Thursday, September 16, 2021

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.

Monday, May 10, 2021

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?

Sunday, April 18, 2021

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.

Saturday, March 13, 2021

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 Conduluci--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.

Tuesday, October 6, 2020

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 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.

Thursday, September 24, 2020

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:

Saturday, September 19, 2020

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.
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: