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The Internet, The Former Offender, And the New Cyber-Gestapo
Derek “The Fallen One” Logue
June 23, 2008

Introduction

The fight for our rights to use the Internet for support, treatment, education, and activism are under attack
from John McCain and his contemporaries using former sex offenders to gain votes. Two measures are
before our leaders-- one in state, and one in Federal-- which would restrict the rights of former offenders
to use the Internet for legitimate purposes.  The purpose of this guide is to analyze the dangers of the
new wave of legislation designed to silence our voices, and develop an effective counterargument to
these laws.

Keeping the Internet Devoid of Sexual Predators [KIDS] Act of 2008 [S-431-ES] -- The current
revision as passed by the Senate

Section 1: Short Title

Section 2: Registration of Online Identifiers of Sex Offenders:

Amends the Sex Offender Registration and Notification Act (SORNA) requiring offenders to register “any
electronic mail address or other designation the sex offender uses or will use for self identification or
routing in Internet communication or posting (I.e., screen names). Failure to register email addresses is
punishable by fines and up to 10 years in prison

Section 3: Checking of Online Identifiers Against SO Registration Information:

Allows for the creation of a database for use by online “social networking sites;” requires social network
sites to petition for its use; the AG has powers to suspend or terminate service; the list is not to be made
public; However, the social networking sites have immunity against civil suits, unless the information is
used for illegal, malicious, or unauthorized purpose; Only a select few workers will have access to the site

Section 4: Definitions

Section 5: Criminalization of Age Misrepresentation in Connection with Online Solicitation of a Minor

Makes lying about your age to pick up a minor an offense punishable by up to 20 years

Section 6: Knowingly accessing child pornography with the intent to view child pornography

Section 7: Clarifying Ban of Child Pornography

Georgia Senate Bill 474

Georgia SB 474 takes the net law a step further, requiring former offenders to register their PASSWORDS
as well.

Section 1: Develop Internet safety educational program for youth

Section 2: Requires ISPs to provide Internet filtering and monitoring (read: spy ware) software to control
Internet activity of minors; failure to do so is a misdemeanor

Section 3: Adds Internet definitions in the “Definitions” section of the Georgia Code

Section 4: Requires former offenders to register if they go to school and location, email addresses, user
names, and USER PASSWORDS (SECTION 4-K), and the nature of the crime committed

Section 5: Probationers/ parolees prohibited from contact with victim or loitering around any place where
minors congregate; must wear a GPS device; required to provide Internet usage history; required to allow
unannounced inspection or taking of computer or storage equipment; cannot run for office for the board
of education

Section 6: Act becomes effective July 1, 2008; Sections 3 and 4 effective January 1, 2009

Section 7: All acts in conflict with this Act are repealed

Concern: This information might be available under the Open Records Act to anyone who asks, putting
registered sex offenders at risk of identity theft if they use banking or other commercial services.  (Mike
Billips, “Internet Predator Bill Nears Passage.” Macon GA Telegraph, April 5, 2008)

Precursor to the KIDS Act: Child Online Protection Act (COPA)-- Senator John McCain has been
pushing this since 1998.

Issues: Required ISPs to block sites suspected of child porn and provide filtering software; sites could be
blocked on the mere use of a word like “sex;” standard was the term “Harmful to Minors,” which was
defined as material judged by “contemporary community standards” as appealing to the “prurient interest”
and showed sex acts or nudity; much broader definition than  the “obscenity” standard

See:
http://en.wikipedia.org/wiki/Communications_Decency_Act
http://en.wikipedia.org/wiki/Child_Online_Protection_Act

Litigation against COPA:

Ashcroft v. ACLU, 542 US 656 (2004): SCOTUS upheld an injunction against enforcing COPA on grounds
it likely violates the Constitution (1st Amendment) and was not narrowly tailored to serve its purpose
(Ironically, it was written to narrow the Communication Decency Act, which SCOTUS struck down in ACLU
v. Reno, 521 US 844 [1997]).

ACLU v. Gonzalez, No. 98-5591 (US Dist. Ct. ED Penn. [2007]): COPA facially violates the First and Fifth
Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is
not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of
showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest;
and (3) COPA is impermissibly vague and overbroad.

