Saturday, May 17, 2008

The Scarlet Letter of the Law: The Adam Walsh Child Protection and Safety Act of 2006

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Legislation
November 2006, Page 59
By Kyle O'Dowd

Did you see his name in the local paper?
Stole a tin of beans,
From a cut-priced grocery store.
The judge said he must pay,
So he put him on probation,
And the paper gave his name.

The Kinks,
Did You See His Name?

Written by Ray Davies
From the album The Kink Kronikles
(Reprise 1972)

The protagonist in Ray Davies’ cautionary tale goes on to lose his job and take his life, illustrating the intractable conflict between punitive publicity and offender reintegration. From pillory to police blotter, methods for subjecting offenders to public humiliation tend to keep pace with evolving modes of public dissemination. It is not surprising, then, that authorities have harnessed the power of the Internet to disseminate information about lawbreakers. And given public attitudes toward sexual offenders, these individuals were destined to be the primary targets. Still, some states have been more judicious than others in their use of this mechanism, utilizing risk-assessment procedures that provide some modicum of due process and take into account individualized assessment by treatment professionals.

As frequently occurs in the criminal context, federal mandates may now effectively preempt such state diversity and innovation. On July 27, 2006, the 25th anniversary of Adam Walsh’s disappearance, the President signed the Adam Walsh Child Protection and Safety Act. The core provisions of the bill establish minimum requirements for statewide sex offender registration and notification. The law specifies the scope and duration of registration requirements, the information that must be collected and included in the states’ registries, the scope of community notification (including Internet notification), and the procedures for updating and sharing offender information. Leaving very little to the states’ discretion, the law further requires that the states provide a criminal penalty with a maximum sentence greater than one year for failure to comply with the demanding registration requirements.

Inclusion and Classification of Sex Offenders
Much of the legislative debate focused on how wide to cast the net — that is, which “sex offenses” would trigger the law’s registration and notification requirements. The term sex offense has been used to describe a broad range of conduct: consensual and nonconsensual, nonviolent and violent, petty and serious. A related and uniquely troubling debate focused on whether the law’s requirements would apply to juvenile adjudications.

The negotiators settled on a general definition (subject to two exceptions) that covers criminal offenses with an element involving sexual acts or contact. This is supplemented by a list of specified offenses against minors and specified federal offenses. Two types of consensual offenses are excluded: (1) consensual sexual conduct with an adult and (2) consensual conduct with someone at least 13 years old if the offender is not more than four years older.

NACDL, juvenile justice advocates and treatment professionals vigorously opposed measures — such as those approved by the House in an earlier version — to include juvenile adjudications in the registries. Many states exclude juvenile adjudications from their registries, a policy choice that is consistent with youth sex offenders’ responsiveness to treatment and concomitant low recidivism rates (3 to 8 percent). Advocates on the other side used well-publicized assaults to obscure these important distinctions between adult and juvenile sexual abusers. The final compromise requires registration if the youth was at least 14 years old and the offense was comparable to, or more severe than, aggravated sexual abuses (e.g., forcible rape).

While incompatible with the individualized risk assessment employed by some states, the final bill does not adopt a completely one-size-fits-all approach. Registration and notification burdens are determined based solely on the offense, but the array of covered sex offenses is divided into thee tiers based on seriousness: (1) Tier III is the most serious classification and includes felony sex offenses comparable to, or more severe than, aggravated sexual abuse, abusive sexual contact with a minor under age 13, non-parental kidnapping of a minor, and certain second offenses; (2) Tier II includes felony sex offenses against minors that are comparable to, or more severe than, inter alia, sex trafficking, solicitation of child prostitution, production or distribution of child pornography, and certain second offenses; (3) Tier I is the least serious classification and includes all other sex offenses minus the excluded consensual conduct described earlier.

State Registry and Web Site Requirements
Sex offenders must register, and keep their registration current, in their states of residence, school and work; initially, they must also register in their states of conviction. Initial registration is required before completing the prison sentence or, if not imprisoned, within three business days of being sentenced. Before release or after sentencing, states must explain the registration duties, obtain a signed statement of understanding, and ensure that the offender is registered. Herein lies the rub: there is no accommodation for mentally retarded or ill offenders who are incapable of comprehending any such “statement of understanding” or, for that matter, complying with the registration requirements.

The law sets forth a detailed list of offender and offense-related information that the states must collect and include in the registry. States must also make this information available on the Internet, except for victim identity, offender Social Security number, and arrests without convictions. Also established are a national sex offender registry and Web site, to be maintained by the Attorney General, which will include each person in the state sex offender registries.

Three critical variables — the duration of registration, the frequency of verification, and Web site eligibility — depend on the offender’s tier level (as determined by the offense). Tier I offenders must verify their registration in person every year for 15 years (reduced to 10 years for a clean record); Tier II offenders must appear every six months for 25 years without exception; Tier III offenders must appear every three months for life (reduced to 25 years for a juvenile adjudication and a clean record). Covered individuals must appear in at least one jurisdiction to update their registration within three business days of a change in name, residence, employment, or student status. State Web sites may exclude certain Tier I offenders (if the offense was not a specified one against a minor) as well as employer and school names.

Community Notification Program
In addition to this so-called passive notification, the states must implement active community notification programs. Immediately after an individual registers or updates his/her registration, the state must provide the information to various individuals and entities, including: (1) the Attorney General; (2) law enforcement agencies, schools and public housing authorities in each area where the individual resides, works, or attends school, (3) volunteer organizations having contact with minors; and (4) any organization or individual requesting notification.

Effective Date and Retroactivity
You may be wondering when these requirements will impact former and current clients. There is no exact deadline or cutoff. Participating states have until at least July 2009 to substantially implement the law’s requirements, but the ultimate deadline will depend on a number of factors.

First, the Attorney General has two years to develop and make available software that will enable the states to establish and operate the required registries, Web sites, and community notification programs. States must implement the law’s requirements within one year of that software’s availability or within three years of the law’s enactment, whichever is later.

Second, the law prescribes certain funding reductions and establishes grant programs to induce the states to comply, but some states may determine that the costs of compliance outweigh the benefits. In that case, the state’s existing sex offender laws will continue to govern.

Finally, the Attorney General must determine the extent to which the law will apply retroactively to individuals convicted before the law’s enactment or implementation. See Smith v. Doe, 538 U.S. 84 (2002) (holding that retroactive application of the Alaska Sex Offender Registration Act did not violate the ex post facto clause).

The lengthy enactment is replete with other significant provisions, some of which might merit discrete Champion articles (calling volunteer authors). The law establishes several new and enhanced sentences, including mandatory minimums, for various registration-related and sex offenses. It modifies the Federal Rules of Evidence so as to require that child pornography remain in the custody of the government or court and prohibits reproduction by defense counsel as long as reasonable access is provided. It also creates new procedures regarding federal civil commitment of sexually dangerous persons, and establishes a grant program to encourage state civil commitment laws that meet certain federal requirements.

NACDL mobilized a diversity of groups to fight these bills, and we succeeded in ameliorating some of the worst proposals. We were also successful in opposing efforts to attach unrelated crime measures to the final bill. Of course, this is no consolation to the individuals (and their innocent relatives) caught in the ever-tightening grip of sex offender regulations, or the victims of future assaults that might have been avoided if resources had been allocated more wisely. To vindicate these interests, NACDL and its members must continue to be the voices of reason and champions of one of the most unpopular causes of our time.



National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org


How the Adam Walsh Act Restricts Access to Evidence

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January /February 2007, Page 12

By Ian N. Friedman; Kristina Walter

On July 27, 2006, the 25th anniversary of the abduction and murder of Adam Walsh,1 President George W. Bush signed the Adam Walsh Child Protection and Safety Act2 (“Adam Walsh Act” or “Act”). The statute is the most recent addition to the array of legislation and laudable programs aimed at combating child exploitation by dangerous sexual offenders.3 The Adam Walsh Act has received praise for its expansion of the National Sex Offender Registry by incorporating data from state sex offender registration systems and for its grant of additional resources for Internet Crimes Against Children Task Forces. What has received little media attention is the buried provision in the Act that undermines a criminal defendant’s fair trial and due process rights.

The purpose of this article is to examine § 3509(m) of the Adam Walsh Act and how it impedes a defense attorney’s ability to prepare for a trial involving charges of possession of child pornography. The article will examine the rationale for the amendments to 18 U.S.C. § 3509 and will discuss the use of experts in the defense of computer-based child pornography cases. Finally, the article will highlight the legal problems posed by § 3509(m) and comment on current case law, including the pending case of United States v. Knellinger.4

Rationale for the Amendments
The Adam Walsh Act amended § 3509 of Title 18, United States Code by adding subpart (m), which reads as follows:

(1) In any criminal proceeding, any property or material that constitutes child pornography shall remain in the care, custody, and control of either the Government or the court.

(2) (A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography, so long as the Government makes the property reasonably available to the defendant.

(B) For purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

In effect, § 3509(m) creates an uneven playing field by forcing defense attorneys to prepare for trial with highly restricted access to material evidence. Section 3509(m) directs trial judges to disregard discovery rules and to define the parameters of what constitutes “reasonably available” evidence.

One reason § 3509(m)’s restrictions on the availability of evidence are so troublesome is the flawed reasoning underlying its passage. The congressional findings in support of § 3509(m) state that “every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse,” and therefore, “it is imperative to prohibit the reproduction of child pornography in criminal cases.”5 What Congress failed to address, or even to consider, is the fact that assuming every viewing of an image does inflict new harm on the victim(s), the harm is the same regardless of where the viewing occurs — be it a government facility or a defense attorney’s private office.6

In United States v. Knellinger, a case pending in the Eastern District of Virginia, defense counsel attacked the constitutionality of § 3509(m) of the Adam Walsh Act. In November 2006, Judge Robert Payne ordered an evidentiary hearing in which defense experts testified about the difficulties created by being required to examine digital evidence in an FBI lab or other government facility. In addition to hearing testimony from defense experts, the court solicited amicus briefs from various organizations.7 At the conclusion of the hearing, the judge aptly summarized the circumstances surrounding the enactment of § 3509(m). He stated:

Congress needs to face things when [they] pass statutes, and the defendants, no matter what the charge is . . . have rights, and here we have a statute that Congress gave no apparent thought to when it passed the statute. . . . This little section was slipped in right at the last minute, according to the chronology, and there’s not a thing to indicate they paid any attention to it. This is serious.8

Experts for the Defense
In order to fully understand the implications of § 3509(m) and how it effects a defendant’s ability to defend against child pornography charges, one must understand the common issues in computer-based child pornography cases and how a defense attorney begins to mount a defense. The two most frequent and critical defenses in computer-based child pornography cases examine whether an image depicts an actual child or a digitally-altered adult and whether the defendant knowingly possessed or received the image.

Whether an image depicts an actual child rather than a digitally-manipulated adult is an important consideration for defense counsel in light of the U.S. Supreme Court’s holding in Ashcroft v. Free Speech Coalition.9 In Ashcroft, the Court held that if an image purporting to depict a minor does not depict an actual minor, the image does not constitute child pornography, and therefore, presumptively receives First Amendment protection.10 The federal statute governing the receipt and distribution of child pornography now sets forth an affirmative defense based on the fact that the alleged child pornography was not produced using any minor(s).11

With respect to whether a defendant knowingly possessed or received child pornography, attacking the mens rea is critical because knowingly is an essential element of every child pornography charge under 18 U.S.C. § 2252A. Amid the popularity of Internet chat rooms and peer-to-peer file sharing programs, there are a multitude of legitimate ways by which an image of alleged child pornography can appear on a hard drive without the user’s knowledge. Indeed, it is not uncommon for defense experts to uncover that certain images were downloaded onto a defendant’s home computer while he or she was away at work.

The crux of mounting such a defense, however, is the ability to involve experts in the case from the start. Simply put, computer-based child pornography cases cannot be successfully defended without the aide of experts, which is precisely why the restrictions created by § 3509(m) of the Act are so problematic.

