does not directly name any of his usual targets (apart from people convicted of sex offenses), but there can be little doubt that many of them and their families will be entrapped by its vague provisions. 

Finally, it is less ironic than perverse that Congressman Smith was just given an award by a group of Orthodox Jews for his service as co-chair of the US Congress's task force for combating anti-semitism; chaired for many years its Helsinki Commission for human rights; and today co-chairs the Tom Lantos human rights commission, named for a Holocaust survivor and famous champion of human rights around the world. Smith more than most people should be aware that the IML and registries in general bear a strong resemblance to historic campaigns of collective punishment, shaming, and dehumanization. Alas, because of the IML, the United States has joined Nazi Germany in making it official policy to single out a whole subset of its population for special marks on their passports. 

No major US or international human rights organization, apart from the small handful working for registrants, spoke out publicly against this section of the bill. No major religious figure or group questioned its ethics. No politician condemned the obvious overreach, the vagueness, or the many likely unintended consequences of Section 201. So far as most people can tell, the US State Department and other parts of the US Government that will now be tasked with targeting US citizens and their families overseas, and with composing a list of foreigners to be updated twice per year, have not expressed any serious reservations about the legality or the rationale for these provisions. 

The bill will probably now head to a vote in the full House and then in the Senate. As with the IML, that is likely to happen first by suspension of the rules and then by unanimous consent. The only difference this time may be with the president, who will probably celebrate the legislation visibly, unlike Barack Obama, who signed the IML quietly during a Congressional recess when he could have used his pocket veto to stop what will probably continue to be a long-term process of expanding the law's provisions and the minority groups it targets.

It may be tempting to set this aside if you think it will not directly affect you. Without loud opposition, though, Congressmen like Chris Smith will be emboldened to continue trampling human rights. We must push back every time laws are proposed that will increase the reach of the registry.

How to do that?

Call, email, or send letters to your Senators and Representatives and ask them to vote against this bill. Identify your Congressional members and find their contact information by entering your address here. Ask your family and friends to do the same. 

Spread the word. Contact local, national, and international organizations that have a stake in this--registry reform, LGBTQ+ rights, criminal justice reform, racial and ethnic justice, human rights--and ask them to oppose the bill. Give them a link to this blog post so they can read about the bill. 

Read my friend's letter again to see if you can identify an organization that ought to be aware. If you do not draw their attention to this bill, they may not have the opportunity to oppose it.

If this bill is passed, the United States government will put U.S. citizens and U.S. nationals at risk in foreign countries. Don't be fooled by the noble-sounding language about stopping human trafficking. People who were at one time convicted of sex offenses are not trafficking humans for sex or for labor. 

A Venn diagram of human traffickers and people convicted of sex offenses would look about the same as a Venn diagram of human traffickers and people employed by Congress. 

beware reformers who want to keep the registry

Florida Action Committee recently published an execrable piece on its website. The writers, identified as members of FAC, titled their piece "Both Sides Now," though they present only one side. 

The two writers say they have found "several possible points of agreement with those who advocate for a [sex offense] registry." They make the weakest case possible against a registry by pointing out that most registrants do not repeat their offenses. From there, they launch a full-throated argument in favor a registry. So much for "both sides."

They say that "children need to be protected," that "there must be laws against the sexual abuse of children," that "society must end its exploitation of children..." Anodyne statements that do nothing to mitigate their intent to keep someone else--and someone else's family--on the registry. 

"We need to particularly protect [children] from violent offenders and repeat offenders."
This implies that repeat and violent offenders need to stay on the registry. We don't define violence; Legislators do. The same legislative bodies that have defined terms so that over a million people belong on the registry today will decide who belongs there in the future. 

"If we return to the registry as it was first conceived—a private registry used only by law enforcement  to track the most dangerous offenders—the likely harm to registrants and their families would be minimized." 
What would prevent this imaginary returned-to-virginity registry from morphing once again into what we have today? Absolutely nothing. The virginal registry these writers yearn for would still put registrants at risk for arrest for crimes that aren't crimes for anyone other than registrants, and all while providing no improvement of the public safety.

"We affirm that leaders should try to be concerned about all children, including the children of people on the registry." 
Rich irony, coming from writers who argue for the existence of the registry.

"We affirm the typical person on the registry."
Again, sorting out Us from Them! Who will sort the typical from the atypical? The violent from the non-violent? No matter who sorts, they will be deciding that some families deserve whatever difficulty and torment the registry brings them. 

We must resist the temptation to make laws on the basis of rare but extreme cases. 
The whole article is built on the basis of those extreme cases. The writers try to suck up to their dreamboat--the current registry regime--by reminding the dreamboat that there are worse people out there. 

Make no mistake: the two writers are arguing to keep the registry in place. They are perfectly willing to have you on the registry as long as the people they approve of are not listed, and even though they would leave the registry in the hands of the entities that keep making registry laws harsher.

Abolish the registry, not because people convicted of sex offenses are special, but because registries violate the human right to be left alone by the state, no matter which crime--DUI, arson, sex offense, gun crime--requires them to register.

The registry is not a problem because it lists the wrong people; the registry causes problems because it lists people.

dangerous amendment to International Megan's Law

Tucked away in the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2021 (H.R. 5150), you will find an amendment to International Megan's Law (IML). The 2016 IML set the requirement that some passport-holders on the sex offense registry must have an indicator in their passport showing that they are registrants and that they offended against a minor.  

Current IML makes sure that the United States does what it can to throw unfounded suspicion upon its own citizens--suspicion of future crimes--as they travel to countries where that suspicion could put them in harm's way. This amendment will make sure that Americans who live in other countries where they are not required to register will be treated with that same suspicion; it will also collect names of citizens of other countries who have been convicted of sex offenses against minors.

Like the registry itself, which treats registrants as if they are ticking time bombs destined to commit more sex crimes, IML treats all registrants convicted of offenses against minors as if they are using travel to find more victims. That imagined danger puts Americans traveling abroad at risk of discrimination and violence when their passport makes known their history of a sex offense, and put them at risk in a country where they may not have legal protections they would have in the United States.

The Angel Watch Center (the Child Exploitation Investigations Unit of U.S. Immigrations and Customs Enforcement) is the entity that decides which people require the "sex offender" designation in their passport. It is also the entity that notifies other countries that a registrant is traveling to their country.

Under the innocuous label of "Information Sharing," the amendment will collect names of "convicted and registered sex offenders" from countries in the visa waiver program. In turn, the Angel Watch Center will share information with those countries "as appropriate" about citizens or nationals who are covered under IML. An American citizen or national living in another country where he is not on a sex offender registry, would be required to have a passport identifying him as a "sex offender."