Research on Internet Sex Crimes:

Youth Internet Safety Survey (YISS)-- 2000

19% experienced an “unwanted sexual solicitation”
3% experienced an “aggressive solicitation” involving a request for offline contact
0% (none!) of the solicitations led to actual sexual contact or assault

Of the solicitations:

24% of solicitations were made by those over 18
48% of solicitations were made by people UNDER 18
28% were of unknown age
66% were from males
25% were from females
75% reported it as “not distressing”

From: Janis Wolak, David Finkelhor, and Kimberly J. Mitchell and Michele L. Ybarra, “Online ‘Predators’
and their Victims: Myths, Realities, and Implications for Prevention and Treatment” American Psychologist,
February-March 2008

“The publicity about online ‘predators’ who prey on naïve children using trickery and violence is largely
inaccurate.” - p. 111

“In the N-JOV Study, only 5% of offenders pretended to be teens when they met potential victims online” -
p.112

“There were an estimated 6,594 arrests nationwide for statutory rape in 2000. During about the same time
period (July 1, 2000, to June 30, 2001) federal, state, and local law enforcement agencies made an
estimated 500 arrests for Internet-initiated sex crimes, 95% of which were non-forcible… In the context of
general sex crime risk, however, these numbers suggest that Internet-initiated sex crimes account for a
salient but small proportion of statutory rape offenses and a relatively low number of the sexual offenses
committed against minors overall.” - p. 114-115

Barriers to effective prevention strategies (p.115)

1. The “characterization of young people as vulnerable because of the naïveté about the internet itself is
inaccurate;” it is the older teens more at risks as they grow more independent and risk taking
2. The “characterization of young people as vulnerable because they are innocent about sex does not
capture the nature of the sexual issues that get youths into trouble online. The reality of adolescent
sexual development includes growing sexual curiosity, knowledge, and experience as youths make the
transition from childhood to adulthood”

“Aggressive solicitations do not necessarily involve sexual approaches from online molesters, and few
youths who receive such solicitations agree to meet solicitors.” - p. 116

“Posting personal information online is widely regarded as putting youths at risk for victimization by online
child molesters, but findings from the YISS-2 suggest that it is not, by itself, associated with being sexually
solicited online… It is interactive behaviors, such as conversing online with unknown people about sex (or
posting provocative photos), that more clearly crate risk.” - p. 117

My Space et al. are not being used to target victims: “[A] close perusal of media stories suggests that
online molesters have not changed their tactics as a result of the advent of social networking sites (e.g.,
Rawe, 2006; Schrobsdorff, 2006). In addition, between June and October 2007, we conducted over 400
interviews with police about Internet-related sex crimes in conjunction with a second N-JOV Study, and we
have yet to find cases of sex offenders stalking and abducting minors on the basis of information posted
on social networking sites. Online molesters do not appear to be stalking unsuspecting victims but rather
continuing to seek youths who are susceptible to seduction.” - p. 117

“Whereas posting information online, by itself, may not be as risky as some fear, there is increased risk
associated with a pattern of different kinds of potentially risky online behaviors that includes posting
personal information The pattern was identified by looking at nine online behaviors that are often deemed,
or could be, risky for youths to engage in (e.g., interacting online with unknown people, having unknown
people on a buddy list, talking online to unknown people about sex, seeking pornography online, being
rude or nasty online). As the number of different types of these behaviors increased, so did the odds of
online interpersonal victimization.” - p. 118

“The widespread popularity of television shows such as To Catch a Predator reveals the public fascination
with online child molesters. The media has been quick to characterize such men as Internet or online
“predators” and pedophiles. Implicit in these characterizations is the notion that these are highly motivated
and repetitive sex offenders who have deviant sexual interests in children and predilections to abduction
and violent assault. In fact, the considerable research and theory about child molesters—on what impels
them to offend, how likely they are to have large numbers of victims or to re-offend, and whether they
have violent propensities —makes it clear that child molesters are, in reality, a diverse group that cannot
be accurately characterized with one-dimensional labels. Although there is little research specifically about
online child molesters, there are indications that they occupy a narrow range on the spectrum of the sex
offender population, one that largely excludes pedophiles and violent or sadistic offenders. - p. 118

“An important fact that supports caution in speculating about how the Internet has facilitated child
molestation is that several sex crime and abuse indicators have shown marked declines during the same
period that Internet use has been expanding. From 1990 to 2005, the number of sex abuse cases
substantiated by child protective authorities declined 51%, along with other related indicators.” - p. 121

Implications for Prevention and Public Policy (p. 121-123)

  • Avoid descriptions of the problem that characterize victims as young children or emphasize violence
    and deception
  • Be clear about why sex with underage adolescents is wrong
  • Focus prevention efforts more on adolescents and less on parents
  • Focus prevention frankly on concerns relevant to adolescents, including autonomy, romance, and
    sex
  • Prevention should be developmentally appropriate and an aspect of broader programs that focus
    on healthy sexual development and avoiding victimization
  • Focus more on interactive aspects of Internet use and less on posting personal information
  • Educate youths about criminal behavior and child pornography
  • Develop targeted prevention approaches for the most at-risk youth populations
  • Assess for a pattern of risky online behavior

In short, the research shows online victimization is as much a part of predator panic as stranger-danger. It
is a rare occurrence at best, and the current state of the laws are not only unnecessary, but will reinforce
the “stranger danger” Internet mentality.