Any comprehensive defense of computer-based child pornography cases must involve a computer forensics examiner and a digital imaging expert. The sole purpose of a computer forensics expert is to determine how an image came into existence on a hard drive or other electronic storage device. A computer forensics examiner can also determine the precise time at which an image appeared on a hard drive and whether a computer user tried to delete the image. To conduct such an analysis, a forensics examiner needs to run software on the hard drive in question.

The two most widely used forensics software programs are EnCase and Forensics Toolkit. Using these programs, a forensics examiner can index data and search a computer for keywords associated with child pornography and hash values. A hash value consists of a unique series of 26 numbers and letters used to identify an image.12 An average computer forensics examination can take up to 50 hours and requires special equipment that only forensics examiners own. Upon completion of a computer forensics examination, the examiner typically collaborates with additional experts, including a digital imaging expert.

A digital imaging expert is necessary to authenticate an image or video, both in terms of its recording and content. With respect to content, an imaging expert may be able to detect the extent to which an image has been manipulated. With ubiquitous software programs such as Photoshop, images of adults can be morphed to such an extent that the images ostensibly portray children. In most instances, whether an image portrays a real or virtual child cannot be determined by the naked eye or even by a photographic expert.13 As an initial step in the analysis, a digital imaging expert may compare the image in question with photos from the National Center for Missing and Exploited Children database. The expert’s primary job, however, is to conduct a frame-by-frame analysis on the image to search for inconsistencies evidencing digital manipulation. Common inconsistencies include conflicting content, distorted scale, imprecise shadows, and discrete pixel edges indicative of cutting and pasting.14

It is important to note that the difficulties created by § 3509(m) are not limited to the realm of experts who rely on electronic equipment to carry out their analyses. Section 3509(m) also presents obstacles for psychiatric and medical experts upon whom defense counsel may call for establishing applicable affirmative defenses and for preparation of sentencing.

An Uneven Playing Field
With an overview of the defenses available and the types of expert analysis required to successfully defend computer-based child pornography charges, it should become readily apparent the extent to which § 3509(m) hinders trial preparation. The goal of this section is to provide an overview of the various legal arguments one can raise when challenging the constitutionality of the provision. Presently, the arguments against § 3509(m) fall into five broad categories: Criminal Rule 16, work product and attorney-client privilege, defense attorneys as officers of the court, due process, and fair trial rights.

Federal Rule of Criminal Procedure 16(a)(1)(E) provides that the government must permit a defendant to inspect and copy information the government possesses if the information is material to the preparation of a defense. In stark opposition to the dictates of Rule 16, § 3509(m) expressly prohibits the copying of evidence material to a defense in child pornography proceedings. To support the restrictions on defense counsel created by § 3509(m), government attorneys regularly rely upon United States v. Kimbrough,15 which declined to find that Rule 16 permits the copying and distribution of child pornography for defendants.

Despite the outcome of Kimbrough, several district courts have reached contrary conclusions. For example, in United States v. Frabizio,16 the court granted the defendant’s motion for production of discovery and held that the defendant was entitled to obtain copies of the images seized in order to enable defense counsel to investigate how and when the images came to appear on the computer.17 This holding is consistent with the Rule 16 Advisory Committee Notes, which explain that “broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to [a] plea . . . and by otherwise contributing to an accurate determination of the issue of guilt or innocence.”18 Plainly, by requiring material allegedly constituting child pornography to remain in the control of the government, § 3509(m) frustrates the rules governing discovery and makes it exceedingly onerous to prepare a defense.

