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)

House Judiciary Committee holds major hearing on Section 230 modifications due to sex-trafficking and Backpage

On Tuesday, October 3, 2017 the House of Representatives Judiciary Committee, Chairman Bob Goodlatte, held a two-hour hearing on a House bill HR 1865, Allow States and Victims to Fight Online Sex Trafficking Act of 2017.   The Senate has a similar bill, SESTA, Stop Enabling Sex Traffickers Act, S1693 .  Ann Wagner (R-MO) had a press release in April 2017, with this commentary. Govtrack also offers this provocative editorial.

Electronic Frontier Foundation has a blog posting by Elliot Harmon, Sophia Cope, and India McKinney. The actual session starts at about 23 minutes in.

The hearings were chaired by Steve Chabot, R-OH. Jackson Lee (D-TX) gave a long statement.

There were four speakers.  All of them recognized that Section 230 had been essential for the growth of user-generated content by relieving service providers of much potential downstream liability that would require prescreening of content before it could be published.

Chris Cox, a former SEC Chairman during Reagan, explained how Section 230 in the Communications Decency Act after a decision (Stratton Oakmont v. Prodigy) held that a service provider who tried to do any “good Samaritan” editing of user content became a publisher of the content and liable for all user content from the facility, forcing pre-screening everything. Cox explained that the law should encourage sample monitoring for content that is grossly illegal, without penalizing for content that cannot be caught when providers act in good faith.

Cox would also later explain that right now there is no “knowing” standard for most illegal content (except probably child pornography). A website operator loses section 230 protection only when it participates in creating or curating illegal content.

USA Naval Academy Cybersecurity Professor Jeff Kosseff spoke, relaying similar concerns.   He said that with the House bill as proposed now, he would advise clients not to take the risk of inviting user-generated content at all.

Catholic University Columbus School of Law professor Mary Leary testified that the sex trafficking problem had become an emergency, extending beyond very reasonable parallel concerns about promoting terrorism or providing murder for hire.   Leary works with the National Center for Missing and Exploited Children.

Also testifying was Engine executive Evan Engstrom, urging Congress be very cautious.

There was mention of the long running case, where the site was sued for allowing users to post requests discriminating in what sounds like a personal choice of roommates.

There was a suggestion that Sex Trafficking should be handled just like child pornography, where there is a knowing standard.

There was incidental mention of the Las Vegas shootings, with talk of stricture laws on gun add-ons to make them into machine guns.  There was also a suggested that any undocumented victims would not be pursued by USCIS.


(Posted: Thursday, Oct. 5, 2017 at 1:45 PM EDT)

No Substance to Be Found in Senator Harris’s Federal Bail Reform Legislation

NO SUBSTANCE TO BE FOUND IN SENATOR HARRIS’S FEDERAL BAIL REFORM LEGISLATION By Jeffrey J. Clayton, Executive Director, American Bail Coalition   (Guest Post)

First-term U.S. Senator Kamala Harris (D-Calif.) seems intent on making a name for herself. She has attempted to portray herself as the champion of bail reform by co-authoring a bill with Rand Paul (R-Ky.) to remake the system of wholesale incarceration of inmates being held in jail. What she has actually succeeded in doing is showing the public that she is nothing more than just another self-serving hack, like so many who have preceded her in Washington. There is no question that bail reform is needed in this country. Fortunately, there are numerous meaningful conversations taking place in many quarters with law makers and others who truly want to improve our system of criminal justice.

However, Harris’ recent actions along with her past history reveal that she has no true grasp of bail reform, much less a commitment to enacting genuine change. Instead, the public has now been treated to her making a grand splash by unfurling a bill that is nothing short of ridiculous. Harris and Paul’s bill is being touted as a bi-partisan plan to fix the problem of hordes of people sitting in jail as they await trial. It proposes to provide $15 million to U.S. Attorney General Jeff Sessions for a program for which he has voiced no support whatsoever. That amount of money is miniscule and beyond insufficient to fund anything of substance. Moreover, Harris whiffed on a couple of other points. Her plan calls for states to report on their progress and to ensure that their risk assessment criteria are non-discriminatory. Unfortunately, the Bureau of Justice Statistics no longer creates the reports she is demanding. In fact, that very data has already shown that contrary to her stated claims, money bail really does work to guarantee appearance in court and protect public safety. Further, Harris specified $10 million to be expended over the next three years to enact additional reforms. These reforms are already notated in the existing federal budget – but at an amount fifty to 100 times greater than the tiny amount she delusionally put forward. Taken as a whole, this piece of legislation is a joke and offensive to anyone who has ever been involved in the very serious matter of bail reform. Whether one wants to abolish monetary conditions of bail altogether or believes the system is just fine the way it is, it is painfully obvious that it is nothing more than a pathetic and embarrassing effort at grandstanding. Because it has virtually a zero chance of actually accomplishing its stated goals, the true reasons for its existence are painfully clear: keep the flow of donations coming in, while putting Harris and Paul’s names in the news. Perhaps most disturbing about the bill is Harris’ own history concerning the issue of bail. While serving as California’s Attorney General, she held contradictory positions on two virtually identical cases which dealt directly with whether or not bail in the state was legal. She chose not to defend the constitutionality of California law in the case of Buffin v. San Francisco, in which it was argued that the state discriminated on the basis of economic status or the use of a set bail schedule. But she took the opposite position in the case of Welchen v. Harris, writing in support of California’s laws. The foundation for both cases lay in the contention that the bail system created “wealth-based detention” and was, therefore, unconstitutional. In fact, Harris did next to nothing in her role as Attorney General of California to fix the highest bail schedules in the nation or otherwise repair a dysfunctional bail market that was the root of the problem to begin with. An examination of Harris’s home state illustrates exactly why her U.S. Senate bill is nothing more than fluff. California Senate Bill 10 calls for the enactment of many of the same laws Harris is pushing for the entire nation. However, no less a source than the Los Angeles Times said its implementation would cost “hundreds of millions of dollars” across a number of categories — and analysts working in the state legislature agree with this determination. It should be pointed out that this is only for California. When you realize we’re talking about bail reform for the entire country, one quickly comes to the conclusion that this will likely cost billions of dollars.

Suddenly, the utter insanity of the paltry $15 million indicated in Harris’ bill becomes crystal clear. Lest one think that it is the notion of bail reform that is under attack, it should be mentioned that Representative Ted Lieu (D-Calif.) has a bill of his own that addresses these same issues. However, Lieu’s bill is a very well-thought-out piece of legislation. Whether or not one supports what he proposes, it certainly merits consideration – in stark contrast to Harris’ effort. Perhaps most outrageously, Harris exhumes the terrible case of Kalief Browder. She claims that he is exactly the type of individual her legislation would aid. Browder was trapped in jail because he could not post bail and was so damaged from the experience that he subsequently committed suicide after he was freed. Numerous media accounts reported that Browder was unable to raise the money to be released. However, in actuality, he was on a probation hold for three years as a juvenile, making him ineligible for bail because of a prior conviction. It is completely unrealistic to believe that his family would not have been able to raise the amount of his premium — $300 total – if he had been able to legitimately meet the standards for bail. No matter how Harris wants to spin it, her ill-conceived legislation would have had absolutely no effect on the actual problems that caused Browder to be held needlessly. Yet she now exploits his tragic death to push for the expansion of preventative detention without the option of bail, wasting federal funds in the process. Ironically, it is this very type of system that led to Browder being stuck in jail, which resulted in his ultimate demise. Kamala Harris had the opportunity to effect genuine change in the bail system as California Attorney General, but did nothing but meekly play both sides of the issue. Citizens who believe her to now be the vanguard of the national bail reform movement should think again. Her efforts to convince her fellow U.S. senators to fork over $15 million to create “economic justice” is an insult to anyone who truly cares about making changes that will actually work.


About Jeffrey Clayton, Executive Director of the American Bail Coalition: Jeff Clayton joined the American Bail Coalition as Policy Director in May 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve years. Most recently, he worked as the General Counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Jeff spent six years in government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation. He is also a prior Presidential Management Fellow and Finalist for the U.S. Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, a M.S. (Public Policy) from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver

(Posted: Wednesday, Aug. 30, 2017 at 8:30 PM EDT)

Facebook, and other social media companies and publishing platforms, come under more scrutiny as “attractive nuisances” for unstable people

The New York Times has a front page story about social media perils with a blunt headline, “Video of killing casts Facebook in a harsh light”.   (Maybe, in comparison to the tort manual, it’s a “false light”).  The story, by Mike Isaac and Christopher Mele, has a more expansive title online, “A murder on Facebook provokes outrage and questions over responsibility.”

This refers to a recent brazen random shooting of a senior citizen in Cleveland Easter Sunday (on Facebook Live), but there have been a few other such incidents, including the gunning of two reporters on a Virginia television station during a broadcast in 2015, after which the perpetrator committed suicide. Facebook Live has also been used to record shooting by police, however (as in Minnesota).

The Wall Street Journal has a similar story today by Deep Seetharaman (“Murder forces scrutiny at Facebook”) and Variety includes a statement by Justin Osofsky, Facebook’s VP of global operations.  Really, is it reasonable the AI or some other tool can detect violent activity being filmed prospectively?

At the outset, it’s pretty easy to ask why the assailants in these cases had weapons.  Obviously, they should not have passed background checks – except that some may have had no previous records.

As the articles point out, sometimes the possibility of public spectacle plays into the hands of “religious enemies”, that is lone wolf actors motivated by radical Islam or other ideologies. But at a certain psychological level, religion is a secondary contributing factor.  Persons who commit such acts publicly (or covertly) have found that this world if modernism, abstraction and personal responsibility makes no sense to them.  So ungated social media may, in rare cases, provoke a “15 minutes of fame” motive along with a “nothing to lose” attitude (and maybe a belief in martyrdom).  This syndrome seems very personal and usually goes beyond the portrayal of an authoritarian religious or political message.

It is easy, of course, to invoke a Cato-like statistical argument (which often applies to immigration).  In a nation of over 300 million people (or a world of billions), instant communication will rarely, but perhaps predictably with some very low probability, provoke such incidents.  You can make the same arguments about the mobility offered by driving cars.

Ungated user content offers new forms of journalism, personal expression and self-promotion, and new checks on political powers, but it comes with some risks, like fake news and crazy people seeking attention.

For me, the history is augmented by the observation that most of my own “self-promotion” came through search engines on flat sites, in the late 90s and early 00’s, before modern social media offered friending and news aggregation.  As with an incident when I was substitute teaching in late 2005, the possibility of search engine discovery carried its own risks, leading to the development of the notion of “online reputation.”

Still, the development of user-generated content, that did not have to pay its own freight the way old fashioned print publications did in the pre-Internet days when the bottom line controlled what could be published, is remarkable in the moral dilemmas it can create.

It’s ironic. How social media allows us to experience being “alone together”, but makes up for it by encouraging individuals to ask for help online by crowdfunding the meeting of their own needs – something I am usually hesitant to jump into.

This is a good place to mention a new intrusion onto Section 230, a bill by Anne Wagner (R-MO), “Allow States and Victims to Fight Online Sex Trafficking Act of 2017”, partly in response to the Backpage controversy, congressional link here. No doubt discussion of this bill will cause more discussion of the expectations for proactive screening by social media.

There’s an additional note: the perpetrator of the Cleveland incident has ended his own life after police attempted to apprehend him (Cleveland Plain Dealer story).

(Posted: Tuesday, April 18, 2017 at 1 PM EDT)

Update: Thursday, April 27, 2017 at 10:45 AM EDT

There has been a major crime deliberately filmed on Facebook Live in Thailand, story here.

Facebook has announced plans to hire 3000 more people to screen complaints for inappropriate content.  These jobs probably often require bilingual skills.

“Law and Order”: Will Donald Trump honor his own words? “Give unto Caesar” is just part of the law


A good friend on recently posted on Twitter that if the new president does do something really “Hitler-y” he would have to “put down” his “everyday life and do something.”

A few more friends, all of whom were the kind of people who would have survived Donald Trump’s boardrooms on the Apprentice and gotten hired (Trump really would like everyone I am contemplating writing this – all of them are “winners” in his worldview) used rather desperate language and four-letter words (atypically for them) early AM November 9 after Trump had been announced the Electoral College winner.  One European friend was flying back to LA exactly while the “whole world was collapsing” in those few hours of Election Night.   (OK, one friends stays focused on the Fighting Irish, San Francisco Giants, and Buffalo Bills.  And Jimmy Kimmel says he would be glad to be president with the Chicago Cubs’s Kris Bryant as vice president, too young at 24.)

Now, almost everybody will “give Trump a chance”.  We have no choice.  David Brooks has already predicted impeachment or resignation within a year.  That would leave us with Pence.  It seems right now that Paul Ryan is the adult in the room (or maybe Mitt Romey if he joins).

Seriously, anyone’s moral compass has to contemplate that in rare cases, it’s necessary to break the law.  I’ve gotten used to living in a “system” that is stable, and where Law and Order are continuous.  Trump indeed mentioned the NBC crime show at his Republican Convention speech in Cleveland.

So, yes, if I do somehow become involved in assisting, say, asylum seekers, I’m normally very concerned that everything I do is lawful.  That requires some due diligence on my part.  Indeed, volunteering in controversial areas requires personal risk assessment by the volunteer, and transparency from the organization recruiting help.  That isn’t always there, as identity politics gets in the way.

In a comment to my posting Nov. 17, I outlined a scenario where it’s possible that more of today’s undocumented people wind up homeless and charities recruit hosts to house them.  That obviously raises legal questions.  So does the idea of arranging for someone to come here to ask for asylum.  Yes, there are some harrowing stories on the Internet where this has been done (and they’re not fake news).  I can still say that right now, it’s my intention to always comply with the law as best I know it.

But can I promise that I would never break the law in every conceivable circumstance?  No.  A person’s moral compass has to allow for the idea that a breakdown can happen.  (Just read “Survival Mom” on Facebook.)   Imagine one is a Jew living in Germany around 1934.  Is it right to “break the law” to protect his family?  Of course.  And he or she would need some resilience or purpose, or else be the first one shot or taken to the camps.  Obviously, there can be times with illegal resistance is necessary.  Imagine being black in Alabama around 1963.  No one really gets to choose this.  In fact, an older LGBTQ person would find “never break the law” to be a canard indeed, as we often broke sodomy laws in decades past, with no thought that we were compromising real “morality.”

Let’s hope that the new president respects his own words – law and order – and the Constitution.  Right now, before inauguration, he seems to be on probation already.

(Posted: Sunday, Nov. 20, 2016, at 6:15 PM EST)

Retail chains have policies forbidding employees to resist crime: is this a good idea?


Many retail chains have employment policies requiring clerks to abstain from resisting robbery attempts at their premises.  Most will terminate employees who do so.  The policies have a lot to do with liability lawyers and insurance companies, who point out that a clerk who resists could put customers in jeopardy and other employees.


There was an incident recently in Frederick, MD where a clerk was fired after successfully disarming a violent intruder, but then, because of popular support, reinstated.  Jeremy Arias has a story in a local newspaper (paywall).


It’s a good question, too, how consumers should behave if encountering such a situation.  There was a spectacular incident in De Soto, TX, south of Dallas, where a consumer shot an armed robber (story by Tom Steele).  The government has generally refrained from issuing specific advice.  Maybe that’s a good thing, because of a consumer’s behavior is unpredictable (if he is a “good guy with a gun”) that might help act as a deterrent.  That’s also true about policies for employees.  There is a community, herd effect beyond a franchise owner’s understandable desire to avoid liability exposure. If some clerks are armed and able to protect the premises and unpredictably so, some criminals might be deferred from trying.  I think Ben Carson made that point in one of the early Republican debates.

Many minimum wage or low paying jobs expose workers to danger from crime.  Think about it.  What would it be like to deliver newspapers by car in the wee hours of the morning in bad neighborhoods.

I have my own  short fuse on this sort of thing.  One time I quit a “telemarketing” job in late 2003 after someone I called after 9 PM threatened to sue me personally – zero tolerance.  I have said that if I am caught in public in a hostage situation, my own life, as an individual cannot be bargained for against someone else’s (policy ).  But even that, if widespread, could open a door to some kinds of attacks.

I write this returning home from a mountain day trip, as Donald Trump finishes his dark-toned speech about law and order.


(Published: Thursday, July 21, 2016, 11:55 PM EDT)