Cato Institute holds forum on the unintended consequences of sex offender registry laws

Today the Cato Institute held a forum “You may be a sex offender if …”.  The purpose of the event was to show the unintended consequences of the draconian sex offender registration laws that started with the Jacob Wetterling Act in 1994, requiring convicted sex offenders to register with local law enforcement, and Megan’s Law, in 1996, which required states to publish the information.

The Cato handout pointed out very venial offenses can result in sex offender registration.  These could include urinating in public, visiting prostitutes (in some states), and especially cell phone sexting by teenagers – of images of themselves.

Walter Olson, senior Cato Fellow, moderated.  The link for the event is here and a complete video from Cato is present there.

The first speaker was Lenore Skenazy, publicly known as founder of “Free-Range Kids” and leading the anti-helicopter parenting movement. She began her narrative with a tale of a 12 year old boy put in juvenile prison for a touching incident with a sister at home.  He was compelled in treatment to confess to acts he hadn’t committed, and forced to register for years.

She also discussed the case of Zach Anderson, who at 17 had sex with a 14 year old girl who admitted she had lied about her age online.  Although his sentence was reduced, it will still severely limit his young adult life and employment (no Internet content).  The original judge believed that his Internet use had been gratuitous, and that he should have been responsible for knowing the real age of the girl.

Skenazy tried an experiment, handing out 3×5 cards to the audience (rather like English class in high school for a pop quiz) and asking yes or no, had you ever committed one of a long list of possible offenses that could result in mandatory registration.  The final count was 28 to 10, yes.

Dara Lind from Vox Media also spoke, emphasizing the public shaming part of the registry enforcement. Crime is controlled by punishment, deterrence, rehabilitation, and incapacitation, which is what the mandatory registration is supposed to accomplish. She made a comparison to the “rotten apples” banning of films associated with shamed actors or media executives in the recent sexual harassment scandals and the #MeToo movement.

But it’s apparent that the “incapacitation” is enforced by the community rather than by the state per se.

I asked a question from the audience about the possibility of being framed for illegal content, especially possessing child pornography, by attacks from others.  This could come through phishing, malware (similar to ransomware, and this has happened a few times), or possibly direct hacking of websites owned by a business or person. This could be a technique of a terrorist group or of a foreign enemy (compare to North Korea’s hack of Sony in 2014).  I mentioned that possession of child pornography has been mentioned as an “absolute liability offense”, at least in conjunction with a case in Arizona back in 2006.  Mr. Olson said that the idea of “mens rea” (“I didn’t mean too”) is better understood in the courts with respect to the Internet now than it was a decade ago, when Internet use might have been seen as more gratuitously motivated.  (Does that shift “rebuttable presumption” back to innocence?”) Skenazy said that the idea could be quite scary especially for the less educated users and mentioned a case where someone with autism was convicted of such possession when the person clearly did not understand the offense.

There was lunch upstairs afterward.  During the luncheon, a Washington Blade reporter mentioned that gay placement on sex offender registries had occurred when sodomy laws were on the books, until Lawrence v. Texas in 2003;  a few men had trouble getting their names removed when sodomy laws were ruled unconstitutional.  It was also mentioned that in Florida, police have the option of placing red signs on the residences of sex offenders, a literal scarlet letter.

The discussion noted that California had been the first state with mandatory sex offender registries, and that men of color are proportionally more likely to be on registries than white men or any females.

See the Pingback reference on the July 19, 2016 on my own personal brush with this issue back in 2005 when I was working as a substitute teacher.  Unlikely coincidences created the problem, but it seemed quite serious at the time.  There is a lot of detail there to look at.