(E) BI-ANNUAL INFORMATION SHARING.—Not later than 1 year after the date of the enactment of this Act, and each October 1 and April 1 thereafter, the Center shall obtain from each country participating in the visa waiver program a list of covered sex offenders who are citizens or nationals of such countries. Such information shall be obtained to the extent feasible with respect to both convicted and registered sex offenders. The Center may reciprocate, as appropriate, with such information relating to covered sex offenders who are citizens or nationals of the United States.

Notice that "convicted and registered sex offenders" could include people who would no longer need to register if they lived in the U.S. Does "convicted and registered" mean (a) people who have been convicted and then registered? Or does it mean (b) people who were convicted and people who are registered? If (b) is correct, someone who was convicted and has completed his registry duration could be included.

There is no further delineation of the responsibilities of Angel Watch for the information it would collect from other countries. How will the database of people convicted and registered for sexual offenses be used? What further requirements could be imposed on this large group of people, people from all countries in the visa waiver program? 

This amendment to IML would expand the requirement for a "sex offender" designation even to those U.S. citizens and U.S. nationals living lawfully in foreign countries. A person not required to register in their country of residence would be required to have a passport with the "sex offender" indicator if that person would have to register if that person returned to live in the United States.

Section 4(f)(2) of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (34 U.S.C. 21503(f)) is amended by inserting “or would have to register if the individual returned to that jurisdiction after departing it to reside outside the United States,” after “jurisdiction”. ...

A person may not be issued or reissued a passport without a unique identifier solely because the person has moved or otherwise resides outside the United States.

It is beyond bizarre to add passport restrictions through a bill named after Frederick Douglass a former slave and a national leader in the abolitionist movement. Frederick Douglass was denied a passport because, as a Black American, he was not considered an American citizen. Douglass fought for citizenship and all the rights thereof. This amendment would do the reverse by reducing the rights held by the people affected. Douglass wanted to travel with an American passport; IML would let people travel with a passport but make it dangerous to do so.

People who understand that registries must be abolished can take heart from Frederick Douglass:

Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.

We must stop submitting quietly to the sex offense registry and its burdensome requirements. We must stop following leaders who convince us they can make the registry a little more comfortable for us by making it law enforcement only or by reducing the numbers of people listed or by letting us live a bit closer to schools. 

Frederick Douglass fought for the abolition of slavery and had something to say about those who tried to make slavery more comfortable:

I have observed this in my experience of slavery,—that whenever my condition was improved, instead of its increasing my contentment, it only increased my desire to be free, and set me to thinking of plans to gain my freedom. I have found that, to make a contented slave, it is necessary to make a thoughtless one. It is necessary to darken his moral and mental vision, and, as far as possible, to annihilate the power of reason. He must be able to detect no inconsistencies in slavery; he must be made to feel that slavery is right; and he can be brought to that only when he ceased to be a man.

It is not the conditions of the registry that are wrong; it is the registry itself and the idea that people can be listed because of lurid imaginings of what they might do in the future. When we talk to lawmakers, we must make it clear that the registry is unjust and it must be abolished before their own grandchildren are listed on it.

New Jersey Representative Christopher H. Smith is the sponsor of this amendment just as he was the prime sponsor for International Megan's Law. Contact information for Smith is at the link if you want to discuss this amendment with him or his staff.

Contact your own Representative in Washington D.C. to register your opposition to this amendment.

For reference:
Current International Megan's Law

Apple wants to protect the children...but is that what would happen?

A couple of months ago, Apple announced Expanded Protections for Children*:

Apple is introducing new child safety features in three areas, developed in collaboration with child safety experts. First, new communication tools will enable parents to play a more informed role in helping their children navigate communication online. The Messages app will use on-device machine learning to warn about sensitive content, while keeping private communications unreadable by Apple.

Next, iOS and iPadOS will use new applications of cryptography to help limit the spread of CSAM [Child Sexual Abuse Material] online, while designing for user privacy. CSAM detection will help Apple provide valuable information to law enforcement on collections of CSAM in iCloud Photos.

Finally, updates to Siri and Search provide parents and children expanded information and help if they encounter unsafe situations. Siri and Search will also intervene when users try to search for CSAM-related topics.

These features are coming later this year in updates to iOS 15, iPadOS 15, watchOS 8, and macOS Monterey. [Emphasis added.]

A footnote indicates the the new features will be available in the U.S. 

The protective feature that interests me most is the one that intends to limit the spread of CSAM. You can read many different interpretations of the technical ins and outs but the question I want to think about is not technical: Will it protect children?

People eager to punish those who look at illegal images will be happy. Those with collections above an unspecified "threshold" amount should worry that they will be discovered.

Collections? Yes. Apple cryptography will be looking at images on Apple devices, deciding if they include CSAM, and then deciding if the collection of images includes enough to report to the National Center for Missing and Exploited Children (NCMEC). How many is enough? Your guess is as good as mine because Apple does not say.

To determine if an image is CSAM, Apple will see if any of the images on the device match images already in the NCMEC database of images. 

Let me restate that. Apple will identify images that have already been identified by NCMEC as CSAM. Those images might be of children who were abused at the time the image was created. This offers no protection for kids who are currently being abused. If an abuser is recording the abuse and uploading it to the internet for other viewers, those images will not be identified as CSAM because new images are not in the NCMEC database yet.

If I am able to figure out that new images are not going to be discovered and reported (yet), so can people who want to distribute child porn. Where will those new images come from? Is Apple inadvertently encouraging the production of new images? 

The NCMEC database makes possible arrests of people who look at those images, not of the people who are abusing children and recording the abuse. The distinction is important if you care about protecting children who are being abused. 

Unfortunately for those children, the focus is on arresting the viewers and not the abusers. Arresting, convicting, and punishing people who look at existing images does not protect children who want the abuse to stop.

If you want to be picky about it, the broad label of "CSAM" includes anything that is considered child pornography and many, if not most, of those images are not of children being abused. A revealing image uploaded by a minor can be distributed to viewers beyond the intended audience. Once that image is noticed by NCMEC, it will forever be tagged as CSAM, even though there was no sexual abuse involved. 

Back to the question: How does this protect children?

Since sexting is done with cell phones and millions of kids use them, how many sexting images of underage kids will be sent to NCMEC by mandatory reporters? How many arrests of teens will result? Are those kids protected? Their actions may have been foolish but should they be criminal? 

If we can agree that dumping kids into the criminal justice system for sexting is a bad idea, why is it a good idea to arrest adults for looking at those images? How does that protect children who are being abused?