In addition to contravening Rule 16, § 3509(m) jeopardizes attorney work product for two reasons. First, if a computer forensics examiner is forced to carry out his examination and analysis at a government facility using government-owned computers, any tests conducted will leave on the computer’s hard drive a roadmap of the examiner’s investigation. Second, as has been pointed out by defense attorney H. Louis Sirkin, when experts are forced to conduct their analyses at a government facility, the government becomes privy to whom defense counsel is working with and the government can anticipate and decipher the direction of the defense strategy.19 In the early stages of the litigation, if the government does not have to reveal the experts with whom it is working, why should the defense? Furthermore, if the government knows that defense counsel has contacted an expert, but does not intend to call the expert to testify, further complications and concerns for the protection of confidentiality arise.20

Another problem raised is that § 3509(m) ignores the fact that defense attorneys are officers of the court. Section 3509(m) implicitly makes an unwarranted attack on the trustworthiness of defense attorneys. The preamble to the Model Rules of Professional Conduct states that “a lawyer is a representative of the client, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”21 Although a defense attorney exists as an officer of the legal system, § 3509(m) requires material constituting child pornography to remain in the control of either the government or the court. The statute expressly precludes a defense attorney from possessing the evidence.22 Section 3509(m) excludes defense attorneys from possessing material evidence despite the fact that in litigation to date, government attorneys have failed to present any evidence of defense attorneys who have lost or released images of child pornography in circulation.23 In essence, § 3509(m) presupposes that an agent of the government will adhere to a law governing the circulation of contraband more than a defense attorney.

In terms of a defendant’s due process rights, by restricting a defendant’s access to material evidence, § 3509(m) of the Adam Walsh Act creates an uneven playing field. According to the Supreme Court, “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”24 By limiting defense counsel’s access to critical evidence and by requiring defense experts to conduct their analyses in government facilities, § 3509(m) creates endless obstacles thwarting trial preparation.

Section 3509(m) transforms trial preparation into a costly and unduly burdensome exercise. Under the current state of the law, if defense counsel wishes to utilize experts, the experts must travel to government offices with fragile equipment not conducive to transport. When an expert’s fees are combined with the fees associated with travel time and the cost of transporting and reassembling equipment, the cost of independent analysis can easily exceed $100,000.25 Experts who testified at the Knellinger hearing in November 2006 indicated that the conditions created by § 3509(m) have caused them to reevaluate their willingness to become involved in defense work for criminal cases.26 An additional burden experts will encounter when they seek to collaborate with other experts is the difficulty of coordinating their schedules to comply with the limited availability of evidence at a government facility. On the whole, the time restrictions and inconvenience imposed by having to work in a government facility make defense work undesirable for experts.

Besides creating obstacles for defense counsel and experts, § 3509(m) makes it exceedingly difficult to have an incarcerated defendant view the evidence. Having the defendant view the images that he or she is charged with possessing is critical since counsel can learn a great deal about whether a client knowingly possessed an image just from the client’s reaction upon seeing it. The client’s reaction often reveals whether the client has previously seen the image. Moreover, having the client view the evidence facilitates a meaningful discussion about the possibility of a structured plea agreement.

Presently, if defense counsel wishes to review the evidence with the client, counsel must arrange for the client to be transported to a government facility. If arrangements cannot be made, defense counsel is forced to forgo this significant element of trial preparation. Assuming arrangements can be made to have the incarcerated client transported to the location of the evidence, defense counsel faces the difficulty of speaking with a client in an intimidating environment that fosters neither trust nor candor.

The problems created by § 3509(m) continue to multiply after trial has begun. Throughout the course of trial, witnesses testify and strategy changes. For these reasons, any prudent defense counsel constantly wants to consult the evidence, which is not possible under § 3509(m). Even if the government proposes holding the digital evidence at the court in a workroom with late-evening access, it is unlikely that such access will be comparable to that afforded to a defense attorney who possesses a copy of the evidence in his or her own office. Under these conditions, not only is counsel hindered from reviewing evidence, but the likelihood of being able to review the evidence with experts also becomes exceedingly difficult.