(Posted: Thursday, February 8, 2018 at 9:30 PM EST)

SESTA clears Senate committee, and Congress seems serious about stopping trafficking, even if it requires sacrifices from Internet users — and it seems superfluous

Electronic Frontier Foundation has reported that the Senate Commerce Committee has approved a version of SESTA, the Stop Enabling Sex Traffickers Act, S. 1693.  Elliot Harmon’s article calls it “still an awful bill”.   Harmon goes into the feasibility of using automated filters to detect trafficking-related material, which very large companies like Google and Facebook might be half-way OK with. We saw this debate on the COPA trial, about filtering, more than a decade ago (I attended one day of that trial in Philadelphia in October 2006). No doubt, automated filtering would cause a lot of false positives and implicit self-censoring.

Apparently the bill contains or uses a “manager’s amendment”  (text) floated by John Thune (R-SD) which tries to deal with the degree of knowledge that a platform may have about its users.  The theory seems to be that it is easy to recognize the intentions of customers of Backpage but not of a shared hosting service. Sophia Cope criticizes the amendment here.

Elliot Harmon also writes that the Internet Association (which represents large companies like Google) has given some lukewarm support to modified versions of SESTA, which would not affect large companies as much as small startups that want user-generated content   It’s important to note that SESTA (and a related House bill) could make it harder for victims of trafficking to discuss what happened to them online, an unintended consequence, perhaps.  Some observers have said that the law regarding sex trafficking should be patterned after child pornography (where the law seems to work without too much interference of users) and that the law is already “there” now.

But “” has published a historical summary by Cindy Cohn and Jamie Williams that traces the history of Section 230 all the way back to a possibly libelous item in an AOL message board regarding Oklahoma City (the Zeran case).  Then others wanted to punish Craigslist and other sites for allowing users to post ads that were discriminatory in a Civil Rights sense. The law need to recognize the difference between a publisher and a distributor (and a simple utility, like a telecom company, which can migrate us toward the network neutrality debate).   Facebook and Twitter are arguably a lot more involved with what their users do than are shared hosting sites like BlueHost and Verio, an observation that seems to get overlooked.   It’s interesting that some observers think this puts Wikipedia at particular risk.

I don’t have much an issue with my blogs, because the volume of comments I get is small (thanks to the diversion by Facebook) these days compared to 8 years ago.  When I accept a guest post, I should add that Section 230 would not protect me, since I really have become the “publisher” so if a guest post is controversial, I tend to fact-check some of the content (especially accusations of crimes) myself online.

I’d also say that a recent story by Mitch Stoltz about Sci-Hub, relating to the Open Access debate which, for example. Jack Andraka has stimulated in some of his Ted Talks, gets to be relevant (in the sense that DMCA Safe Harbor is the analogy to Section 230 in the copyright law world). A federal court in Virginia ruled against Sci-Hub (Alexandra Elbakyan) recently after a complaint by a particular science journal, the American Chemical Society  But it also put intermediaries (ranging from hosting companies to search engines) at unpredictable risk if they support “open access” sites like this. The case also runs some risk of conflating copyright issues with trademark, but that’s a bit peripheral to discussing 230 itself.

Again, I think we have a major break in our society over the value of personalized free speech (outside of the control of organizational hierarchy and aggregate partisan or identity politics).  It’s particularly discouraging when you look at reports of surveys at campuses where students seem to believe that safe places are more important than open debate, and that some things should not be discussed openly (especially involving “oppressed” minorities) because debating them implies that the issues are not settled and that societal protections could be taken away again by future political changes (Trump doesn’t help). We’ve noted here a lot of the other issues besides defamation, privacy and copyright; they include bullying, stalking, hate speech, terror recruiting, fake news, and even manipulation of elections (am issue we already had an earlier run-in about in the mid 2000s over campaign finance reform, well before Russia and Trump and even Facebook). So it’s understandable that many people, maybe used to tribal values and culture, could view user-generated content as a gratuitous luxury for some (the more privileged like me) that diverts attention from remedying inequality and protecting minorities.  Many people think everyone should operate only by participating in organized social structures run top-down, but that throws us back, at least slouching toward authoritarianism (Trump is the obvious example). That is how societies like Russia, China, and say Singapore see things (let alone the world of radical Islam, or the hyper-communism of North Korea).