When someone is arrested for possessing, receiving, or distributing child porn, the images remain available on the internet just as they were before the arrest. How does that protect children who are in the images of actual sexual abuse? Sending the arrested person to prison for looking at illegal images gives law enforcement something to boast about and something for people to feel good about (bad guy goes to prison!) but it protects no one. The arrest and incarceration of viewers have no effect on the child in the image.

The biggest thing to remember is that new images, perhaps of current, on-going abuse, will not be found via the Apple cryptography exercise. Kids who are being abused get nothing from the theater of child porn arrests. Do not let this news from Apple fool you into thinking that children are protected by their plans to scan devices for CSAM.

People are horrified by the suggestion, but what would happen if it were legal to view child porn? More people would see those images. Many would condemn the idea for that reason alone. The idea that someone could look at the images is so abhorrent that people stop thinking at that point. They insist no one should be able to see these images--but for a child who has been recorded during sexual abuse, a larger audience could be the key to exposing the abuser. As it is now, it would be nearly impossible for a person to come forward to identify children or abusers in the images, because that report would include an admission of committing the crime of looking at child porn. What is seen in child porn stays in child porn.

Parents who discover that pornographic images of their children have been uploaded to the internet have no way to track down those images, no way to ask for the images to be removed from web servers. Simply searching for those images could result in arrest and incarceration. 

Apple may have good intentions of stopping people from looking at child porn but we must recognize that arresting a viewer is not the same as protecting children. Children are not protected when it is illegal to see images that prove abuse.

Protecting children from sexual abuse is imperative. Arresting people who look at child porn is not protection from abusers. It is sound and fury, signifying nothing in the battle against child sexual abuse.

When we hear that an individual, a company, an organization wants to protect the children, we must stop to examine their actions and the effect of those actions on children who need protection. Making images illegal when those very images could prove abuse does not protect the children. Driving images of child abuse further underground makes new images more valuable and that does not protect the children.

Apple might mean well but they have bought into the idea that punishing people for looking at a certain category of images will protect children. Like so many others, they are promoting the idea that looking at images of abuse is worse than the abuse itself.

Let's keep our priorities straight.

* A note has been added to this article: 

Update as of September 3, 2021: Previously we announced plans for features intended to help protect children from predators who use communication tools to recruit and exploit them and to help limit the spread of Child Sexual Abuse Material. Based on feedback from customers, advocacy groups, researchers, and others, we have decided to take additional time over the coming months to collect input and make improvements before releasing these critically important child safety features.

pro-registry forces have a secret weapon

When I first started using the hashtag abolishtheregistry on Twitter, more than one person sent messages telling me to stop doing that. Asking to end the registry altogether would damage the cause, I was told. The incremental approach was the only way to go, they said.

It turns out that the pro-registry forces have a secret weapon and the registry community itself is that secret weapon. 

We know the registry is a brutal attack on the freedom of law-abiding people and yet registry reformers don't ask to abolish the registry. They hope for incremental change. They try to find changes that a legislator might be able to slide unnoticed and unchallenged past his or her colleagues. They wait for the triumph of the ideal lawsuit.

The incremental approach hasn't brought us much in the way of increments that improve the lives of registrants. Legislatures, though, continue their own incremental approach of adding new crimes to the list of registrable offenses. 

The registry has become so punitive that registrants would do just about anything to get off the list. Legislators have a lot of people who come to them with reasons why they don't belong on the registry. 

If we could keep just the dangerous people on the registry, that would be so much better.

True, it would be better...but not for the people left on the registry. For them, nothing has changed except that the registry reformers have now pointed them out as the dangerous ones. It isn't as if an evidence-based risk assessment decides who the dangerous people are; legislators decide that your crime belongs on the list of dangerous or violent offenders. If your crime isn't on the list now, stick around because it could easily be added.

It is worth looking at HR 6691, passed by the House of Representatives, though not by the Senate, in 2018. The bill would reclassify some crimes currently considered non-violent as violent. People who think their crime is obviously non-violent need to consider how easily legislators can move that crime to the "violent" column. See also the California registry changes, below. 

If you are in a state that does rely on risk assessments, how is that working? Are those assessments used to remove people from the registry...or are they used to keep people on the registry?

Secret weapon: Arguing to keep the really dangerous people on the registry is arguing for the registry. 

Look at California, where registry reform has been much ballyhooed. In California, every registrant used to be on the list for life. Now registrants are assigned to tiers...and those tier assignments cannot be understood. There is no way to look at the decision to put people convicted of child pornography crimes on the registry for life--on tier 3 with the "high risk" offenders--without seeing that the decision was completely arbitrary. The winning reform for some came at the expense of other registrants. 

Tier 1 and 2 registrants will need to petition for removal from the registry, so even the "winners" of the California reform may not win in the end. The reformers were able to move California from all-lifetime registration to a tiered system by sacrificing some registrants to tier 3. 

We saw something similar in Florida where criminal justice reformers were able to return the right to vote to 1.4 million people with felony records. How did they pull that off? They allowed people convicted of sex crimes or murder to be excluded.

Secret weapon: Arguing for a tiered registry is arguing for the registry. 

If we could make the registry law-enforcement only, that would mean I could get a job and an apartment more easily.

Yes, that is true but law enforcement would still be at the door of your home for compliance checks and still arrest you for violating laws that apply to no one except registrants. Who else gets arrested for living too near a school? Who else gets arrested for visiting a city park? Or for not notifying the registry office of a new address or a change in vehicle information? Making the registry visible only to law enforcement does nothing to ease the years, decades, or lifetime at risk of arrest faced by registrants, the risk of misunderstanding a law, of not knowing about a city ordinance or a law in another jurisdiction and paying for it with fines or prison time.

Secret weapon: Arguing for a law-enforcement-only registry is arguing for the registry.

One of these days, we will have a lawsuit that will bring the registry crashing down!

Maybe. Legal teams work long and hard to bring lasting change. Attacking the registry with lawsuits has brought some success in eliminating residence restrictions but it hasn't ended the registry anywhere. Not even in states where the registry has been found unconstitutional. Michigan still has a registry. Colorado still has a registry.

Secret weapon: Waiting for the ideal lawsuit to save us is surrendering to the registry.

Demanding to abolish the registry may not work, either!

All too true. We might end up with incremental changes. We would still cherish our hope for a magical lawsuit. The difference is that we would be asking for what is right. We would be asking for change that would improve the life of every registrant. We would make our end goal known. We would put our opponents on notice.

We would stop acting as the secret weapon for our opponents.

Saying it aloud lets others begin to consider the possibility. Saying it aloud makes it worth thinking about. Asking to abolish the registry could begin a conversation about why we have a registry at all.

