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.