The permissive climate for user-generated content that has evolved, almost by default, since the late 1990s, seems to presume individuals can speak and act on their own, without too much concern about their group affiliations.  That idea from Ayn Rand doesn’t seem to represent how real people express themselves in social media, so a lot of us (like me) seem to be preaching to our own choirs, and not “caring” personally about people out of our own “cognitive”  circles.  We have our own kind of tribalism.

(Posted: Wednesday, Nov. 15, 2017 at 2 PM EST)

Update: Monday, Nov 27, 10 AM EST

I’ve said that this doesn’t sound like a direct problem for bloggers moderating comments, but could it mean legal liability if a blogger approved a comment that linked to a site trying to sell sex trafficking. Normally I don’t go to links from many comments out of fear of malware, and I don’t guarantee that commenter’s own embedded hyperlinks are “safe”.  Some comments are in foreign languages, and I generally don’t translate them (I usually insist that they use the normal alphabet).   Could this change?  I suppose however that issue could exist with child pornography now.  This concern applies even though I use a webhosting partner service (Akismet) to filter spam comments.


“Implicit content” may become the next big Internet law controversy; more on Backpage and Section 230

It is important to pause for a moment and take stock of another possible idea that can threaten freedom of speech and self-publication on the Internet without gatekeepers as we know it now, and that would be “implicit content”.

This concept refers to a situation where an online speaker publishes content that he can reasonably anticipate that some other party whom the speaker knows to be combative, un-intact, or immature (especially a legal minor) will in turn act harmfully toward others, possibly toward specific targets, or toward the self. The concept views the identity of the speaker and presumed motive for the speech as part of the content, almost as if borrowed from object-oriented programming.

The most common example that would be relatively well known so far occurs when one person deliberately encourages others using social media (especially Facebook, Twitter or Instagram) to target and harass some particular user of that platform.  Twitter especially has sometimes suspended or permanently  closed accounts for this behavior, and specifically spells this out as a TOS violation. Another variation might come from a recent example where a female encouraged a depressed boyfriend to commit suicide using her smartphone with texts and was convicted of manslaughter, so this can be criminal.  The concept complicates the normal interpretation of free speech limitation as stopping where there is direct incitement of unlawful activity (like rioting).

I would be concerned however that even some speech that is normally seen as policy debate could fall under this category when conducted by “amateurs” because of the asymmetry of the Internet with the way search engines can magnify anyone’s content and make it viral or famous.  This can happen with certain content that offends others of certain groups, especially religious (radical Islam), racial, or sometimes ideological (as possibly with extreme forms of Communism).  In extreme cases, this sort of situation could cause a major (asymmetric) national security risk.

A variation of this problem occurred with me when I worked as a substitute teacher in 2005 (see pingback hyperlink here on July 19, 2016).  There are a couple of important features of this problem.  One is that it is really more likely to occur with conventional websites with ample text content and indexed by search engines in a normal way (even allowing for all the algorithms) than with social media accounts, whose internal content is usually not indexed much and which can be partially hidden by privacy settings or “whitelisting”.  That would have been true pre-social media with, for example, discussion forums (like those on AOL in the late 1990s). Another feature is that it may be more likely with a site that is viewed free, without login or subscription. One problem is that such content might be viewed as legally problematic if it wasn’t paid for (ironically) but had been posted only for “provocateur” purposes, invoking possible “mens rea”.

I could suggest another example, of what might seem to others as “gratuitous publication”.  I have often posted video and photos of demonstrations, from BLM marches to Trump protests, as “news”.  Suppose I posted a segment from an “alt-right” march, from a specific group that I won’t name.  Such a march may happen in Washington DC next weekend (following up Charlottesville).  I could say that it is simply citizen journalism, reporting what I see.  Others would say I’m giving specific hate groups a platform, which is where TOS problems could arise. Of course I could show counterdemonstrations from the other “side”. I don’t recognize the idea that, among any groups that use coercion or force, that one is somehow more acceptable to present than another (Trump’s problem, again.)  But you can see the slippery slope.