Martin Luther King did not work toward incremental improvements to life under Jim Crow; he demanded an end to Jim Crow laws. We need to be just as bold and relentless.

The registrant community needs to be seen and heard in larger reform efforts. We must stop talking to each other about how bad the registry is and talk to people outside our little community. We must recognize that the sex offender registry is only one part of a terribly flawed criminal legal system. We are not the only people suffering.

We will not abolish the registry until our fight becomes part of the larger fight for criminal justice reform. To do that, we need to be clear about our goal and clear about why that is our goal.

Abolish the registry because it puts registrant families at risk of harassment and vigilante violence.
Abolish the registry because one punishment for a crime is more than enough.
Abolish the registry because it results in unemployment and homelessness.
Abolish the registry because it doesn't protect the community.
Abolish the registry because it encourages irrational fear.
Abolish the registry because it is an attack on liberty.

Abolish the registry.

If we don't say it, who will?

killer of registrant pleads no contest to second degree murder

James Fairbanks, who crowed loud and long that he had killed Mattieo Condoluci in May 2020 because Condoluci was on the sex offense registry, has pleaded no contest to second degree murder.

Todd Cooper writes in the Omaha World-Herald:

...Fairbanks and his attorney, Steve Lefler, contemplated a self-defense claim up until minutes before the 44-year-old Omaha man pleaded no contest Thursday to second-degree murder and a gun charge. They said Condoluci had charged the armed Fairbanks after he showed up at Condoluci’s house to warn him to stay away from kids.

Prosecutor Brenda Beadle, the chief deputy Douglas County attorney, called the self-defense assertion “comical.” She noted that Condoluci had no idea that a gunman would come to his door the night of May 14 and had not had any prior contact nor conflict with Fairbanks. Beadle and fellow prosecutor Ryan Lindberg suggested that Fairbanks was hunting sex offenders with the rifle he had bought earlier that year.

Before the killing, prosecutors say, Fairbanks:

Googled whether Nebraska’s death row offers a commissary. He researched stories of other men who had killed sex offenders and what their penalties were.

Sought to find out whether a gunshot alert system — Shotspotter — could detect the sounds of shots from inside a home. And he researched legal definitions of second-degree murder vs. self-defense.

Mapped out a path to the home of another sex offender.

The only thing "comical" about this case, is the idea that Fairbanks was defending himself. He announced that he had intended to kill Condoluci in an email to media outlets. You can read the details of the case in my May 19, 2020 blog post, Omaha registrant murdered.

In jailhouse interviews with the press during the spring of 2020, probably after conversations with his defense attorney, Fairbanks tried to turn his story into one of self defense. 

Cooper continues:

Beadle said the killing was planned. She said Omaha police detectives found evidence that Fairbanks had searched for another sex offender, even mapping out a route to his house, before homing in on Condoluci.

Beadle acknowledged that Condoluci, with his prior convictions and his history as an enforcer in motorcycle gangs, was “not the most sympathetic victim.”

“But (Fairbanks) doesn’t get to be the judge, jury and executioner,” she said. “There are a lot of criminals in the world. You don’t get to confront them and then try to claim self-defense. Especially when you do all this research on someone a week before you murder them.”

Fairbanks was able to avoid a possible death penalty by pleading to second degree murder. 

Beadle said the plea bargain eliminates any appeals — and any risk that a jury or juror would vote to acquit Fairbanks. It also gives an ample range of possible prison time — 21 years to life — when the judge sentences Fairbanks in July, Beadle said. 

Shuffling out of the courtroom in leg irons, Fairbanks told a World-Herald reporter that he regrets “what he put his family through.” Fairbanks has two young sons, and had worked as a paraprofessional in the Omaha Public Schools.

“I have many regrets,” he said.

Does he regret killing Condoluci?

“I do,” he said.

Asked if it was because he had abandoned his own children or because he killed a man, Fairbanks said, “I’ll have to think about it.”

Nebraska legislators carry a large share of the blame for Condoluci's murder because the Legislature is the body that put the registry in place. In 2009, they voted to make names, faces, and addresses easily available to the public--easily available to someone like Fairbanks who wants to hunt for registrants.

The killing of Mattieo Condoluci made it abundantly clear that registrants have been telling the truth: the registry puts registrants and their families at risk.

Does the Legislature regret making it easy for Fairbanks to target his victim? 

Given their lack of action in the 2021 legislative session to mitigate the effects of the registry, the answer seems to be clear.

As clear as Fairbanks' lack of remorse.

drumming up fear in Nebraska

A story from KHGI in Nebraska shows what happens when we put people on a registry. People begin to believe that registrants are likely to do the unthinkable.

GENOA, Neb. — Twin River Public Schools was briefly placed in “lock out” Tuesday while the Nance County Sheriff’s Office measured the distance between the residence of a recently-registered sex offender and the school.

The school was locked out to protect kids from...tape measures?

In a Facebook post, the sheriff’s office said 27-year-old George Kelly registered at the Nebraska State Patrol office in Norfolk and listed a Genoa address. NSP explained to Kelly that he could not live within 500 feet of a school or childcare facility per Nebraska statute.

The Nebraska statute does not say that. Instead, it puts a limit on the residence restrictions cities, towns, and villages can apply. The restrictions can be no more than 500 feet from a school or child care facility and can apply only to those who fit the statutory definition of a sexual predator. Each city has to have its own ordinance if it wants residence restrictions for people on the registry.

The Genoa city ordinances are not available online.

In comments on the Nance County Sheriff's Office Facebook post about this story, the city clerk said it was ordinance 3-502. When asked, the librarian at the Genoa Public Library provided the same ordinance number but said, "...we were not able to get a physical copy of the ordinance..." 

Maybe there is an ordinance, maybe there isn't.

If the ordinances are not available online and if a physical copy cannot be easily obtained even by the city librarian and if the Nebraska State Patrol provides incorrect information, how can George Kelly be held responsible for not knowing?

Even when there is an ordinance, its validity may not be clear. Nebraska changed from a risk-based registry in 2010 to one based on which crime was committed. If a city ordinance is still based on those pre-2010 risk levels, the ordinance may be void. 

Back to the KHGI story and those terrifying tape measures:

Due to the proximity of the residence to the school, it was agreed upon to put the school in a "lock out" status, which kept students inside the building and kept outside visitors out of the building.

The Sheriff's Department measured the distance between the two properties and discovered that the distance was 237 feet, well within the 500 feet limit. Kelly agreed to immediately leave the property and register in another county. Kelly left, and the school returned to normal status.

There was no need to put the school in "lock out" and yet the decision was made to do that. The very fact that there is a registry encourages the idea that registrants are dangerous. Why would those people have to register if they are not dangerous??