Constitutional Challenges:

  • NOTE #1: Keep in mind we must reinforce the fact that Internet communications are the same as
    telephone, physical mail, or any other form of communication. It is important to emphasize this since
    Internet-related communications should be treated in the same way as the rules for any other forms
    of communication.
  • NOTE #2: Remember the Constitution only applies to Governmental action, not private action.
    Thus, these rules do not apply to My Space, Facebook, Google, etc., because those are private
    entities, NOT state entities. However, it could be argued that appearance of Internet names on a
    public registry will lead to private businesses organizations banning former offenders from access to
    the Internet or use of service, thus interfering with equal protection

First Amendment: Freedom of Speech, Assembly/ Petition, Association

''That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and consult for their common good, and to petition the government for a
redress of grievances.''

Violates freedom of speech and freedom of assembly. As previously noted, the predecessors of the KIDS
Act were struck down on free speech issues. In regards to the right to assembly, it can be argued that the
Internet has become the primary source of information in the former offender community; without the
Internet, our movement would be greatly hampered. As noted on my links page, there are numerous
websites, blogs, and forums for former offenders to seek help. It is also necessary because many of the
features of Internet usage is becoming the preferred method of conducting many business or even
governmental transactions, from Social Security benefits to banking to buying and selling products. Also,
anyone who has registered at multiple websites knows how difficult it is to keep the same screen name
when 27,000 other people share variations of your screen name. Thus, the laws prevent you from actively
participating in a new forum because you would have to notify law enforcement of the new changes (as
noted by E-advocate, http://sexoffenderresearch.blogspot.com/2008/05/folly-of-s-431-kids-act-of-
2008_22.html).

Relevant cases:

Lamont v. Postmaster General, 381 US 301 (1965): Found the government’s rule detaining mail from
“communist” sources until the receiver fills out a request form violated (a “limitation on the unfettered
exercise of”) the First Amendment. I would think the delays incurred while awaiting for a screen name to
be registered would be similar in nature to the facts in this case

US v. Robel, 389 US 258 (1967): The indiscriminate application of a rule barring government employees
from all types of association with Communist groups, regardless of quality and degree of membership,
makes it impossible to save the rule from “constitutional infirmity.” Considers the “right of association” a
“basic” right. Claiming the law was necessary for “national defense” does not exclude the rule from
constitutional limitations [see also Home Bldg. v. Blaisdell, 290 US 398 (1934)]

Brandenburg v. Ohio, 395 US 444 (1969): The state cannot punish mere advocacy, including those which
advocate the use of force or law violation, “except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such violent action. One suggested
protest involved registering thousands of email addresses under your name in protest of this law, and it
would fall under this court decision

NAACP v. Button, 371 US 415 (1963): The state cannot bar people from urging individuals from filing
litigation or in assisting litigation

Hague v. CIO, 307 US 496 (1939): The privilege of a group to use a public forum is relative, not absolute,
making concessions for safety and convenience, but must not be abridged or denied

Connection Distributing Co. v. Keisler, No. 06-3822 [6th Ct. (Oct 23, 2007): Struck down Section 2257 of
the Federal Recordkeeping and Label Act violated the “Overbreadth Doctrine,” finding the statute as
“extremely broad”  and the universal age-verification requirement runs afoul of the First Amendment;
violation of anonymity (http://www.ca6.uscourts.gov/opinions.pdf/07a0430p-06.pdf)

Fourth Amendment: Protection against unreasonable searches and seizures.

E-Advocate makes a good argument regarding how email addresses are a part of your physical computer,
and thus a warrant would be needed (http://sexoffenderresearch.blogspot.com/2008/05/folly-of-s-431-kids-
act-of-2008-part-4.html). I wish to take that analogy a step further. How about a PO Box or a safety
deposit box? When we use certain services, we are renting space. The Internet is no different: we rent
space on a server to collect electronic mail. Any case which upholds the need for a warrant in any other
form of communication applies here as well. The Georgia law is more blatantly unconstitutional because
by turning over passwords, we are doing the equivalent of handing over our PO Box and Safety Deposit
Box keys without a warrant. It may be necessary in arguing the Fourth Amendment here, you may have to
explain how the Internet works ( see http://computer.howstuffworks.com/internet-infrastructure.htm)

Important Cases:

Katz v. US, 389 US 347 (1967): Adopted a twofold requirement; first, that a person have exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as “reasonable.” Thus, one can reasonably assume e-mail and passwords are
private.

US v. Maxwell, 45 MJ 406 (CAAF 1996):  Found that even though less secure than other forms of
communication, the expectation of e-mails remaining private meets the Katz standard; compared e-mails
to regular mail and telephone calls.