When harm comes to others after “provocative” content is posted, the hosting sites or services would normally be protected by Section 230 in the US (I presume).  However, it sounds like there have been some cases where litigation has been attempted.  Furthermore, we know that very recently, large Internet service platforms have cut off at least one (maybe more) website associated with extreme hate speech or neo-Nazism. Service platforms, despite their understandable insistence that they need the downstream liability protections of Section 230, have become more pro-active in trying to eliminate users publishing what they consider (often illegal) objectionable material.  This includes, of course, child pornography and probably sex trafficking, and terrorist group recruiting, but it also could include causing other parties to be harassed, and could gradually expand to subsumed novel national security threats. But it now seems to include “hate speech”, which I personally think ought to be construed as “combativeness” or lawlessness.  But that brings us to another point:  some extreme groups would consider amateur policy discussions that take a neutral tone and try to avoid taking sides (that is, avoiding naming some groups as enemies instead of others, as with Trump’s problems after Charlottesville), as implicitly “hateful” by default when the speaker doesn’t put his own skin in the game.   This (as Cloudflare’s CEO pointed out) could put Internet companies in a serious ethical bind.

Timothy B. Lee recently published in Ars-Technica, an update on the “Backpage” bills in Congress, which would weaken Section 230 protections. Lee does seem to imply that the providers most at risk remain isolated to those whose main content is advertisements, rather than discussions; and so far he hasn’t addressed with shared hosting providers could be put at risk.  (I asked him that on Twitter.)  But some observer believe that the bills could lead states to require that sites with user-logon provide adult-id verification.  We all know that this was litigated before with the Child Online Protection Act (COPA), which was ruled unconstitutional finally in early 2007.  I was a party to that litigation under Electronic Frontier Foundation sponsorship. Ironically, the judge mentioned “implicit content” the day that I sat in on the arguments (in Philadelphia).

I wanted to add a comment here that probably could belong on either of my two previous posts.  That is, yes, our whole civilization has become very dependent on technology, and, yes, a determined enemy could give us a very rude shock.  Born in 1943, I have lived through years that have generally been stable, surviving the two most serious crises (the Vietnam military draft in the 1960s and then HIV in the 1980s) that came from the outside world.  A sudden shock like that in NBC’s “Revolution” is possible.  But I could imagine being born around 1765, living as a white landowner in the South, having experienced the American Revolution and then the Constitution as a teen, and only gradually coming to grips with the idea that my world would be expropriated from me because an underlying common moral evil, before I died (if I was genetically lucky enough to live to 100 without modern medicine). Yet I would have had no grasp of the idea of a technological future, that itself could be put it risk because, for all its benefits in raising living standards, still seemed to leave a lot of people behind.

(Posted: Saturday, September 9, 2017 at 9 PM EDT)

Does quoting and analyzing “provocateur” speech (like Milo’s) make more extreme ideas become acceptable to the mainstream?

Does a pundit or columnist or quasi-journalist (and now blogger) like me “do harm” by repeating (in quotes) partially reasonable but hate-motivated arguments made by political, religious or social “enemies” of people in various marginalized groups?

The basic point made by minority activists (usually but not always on the Left) is that repetition of these kinds of points tends to make them sound more mainstream.  So more moderate politicians (elected, administrative, and judicial) are more likely to believe them, resulting in more harm to the people in the groups.

I’ve always questioned the overuse of “immutability” arguments to support “gay equality”, focusing more on libertarian paradigms, emphasizing individualism and harmlessness.  But of course hyperindividuaiism runs into bigger problems with essential inherited inequality, sustainability, and human need for cohesion (starting in the family and moving out).

I have indeed played “devil’s advocate”, to the dismay of some conventional gay activists.  In the early days of the AIDS epidemic, before HTLV-III was identified, I actually communicated by letter to some “enemies” who wanted to use AIDS as an exclusion to strengthen sodomy and gay-exclusion laws.  I was very concerned about the “chain letter amplification” theory that they had (an admission of herd effects, posting Jan. 4).  In these pre-Internet days, I developed a reputation with the Dallas mainstream media and medical community for being willing to even discuss these arguments as if they had a chance of being “truth” – I felt that they could have, even though history (fortunately, for “us”, didn’t turn out that way).

The comment is often made that “well-intended” commentators have made the supposed hate speech of provocateur (“@Nero”) Milo Yiannopoulos “credible” by even answering some of his more notorious comments with contextual analysis.  Most of his more “renowned” statements are intentionally hyperbolic, satirical, and with “grains of truth”.  Some of his statements seem like legitimate reactions to protective campus speech codes, “safe zones”, media-free zones, “trigger warnings” and the idea of “microaggressions”.  It’s gotten so “bad” that I would wonder if I could talk about White and Black as opposing forces in a chess game, when writing a metaphor, without sounding like I was race-baiting.  (Chess has been important in my life, but that’s another narrative.)   Of course, Milo has gained even more notoriety when his campus events are forced into cancellation by a “heckler’s veto” as recently happened in Berkeley.

But some of his statements also seem directed at “less competitive” people in society, especially with respect to physical or biological issues.  One of the more provocative concerned fat-shaming (as here on Breitbart).  The statement suggests that being in the company of an unattractive person lowers his own testosterone.  Maybe marginally true.  I’m reminded of how the Family Research Council made a point about lower testosterone levels in heterosexually married new fathers in trying to rebut gay marriage!

The Inquisitr tried to “mainstream” Milo’s quotes with some contextual analysis, that will work with “intellectual” people but that won’t hold on the streets.   Another more leftist site was less kind, but sill provided some background (although all of it rebuttal).   I showed this second article on my phone to a young white gay man at a social event (someone lean and “attractive” by modern gay norms), and he said the found the aggregation of them in an article just to refute them itself to be offensive.

But logical conclusion from some of the posts would be, to put it mildly, to reinforce CNN’s Don Lemon’s “pull up your pants” advice.   People from marginalized groups (or marginalized further within these groups by physical issues) presumably have some responsibility to deal with the expectations of others  on their own.  That’s not directly hateful, but it putatively does set up a social climate where people will get “left out”, even eventually in being able to find and form relationships.

But provocative speech often gains more attention because of coincidental circumstances at the time it is published or disseminated.  I found this out with a major incident when I was substitute teaching bacj in 2005 (see July 19, 2916 pingback).

We’re left, of course, with the observation that authoritarian people (Donald Trump) rally their support bases around slogans and misleading half-truths, and have no use for context.

Let us remember that Lyndon Johnson made rather disdainful remarks about “the Negro” on some of his tapes.  Times do change.

Link for review of “Real Time with Bill Maher” session including Milo on HBO.

(Posted: Sunday, February 19, 2017 at 8:30 PM EST)

Update: Feb. 20, about 8:30 PM EST

There was a lot of news about Milo today, not good.  I’ll have to sort this out.  The Associated Press has a succinct summary on Bloomberg here.  The book deal was canceled (I FB-ed to him that he should self-publish), and a speaking engagement at CPAC was removed, and his future at Breitbart may be compromised.  Milo has suggested that sometimes teens (while legally below the age-of-consent of a particular jurisdiction) provoke encounters with adults to have power over the adults.  That same idea is mentioned in my DADT-III.  Yes, it does really happen in rea life.  That statement does not promote pedophilia (but maybe “ephebophilia”).

Update: March 5, about 11;30 PM

Here’s a controversial link by a University of Chicago professor (Rachel Fulton Brown); a reply on Patheos and a blog post on “loving Milo”.

Charles Murray has had a similar problem at a college in Vermont, story.

Journalists in peril, even in the U.S. now? What about the “amateurs”?


Margaret Sullivan has an important article on the safety of journalists in the Style section of the Washington Post today, Monday, July 18, 2016, “Free speech in peril, both far and near.”  She talks about the self-defense training journalists took before going to Cleveland for the RNC this week, as well as the illogic of some of the security rules in a state which allows open carry.  She wonders if this (Indians’s) baseball game (Progressive Field is nearby, replacing the old “Mistake by the Lake” of my boyhood) will end “Second Amendment 1, First Amendment 0”, very much a visiting team’s non-walkoff.


She does give a nod to the Committee to Protect Journalists and to “Pen America: The Freedom to Write”.

She also talks about the effectiveness of citizen journalism (my post here July 16). She makes the odd comment that this development adds to the number of people in peril (which in some cases could included people connected to the citizen journalists, like family, if they encounter combative enemies). She also credits citizen journalists for filling in all the details left out by the main media, “keeping them honest” (a trademarkable phrase from Anderson Cooper on CNN).  Still, her article leaves a nagging question about people like me who might not have “paid their dues” they way even Anderson Cooper (or Sebastian Junger) did early in their careers.


Why do authoritarian regimes crack down so hard on “ordinary people” as bloggers?  Do they really fear their power bases are in real peril from what the amateurs expose?  I think it is something more basic and sinister: they imprison people (like Ai Weiwei in China) or hack them (like in some attacks om Bangladesh) “just for authority” (a phrase I used as a child to protest my father), to prove that a political hierarchy imparts real meaning (if in fact that meaning is “imaginary”).

There is something disturbing, sometimes, about some of my own postings, which seem gratuitous to some people.  Why would I discuss a case of a particular casualty of a random bomb explosion in Central Park in New York on a blog post unless I was prepared “personally” to raise money for the victim?  (There is a personal sensitivity which for now I will skip, but return to later.)  Or, later, why would I present  (by YouTube embed) the rant of a “deranged” man who had attacked police recently?

In the later case, I was discussing “self-published” books and that particular assailant had created a curious or bizarre series of “self-help” books on Amazon (taken down today). So I was covering another wrinkle about self-publishing, a very important topic for me.  The danger would be that an impressionable or immature visitor finds the post, watches the video, and then doesn’t see that it is layered in a discussion of another point,, and wants to act on what the video says, out of context.  Am I responsible for that?  (The New Testament might say, well, yes;  I must become my brother’s keeper.)  Actually, this posting has a second “layered” point: to present the nature of “combativeness” in many adversaries (the part about actually “fighting back” rather than just protesting hit a nerve ending).  This person was as aggressive and intolerant as anyone in radical Islam, but came from a different source of antagonism.

All of this goes to the subject of “implicit content”, which came up in the COPA trial (2006), It came up when I was substitute teaching in 2005 with respect to the context of an on-line “screenplay” I had authored (details ).  The basic point it that I did not have an obvious “purpose” for what looked like self-defamation, so others could presume that it had been intended to incite others. There was an unbelievable set of coincidences that had set up this incident, however. The whole concept of “implicit content” could mean that, if as an amateur “citizen”, I’m not entitled to be viewed as a “true” journalist (or author), then I should be held accountable for what any unstable person does if he just “looks at the picture” and (as my mother would have said), is “given an idea” when taking a portion of a posting out of larger “layered” context, as is common in real journalism. Does the validity of speech depend on the identity of the speaker?  Maybe sometimes.


One other note: I get a little irritated by bombastic pleas from progressive news sites about their fund-raising campaigns, as if I needed them to speak for me.  I don’t need them now, but maybe some day I will.  What if Donald Trump actually wins?

(Published: Monday, July 18, 2016 at 9 PM EDT)