Why, indeed.

Paying attention to news stories about arrests for sex crimes is educational. There are far, far more news stories about first-time offenders being arrested than about people on the registry being arrested.

Locking the kids inside with other teenagers puts them in arguably more danger of sexual assault than letting them outside where a man who just completed his prison sentence for his crimes is waiting to see if he is allowed to be there. About a third of sex offenses against minors are committed by minors. 

Instead, officials agreed to pretend that there was a danger outside, and the news reporter went along with that pretense.

Perpetuating the belief that registrants are dangerous is not inconsequential. Ask the family whose house is vandalized because their address is on the registry. Ask any number of registrants who have been attacked because their addresses are on the registry. If only we could ask those who have been murdered--including Nebraska's own Mattieo Condoluci--because their addresses were on the registry.

The next arrest for a sex offense in your community is most likely to be of someone not on the registry. Drumming up fear of registrants will not change that. 

Neither will making them homeless.

ATSA is sympathetic but recommends more of the same for registrants

The Association for the Treatment of Sexual Abusers (ATSA) recently published recommendations that registry laws be based on current research. The registry community is rightly excited to hear that because we know that the data are on our side: the registry makes no one safer. We know that the incidence of sexual offenses has neither stopped nor slowed since the introduction of publishing registries online.

Under Conclusions and Recommendations, ATSA tells us what we already know:

The research to date on SORN has not identified significant reductions in the incidence of sexual abuse or sexual offense recidivism as a result of this policy. This fact leads to the conclusion that SORN, as currently implemented within the United States, does not achieve the intended goals of preventing sexual abuse, protecting society, or effectively managing the risk of individuals convicted of sexual crimes. Current practices additionally have numerous unintended consequences which actually potentially increase, rather than decrease, risk factors for individuals required to register. If the goals of these laws are the prevention of sexual abuse and reducing recidivism risk, meaningful legislative reforms will be required.

If ATSA is paying attention to current research, that has to be good. If only they had stopped there but ATSA continues:

Based upon current knowledge and research, ATSA offers the following recommendations for evidence-based registration reforms:

• Discontinue one-size-fits all approaches for the registration and notification of individuals convicted of sexual crimes;

• Individualize registration and notification requirements based upon empirically validated risk assessment tools and similar methods;

They are correct that one size fits all is not a good approach. Swapping that practice for individual assessments, though, is going to open the door to peddlers of assessment tools and to law enforcement adopting a single assessment tool to evaluate all registrants. Assessments will be used to put people on the registry, not to release them. Am I jumping to conclusions here? Yes, but prove me wrong. In states that use individual assessments, how many people are released from the registry based on those assessments? 

• Develop avenues and criteria for relief from registration which incorporates the desistance literature and recognizes the importance of treatment and supervision interventions for reducing recidivism risk, facilitating desistance and strengthening protective factors;

ATSA notes that housing, employment, and relationships all help with desistance. So why is ATSA not recommending that sex offense registries--the reason registrants have trouble finding housing, employment and building relationships--be ended altogether?

• Limit public community notification practices to the highest risk registrants, decrease broad-based dissemination of registrant information and/or re-establish law enforcement only registration practices coupled with allowing public inquiry about specific individuals;

How do we identify the highest risk registrants? The study used in the ATSA document used the Static 99R to pick them out. This is the same Static 99R that has come under heavy criticism for inadequacies in predicting future risk of an individual and for scoring that doesn't reflect how a person has changed, among other concerns. No matter which assessment tool is used, there is a risk in getting it wrong. When getting it wrong affects a person's liberty interest--will he be stuck on the registry for 15 years or for life?--an inadequate assessment tool cannot be trusted. 

• Remove adjunct policies, such as residence restrictions, from SORN laws as they do not work and are one of the primary drivers for legal challenges. Adjunct policies also undermine protective factors and create unnecessary barriers for community reintegration;

If only the rest of the recommendations were so clearly spoken, right? But if residence restrictions create unnecessary barriers for community reintegration, what does ATSA think the registry itself does? Is there such a thing as necessary barriers to reentry?

• Recognize that a national one-size-fits all approach to SORN laws does not work within the U.S. and allow states to make adjustments to their registries based on individual needs without incurring any financial penalty;

This is a solid recommendation. 

• Utilize registration as part of a larger management scheme for adults convicted of sexual crimes, with greater collaboration and focus on rehabilitative and reintegration efforts;

And we're back to looking at this group of people--those convicted of sex crimes--as people who need management. The group with a very low rate of re-offense is not a group that needs management.

• Enhance SORN information for law enforcement purposes, including steps to ensure the accuracy of the information and strengthening tracking of registrants moving between jurisdictions; and 

Why? Does research show that registrants who move between jurisdictions commit more sex offenses? Ensuring the accuracy of information on a registry will not make it better. If ensuring accuracy means more people are arrested for registry violations, that is not an improvement.

• Strengthen partnerships between law enforcement and sexual offense specific management professionals, including treatment professionals.

Treatment professionals who have strong partnerships with law enforcement are likely to find themselves distrusted by the very group they hope to...to what? What does ATSA hope for? 

Does it want to keep registrants coming back for therapy? Good therapy would be the answer for that, not keeping registrants subject to a regime that mandates therapy provided by therapists (ATSA members?) answerable to probation or parole instead of to the registrants themselves. 

Does ATSA want to keep registrants under the thumb of law enforcement even though re-offense rates are very low? The registry keeps registrants vulnerable to arrest for violating laws that apply only to those on the registry. Does ATSA hope that more registrants will return to prison for forgetting to notify law enforcement that, for example, they bought or sold a car?

Does it want to keep that group under the thumb of law enforcement even though re-offense rates are very low and were very low even before we had registries?

Remember that ATSA said, 

The research to date on SORN has not identified significant reductions in the incidence of sexual abuse or sexual offense recidivism as a result of this policy. This fact leads to the conclusion that SORN, as currently implemented within the United States, does not achieve the intended goals of preventing sexual abuse, protecting society, or effectively managing the risk of individuals convicted of sexual crimes. Current practices additionally have numerous unintended consequences which actually potentially increase, rather than decrease, risk factors for individuals required to register. If the goals of these laws are the prevention of sexual abuse and reducing recidivism risk, meaningful legislative reforms will be required. 

...and yet ATSA wants to keep the registry in place. Why?

ATSA needs courage to do what it recommends: Heed the current research. Keeping the registry in place is not meaningful legislative reform.

Abolish the registry.

In 2013, I wrote about protecting the integrity of psychiatry.

suggestions for comments on the SORNA rule changes

Go here to comment on the changes to the SORNA rules proposed by Attorney General Barr. Comments can be submitted until midnight ET, October 13, 2020. See my earlier analysis of the changes here.