The following are the only types of valid warrantless searches: Detention short of arrest (aka, “Stop and
Frisk”), Search Incident to Arrest, vehicle or “vessel” (boat) searches, consent searches, border
searches, “open fields,” “plain view” objects, public schools, government offices, prisons and the
regulation of probation, and drug testing

Fifth Amendment: Violates the right against self-incrimination.

There is actually a rather large debate regarding whether passwords or encrypted files fall under the
Fourth or Fifth Amendment. I would argue both to cover both arguments. The debate is whether a
password is like a physical key (thus a fourth amendment case) or communication (Fifth Amendment). In a
way, it is both.

In Re Boucher, Case 2:06-mj-00091-jjn [US Dist. Ct. Vt. (Nov.29, 2007)]: Held that forcing a man to unlock
encrypted files compels one to incriminate himself in a criminal case, thus it violates the Fifth Amendment

Fourteenth Amendment: Due Process

“Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”

The Due Process clause actually absorbs many of the points associated with the First Amendment, such
as freedom of speech and right of assembly; many of the cases fall under both categories. In regards to
the “right of travel,” it could be argued that the Internet is a form of “travel,” allowing us to meet in a virtual
meeting place instead of in person, noting similar in form and function to telephone conferencing or
conversing by postal letter.

Fiske v. Kansas, 274 US 380 (1927): Found the “Kansas Syndicalism Act,” which criminalized any media
which promoted or encouraged any criminal activity or sabotage for political or corporate gains, violated
the due process clause-- merely engaging in activities that called for “abolishment” of a societal system
does not imply the organization is involved in criminal activity. This is important to bring up when attacked
as a member of the online community of former offenders.

E.B. v. Verniero, 119 F. 3d , rehearing denied 127 F.3d 298, cert. denied, 522 US 1110: even when
punishment is neither the actual or objective purpose of the law, civil sanctions may constitute punishment
if the effects or “sting” are harsh enough to be considered a punishment, and must be evaluated in light of
importance of any legitimate governmental interest served.

State v. Burnett (2001) 93 Ohio St. 3d 219, a law barring convicted drug offenders from entering
Cincinnati’s “Over-The-Rhine” district failed constitutional analysis because it went beyond restricting
those interests associated with illegal drug activity and restricted a substantial amount of innocent
conduct, like living in an apartment, or visiting human services. The law restricted and/or punished
behavior not even linked to criminal activity; merely the act of being in the restricted area was enough to
get you arrested. Also, the restriction restricted drug offenders from obtaining the assistance or support
networks necessary for rehabilitation which was otherwise severely diminished by the restrictions. Later
upheld in Johnson et al. v. City of Cincinnati, 2002 FED App. 0332P (6th Cir.), cert. denied, US Supreme
Court case no. 02-1452.

Summary:

Internet laws, much like their counterparts, are designed to attempt to “prevent” those rare instances of
internet sex crimes committed by former offenders; however, out of all the laws, perhaps this will be the
most damning to our cause, as it interferes with the ability of speak out in public forums and effectively run
our online accounts and businesses.

The research has shown what society believes about the nature of internet sex crimes is a myth. Adults
actually meeting teens for sex through the internet is a very rare occurrence, and most sexual solicitations
have occurred from other teens, and rarely do people lie about being adults when they do solicit teens for
sex. Serious reforms must be made to how we approach the internet sex crimes and understand how they
are committed in order to show how the latest legislative proposals are missing their mark.

The strongest argument could be made through the First (Free speech, assembly) and Fourteenth (due
process) Amendments, though the Fifth Amendment (self-incrimination) could be argued. Also, the Fourth
Amendment could be argued against the collection of e-mails and passwords in your custody, because
private e-mails are expected to have reasonable privacy, and should be argued as any other form of
communication should be. Also, it should be important to bring up the fact that laws are supposed to be
narrowly tailored to prevent only those crimes from happening. These laws are too easily circumvented;
conversely, they amount to a massive burden every time we register to a new forum whenever screen
names are not available or other related issues.

For More Information:

My “Civil versus Criminal Argument” page

E-advocate’s “The Folly of the KIDS Act of 2008” commentaries

http://sexoffenderresearch.blogspot.com/search/label/The%20Kids%20Act%20of%202008

How Stuff Works: The Internet

http://computer.howstuffworks.com/internet-infrastructure.htm

Matthew J. Hodge, “The Fourth Amendment and Privacy Issues on the “New” Internet: Facebook.com and
MySpace.com.” Southern Illinois University Law Journal.

http://www.law.siu.edu/research/31fallpdf/fourthamendment.pdf

UPDATE! June 25, 2008

Doe V. Prosecutors, CASE NO. 1:08-cv-0436-DFH-TAB [So. Dist. Ill, June 24, 2008)]: Held that Indiana's
Internet sex offender law, which required offenders to register and sign consent forms to allow their
computers to be searched at any time, violated the Fourth Amendment and right to privacy in relation to
offenders who are NOT on probation/ parole
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