Wednesday, November 17, 2021

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 an African 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

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.