When composing your comments, address the proposed changes specifically. Consider the suggestions below.

1. States vs. Federal Government
The changes will be used to push states into full compliance with SORNA. In our comments, we can respond to the suggestion to bypass state legislatures in the push to increase federal involvement in registry violations. Federal bureaucrats, accountable to no one, should not be able to foist changes on state laws, especially when the new regulations create new ways to deprive people of their liberty.

2. Public Safety
Because the proposal pretends to be concerned about public safety, respond to that. What do these changes have to do with public safety? If the Attorney General used evidence-based studies about the behavior of registrants when writing the new rules, the studies are not mentioned in 93-page document. 

3. Additional Reporting Requirements
The changes would add to the list of items SORNA requires to be reported within three days (remote communication identifiers, temporary lodging--being away from your registered home address for more than seven days, vehicle sale/purchase), so we can respond to that. Remember that for many, if not most, registrants, traveling to the registry office requires taking time off work. If current reporting requirements cause problems for registrants, additional requirements will not help. If current reporting requirements have no effect on public safety and no effect on the incidence of sex crimes, additional requirements will not help.

72.7(e) Reporting of changes in information relating to remote communication identifiers, temporary lodging, and vehicles. A sex offender must report within three business days to his residence jurisdiction (by whatever means the jurisdiction allows) any change in remote communication identifier information, as described in § 72.6(b), temporary lodging information, as described in § 72.6(c)(2), and any change in vehicle information, as described in § 72.6(f).

Reporting those additional items--in any time frame--have nothing to do with public safety and everything to do with controlling a group of people who lead law-abiding lives. 

4. Reasons behind Changing the Rules
Target the reasons for the changes. The reasons come down to because sex offenders might do something (use telephones to lure victims, for example), not because they have evidence that this is something that happens with any frequency. 

The rule governing International Megan's Law uses despicable reasoning like this to justify the DOJ reporting a person's international travel plans to INTERPOL and to other foreign law enforcement agencies: 

... for a sex offender disposed to reoffend, it may be attractive to travel to foreign countries where law enforcement is weaker (or perceived to be weaker), where sexually trafficked children or other vulnerable victims may be more readily available

It is unacceptable for the US government to put US citizens in danger by identifying them as suspect individuals to foreign governments when wild imagination is the only reason to suspect an intended crime. Comment on the awfulness of IML if you'd like but a more effective comment will focus on the specious reasoning throughout the proposed rules change document.

Imagining that people on the registry are plotting to commit more sex crimes does not make it true.

The document is weighted down with paragraph after paragraph explaining why the AG has the authority to impose these rules. Those explanations can be summed up as "we are doing this because we can." Because this court decision said it isn't punishment, the government can do what it wants. Because another court decision said it isn't bad to require email addresses, the government can do what it wants. There is nothing in the proposed rule document that refers to research on the effectiveness of registration. No research was used in building that document other than finding court cases that say the government can do this. 

Watching this process underlines how easily the government can devise new ways to put our liberty at risk. Remember that the next time you think we should put the government in charge of something.

More analysis of the proposed changes:

• Alliance for Constitutional Sex Offense Laws
• Florida Action Committee
• Pennsylvania Association for Rational Sexual Offense Laws

changes proposed for SORNA rules

On Twitter, @CrimeADay estimates that it will take hundreds of years to tweet one federal crime each day. That estimate does not include any additional crimes that are being added and will continue to be added to the federal code.

Today, @CrimeADay has tweeted one federal crime every day for five years. In 1790, it would have taken under a month to count them all at that rate. It's going to take just a little bit longer today, but I'm getting there: pic.twitter.com/rc9i4hxxYH

— A Crime a Day (@CrimeADay) July 18, 2019

Federal government bureaucracies are the powerful but quiet engine behind federal laws. Those bureaucracies can--and do--create laws without going through the arduous legislative process in which our elected Senators and Congressmen serve as our voice. We have no voice in the bureaucratic process except for an opportunity to comment on proposed changes.

You can comment on the proposed SORNA rules changes until midnight ET October 13, 2020. Instructions on that webpage (starting here) provide information about the comment process. It is important to read those instructions before leaving a comment. 

At the time this blogpost was written, only 370 comments had been submitted. Given the nearly million people on sex offense registries across the country and the serious effect these federal rules may have on their states, more comments are necessary. To see the proposed rules as well as current laws, rules and guidelines, the links to resources at the bottom of this post may be helpful.

Registry laws vary from state to state and none of the state laws match SORNA exactly. Some of the registry laws in your state may be better or worse than what SORNA laid out for us but your state laws are still the laws that you need to follow. 

The proposed changes raise questions about why the Attorney General thought it necessary to expand federal rules expressed in 400 words to a much more detailed 3000 words, especially since those federal rules don't apply in the states. 

What problem is the AG trying to solve? Have registrants across the country been committing the lion's share of sex offenses? No. The vast majority of sex offenses are still, as always, committed by people not on the registry. The Attorney General and the Department of Justice know this fact as well as we do, even if they prefer to ignore it and drum up fear of registrants.

To drum up unreasoning fear, proposed changes include crazy talk based on the idea that registrants are some kind of otherworldly monsters:

...because sex offenders may, for example, provide false date of birth information in seeking employment that would provide access to children or other potential victims. (link)

...because sex offenders may, for example, attempt to use false Social Security numbers in seeking employment that would provide access to children or other potential victims. (link)

...addressing the potential use of telephonic communication by sex offenders in efforts to contact or lure potential victims (link)

...because sex offenders may reoffend at locations away from the places in which they have a permanent or long-term presence... (link)

The phrase "public safety" appears 13 times in the 93-page proposal document. If that sounds like the AG is focusing on public safety, consider that the word "authority" appears 77 times.

The phrase "Attorney General" appears 134 times. 

This makes it clear that public safety is but an afterthought. That has always been the case with registry laws. The data show that registration has no effect on public safety, no effect on reducing the incidence of sex crimes, and yet here we are with an AG trying to make registration requirements even more onerous for people who are unlikely to commit another sex offense.

Is the AG trying to encourage states to come into full compliance with SORNA? From the proposed rule changes:

For example, SORNA requires registration based on conviction for child pornography possession offenses, see 34 U.S.C. 20911(7)(G), but some states that have not fully implemented SORNA's requirements in their registration programs may be unwilling to register a sex offender on the basis of such an offense. Section 2250(c)'s excuse of the failure to register terminates if the state subsequently becomes willing to register the sex offender, because the circumstance preventing compliance with SORNA no longer exists. 

In this passage, notice the sly suggestion that a state can become willing to register someone for a SORNA requirement even if the state doesn't have the same requirement. If that sounds underhanded to you, that's because it is. Providing a 'roundabout way to lay failure-to-register traps for registrants who are unaware of federal requirements is not a plan that comes from concern for public safety. Failure to register laws have nothing to do with public safety.

Is the AG trying to lay out a plan for larger federal involvement in failure-to-register cases? From the proposed rule changes:

The rule will facilitate enforcement of SORNA's registration requirements through prosecution of non-compliant sex offenders under 18 U.S.C. 2250.

See the list of qualifying convictions according to the 2017 Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender) provided by the Congressional Research Service.

Is the AG outlining a defense against future legal challenges to registry law? The proposed rules are veritably stuffed with explanations about how the AG has the authority to make and change the rules.

What kind of comment will be useful? Comments that demand the registry be shut down (a sensible demand for another day) will be ignored because the proposed rule changes do not control the existence of the registry. Comments that include specifics about a person's case and complaints of unfairness will be ignored because they are not requesting information about case details.

Starting on page 62 of the current SORNA Guidelines, you can read a summary of comments that were submitted in 2008 before those Guidelines were published. As you read that summary, you will start to see how comments are understood and why some are ignored and some result in change. To give you an idea of what will be needed for them to understand reasonable objections to the proposed changes, read the beginning of the summary:

Approximately 275 comments were received on the proposed guidelines. The Department of Justice appreciates the interest and insight reflected in the many submissions and communications, and has considered them carefully. In general, the comments did not show a need to change the overall character of the guidelines, but in some areas the commenters provided persuasive reasons to change the proposed guidelines’ treatment of significant issues, or pointed to a need to provide further clarification about them. 

The initial portion of this summary reviews the most significant and most common issues raised in the comments, and identifies changes made in the final guidelines relating to these issues. The remainder of the summary thereafter runs through the provisions of the guidelines in the order in which they appear, and discusses in greater detail the comments on each topical area in the guidelines and changes made (or not made) on the basis of public comments

They will pay attention to persuasive reasons related to the changes the Attorney General wants to make. We need to show a need. 

The rules open the door to new reporting requirements for people who consistently demonstrate they are unlikely to commit a new sex offense. Why the Attorney General wants to flex his muscles to make life more difficult for law-abiding people is a mystery.

Eternal vigilance is the price of liberty is a quote often (wrongly?) attributed to Thomas Jefferson.

When it comes to life on the registry, eternal vigilance is exactly what is necessary, especially when Congress routinely turns regulatory authority over to bureaucrats who answer to no one. Bureaucrats thrive on power.

Your comment on the proposed rule changes is vital. 

Resources to help you sort out what the changes will do:

• Proposed changes to the rules  
• The federal Sex Offender Registration and Notification Act (SORNA) 
• The current SORNA rules, published by the DOJ. 
• SORNA Guidelines from the SMART office
• This document shows how the proposed rules will change existing rules.  

Also see my additional suggestions for comments for the SORNA rule changes.

Christianity Today wonders if churches should welcome registrants

Megan Fowler, in a Christianity Today article titled, Sex Offenders Can Find Hope in Christ But Not Necessarily a Place at Church, begins: 

Churches that suspended in-person gatherings during the pandemic have pledged not to welcome their congregations back until they’re sure they can be safe.

The pandemic is on the minds of everyone who wants to return to in-person worship but that is not what she wants to talk about. Not at all.

While the risk of coronavirus spread is the major concern right now, LifeWay Christian Resources is urging leaders to use their reopening plans as a chance to also revisit their policies to prevent sexual abuse.  

Who is LifeWay Christian Resources? Why do they want churches to look again at sexual abuse policies? Why now? Good questions.

Fowler tells the story of a church that makes sure to "pay attention to new faces." That sounds friendly, doesn't it? They noticed a new face, learned his name, looked him up and found him on the registry.

The church had a plan in place for cases like his, developed based on conversations with the local alderman, police officials, and other church leaders. Tony Silker, an associate pastor at the Christian and Missionary Alliance congregation, had a conversation with the man on his next visit, explaining what they found. Silker said he could not return; if he did, the staff would call the police. [My emphasis...but the church seems happy to emphasize this, too.]

So much for "friendly." 

Silker gave the man information about another church in the neighborhood that ministers to people struggling with sexual addiction and urged him to get the support he needed.

The staff at Family Empowerment Center are trained to interact with registered sex offenders because they expect sex offenders to enter their church.

Remember that interact with means to tell them not to come back to church. 

The church works with the homeless and other vulnerable populations in the high-crime crevices of the neighborhood.

Does the church leadership ever wonder why they regularly find registrants among the homeless? Do they realize that government statutes and ordinances are what drive registrants into homelessness? Do they care enough to demand changes so that this vulnerable population--a population they seem to pay attention to--can find decent housing? 

Fowler writes:

Boz Tchividjian, a lawyer and the founder of Godly Response to Abuse in a Christian Environment (GRACE), suggests obtaining the offender’s court file, talking to the parole officer assigned to the case, and verifying whatever the sex offender tells the church leadership.

Not just a lawyer; a former prosecutor. (I wrote about him and his advice here.) 

The Godly Response not to Abuse in a Christian Environment but to someone who wants to attend church is to obtain the court file...just like Jesus always did?

Tchividjian said the way sex offenders talk about the crimes they committed can reveal the state of their heart and if they are ready to participate in worship or ministry.

“If they marginalize and minimize their behavior, [the sex offender is] not in a position to even be served,” he said.

Not even to be served? Oh, my God. They know not what they do.

“If you get to the point where the person is sorry and an open book, that’s a different story. They are teachable.”

They are teachable...as long as they talk about their past in a way that is acceptable to someone who insists on ignoring all the evidence that people on the registry rarely reoffend with another sex offense.

The Christianity Today article has more stories about churches who turn away registrants. Fowler quotes Rob Showers, a church law advisor for a different CT publication:

“Only the churches that can delve in and get good legal counsel that walks through this should undertake it,” Showers said. “It’s a wonderful ministry that can go wrong in so many ways.”

Boy, isn't that the truth? Reaching out to people yearning for connection with church is a wonderful ministry. The part that goes wrong in so many ways is the refusal of churches to look at the wealth of research available that could help them welcome people to their congregation.

If Megan Fowler had done just the tiniest bit of research, she would have found that people on the registry are not the ones committing sex crimes in churches. No, those crimes are committed by people who are not on the registry. Are there exceptions? Of course. Those are the stories that make the big headlines precisely because they are so rare.

The other part that goes wrong in so many ways is illustrated by Fowler's article: lots and lots of talk about keeping registrants away from church but not a word about preventing sexual abuse.

By focusing on registrants, attention is taken away from those people who are molesting or assaulting people. 

Oh, yes...those questions about LifeWay. Who are they and what is their interest?

LifeWay sells background checks. They sell a lot of background checks, according to their own website:

From 2009 to 2019, more than 20,000 customers have conducted more than 416,000 screenings through the program, according to Jennie Morris of LifeWay. “On average, we add 150 customers a month,” she said.

Businesses across the country are permanently closing because the pandemic has reduced their business so drastically. The pandemic probably has a similar effect on a business that sells background checks to churches at a time when churches are no longer meeting in person.

A good guess is that LifeWay is tired of losing business and is spreading fear of people sexually abusing kids at church, now that churches are beginning to open up again. 

While child sexual abuse at churches and schools has certainly been reduced by eliminating in-person activities, sexual abuse is still occurring where it has always occurred most often: in the home. 

__________

I have written previously about how churches treat people on the sex offender registry:

March 29, 2017 - advice about how a church should treat registered citizens

November 25, 2016 - what's the harm in a background check?

October 6, 2016 - who does Jesus look like?

August 26, 2015 - arrested for attending church

February 4, 2015 - "...we don't ever see Jesus rejecting. Ever."

August 7, 2014 - how a congregation should respond to sex offenders among them

August 6, 2014 - a church welcomes registered sex offenders

October 18, 2013 - persecution leads to suicides

added--a list of resources

Notes from the Handbasket now offers a list of resources that may be useful to those traversing the rough territory of the registry. On your mobile device, click the arrow to the right of Home and select NEW! Resources, an Incomplete List. On your computer, under Pages to the right, click the Resources link.

As the page title says, this is an incomplete list. You are welcome to add other resources in the comments below or in the comments for the Resources page.

Black Lives Matter

Black lives matter. Absolutely. People of color are disproportionately represented at all phases of the criminal justice system: interactions with law enforcement, arrests, jail, prison, probation and parole. Recognizing that truth ought to lead us to make changes that will result in fair, proportional treatment.

We’ve known that truth for decades and yet here we are, mourning another death of another black man at the hands of police.

So why have we not seen reforms?

The simplistic response is to blame racism but racism alone doesn’t make it possible for cops to kill a man in broad daylight, with the death recorded and seen around the world, and not face consequences. 

Racism with power is the explanation.

Without the power to act with impunity, law enforcement officers would be much less likely to treat people with such aggression and hostility. The racists we encounter in our daily lives--neighbors, co-workers, family--are extremely unlikely to kill someone just because of skin color. Racism can show itself in other damaging ways but most racists cannot kill without being held accountable.

Law enforcement officers can. What gives them that power? The doctrine of qualified immunity, for one.

An article in The Appeal explains:

That doctrine has become one of the chief ways in which law enforcement avoids accountability for misconduct and…even proven constitutional violations. Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.

Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year.

Qualified immunity permits law enforcement and other government officials to violate people’s constitutional rights with virtual impunity. Today, we hear about police shooting after police shooting where officers are rarely if ever held accountable by the criminal legal system, either because prosecutors decline to charge, because grand juries decline to indict, or because juries decline to convict.

In Minneapolis, the four police officers involved in George Floyd's death were all fired the same day Floyd was killed. At first glance, that looks like progress...a police department that has had enough of overly aggressive cops.

History, though, shows us that firing bad cops is not a sure thing.

In Omaha NE, June 2017, Zachary BearHeels, in the midst of a mental health crisis, was tasered a dozen times by one of the police officers who were called to help him. Another officer punched BearHeels 13 times in 15 seconds. Bearheels died after those assaults. 

There was video, and Omaha Police Chief Todd Schmaderer fired the four cops involved in BearHeels' death. The city breathed a sigh of relief and gratitude that Schmaderer saw things clearly.

Three years later? Three of those cops are back on the force, thanks to efforts by the Omaha Police Officers’ Association, the police union. The Omaha World-Herald reports,

All three will receive back pay since they were fired, minus any income they may have earned in that time, in den Bosch said. Those amounts have not been calculated yet. McClarty’s payment will have 20 days — the length of the suspension period imposed by the arbitrators — taken out of his back pay.

In a statement, Schmaderer said it is time to move forward.

“Omaha police officers have a very difficult job and my focus is on keeping my officers safe in the coronavirus environment while simultaneously protecting the city,” he said.

Tony Conner, the president of the police union, said the process was fair and that “every American citizen has the right to due process, including any police officer.”

In addition to qualified immunity, law enforcement officers have powerful unions to protect their jobs. In a USA Today opinion piece, former union official Benjamin Sachs explains:

Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union.

Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability.

Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time.

When people call for an end to police unions or a limit to their bargaining power, this is why.

There are other elements that lead to overly aggressive and violent policing, including the militarization of America's police as detailed in the Radley Balko book, The Rise of the Warrior Cop. Look at the armored vehicles used against protesters in the current demonstrations and riots across the country. Look at the riot gear. Look at how those military tools are used against young protesters.

Something is wrong with policing in this country. Police assume a warrior attitude of cops vs citizen, even though they are sworn to protect and serve the community.

Until we make changes that will hold law enforcement officers accountable to their communities, the vulnerable in our communities will pay for our lack of will to push for change.

The cry to "defund the police" is one that puzzles some people--generally people who work from the assumption that the cops are here to deal with criminals for us. Defunding police departments--or reducing the law enforcement budget--would  force those departments to rework their priorities. Can they do more with less? Can they do without spending money on ever more advanced riot gear? Can they operate without flashy surveillance equipment? 

The combination of over-criminalization and over-policing is not found in every neighborhood. Some of us live where police officers come to the block party carrying beer. Others live where cops cruise the neighborhood waiting to arrest someone. Big difference.

Until people can see that some communities suffer from over-policing, they will continue to think that those communities have more criminals and that's why so many of those families have a loved one who is incarcerated. 

And that is where racism shows up: the willingness to believe that people of that race or that neighborhood are inherently worse than we are. 

When the power of the state is brought to bear against an individual like George Floyd, a list of people convicted of a certain category of crime, a neighborhood or a demonstration, we had better make sure that we have a way to fight that power. When the state puts policies in place that prevent us from holding the state--law enforcement--responsible for its crimes and misdeeds, the power of the state is magnified. Magnified power is hard to destroy.

We must demand change to reduce that power.

Yes. Black lives matter. They matter enough this time to cause riots. Are we listening? Are we watching? Are we demanding changes that will decrease the power of law enforcement?