A final realm in which § 3509(m) of the Act creates problems is the sphere of Sixth Amendment fair trial rights. Pursuant to the protections afforded by the Sixth Amendment, a defendant may confront witnesses against him and avail himself to compulsory process for obtaining witnesses.27 In analyzing fair trial rights in the case of Kentucky v. Stincer, the U.S. Supreme Court stated that a “rule that precludes a defendant from access to information before trial may hinder that defendant’s opportunity for effective cross-examination at trial, and . . . such a rule equally may violate the Confrontation Clause.”28 Section 3509(m) clearly limits a defendant’s access to material evidence, and as such, undermines the Confrontation Clause. Restricted access to a hard drive or other storage device containing purported child pornography hampers defense experts’ ability to verify the sufficiency of the evidence and integrity of the government’s investigative techniques, which in turn limits defense counsel’s ability to effectively cross-examine government witnesses.

Not only does § 3509(m) infringe upon a defendant’s right to confront witnesses, but it also erodes a defendant’s right to compulsory process. The Compulsory Process Clause enshrines a defendant’s right to present his version of the story — a right that is a critical feature of our adversarial system. “The right to offer the testimony of witnesses, and to compel their attendance . . . is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.”29 Counsel for a defendant cannot thoroughly prepare a defense under the conditions created by the enactment of § 3509(m). Taking into account the due process considerations discussed above, coupled with fair trial concerns, it becomes clear that § 3509(m) disproportionately impacts a defendant’s ability to defend against computer-based child pornography charges.

Examination of the conflict between § 3509(m) and a defendant’s Sixth Amendment fair trial rights leads to a discussion of United States v. Johnson, the first published opinion to address the constitutionality of the provision.30 In Johnson, the Iowa district court held that § 3509(m) did not facially, or as applied, violate the defendant’s constitutional right to a fair trial.31 The court rested its decision on the notion that § 3509(m) does not limit a defendant’s ability to introduce evidence. According to the court, the statutory provision withstands constitutional attack because it does not limit what a defendant may introduce in trial, but only who may possess the evidence to be introduced.32 What the Johnson court failed to recognize is the fact that who possesses the evidence in computer-based child pornography offenses directly bears on one’s ability to prepare for trial. A defense attorney who does not possess a copy of the hard drive containing the images of alleged child pornography faces a nearly insurmountable obstacle in presenting exculpatory evidence and preparing to cross-examine government experts with virtually unlimited access to the evidence in dispute.

Despite the outcome of Johnson, at the conclusion of the evidentiary hearing in the Knellinger case, the court provided a possible glimpse into its pending ruling on the defense team’s challenge to the constitutionality of § 3509(m). The judge commented that “the statute provides a vehicle by which . . . this whole thing can be dealt with, and that is if the government doesn’t provide ample opportunity for examination, then a copy can be ordered.”33 The court then stated that ample opportunity may perhaps consist of providing a location equipped with all the equipment that the experts would use when conducting examinations at their own offices.34 Forgoing any speculation at this time, the authors will keep the NACDL membership apprised of any developments in the Knellinger matter.

In conclusion, it remains important for defense attorneys to rally against § 3509(m), which appears to be nothing more than a knee-jerk political reaction to a contentious issue presently dominating media attention. Section 3509 ignores the fact that defendants in our justice system are cloaked with a presumption of innocence until proven guilty. Regardless of the heinous nature of charges involving child pornography, defendants are entitled to the fairness inherent in the American legal system.



National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org



Notes
1. Adam Walsh is the son of John Walsh, host of the acclaimed show America’s Most Wanted. A stranger abducted six-year-old Adam from a Florida shopping mall. Two weeks later, authorities found Adam’s remains 100 miles away from his home. Following the brutal attack on their son, John and Reve Walsh became advocates for legislation to protect children.

2. Pub. L. 109-248, 120 Stat. 587, 629 (July 27, 2006).

3. Other federal efforts to protect the safety of children include the PROTECT Act, which is most widely known for its expansion of the use of Amber Alerts; Operation Predator, a program aimed at arresting predators; and Project Safe Child, a Department of Justice program aimed at assisting in the investigation of crimes against children carried out by means of the Internet. 2006 U.S.C.C.A.N. S35, 2006 WL 3064686 (Leg. Hist.).

4. No. 3:06-CR-126 (E.D. Va.). In this case, FBI agents raided the defendant’s home and seized his computer. The government charged the defendant with one count of transportation of child pornography, five counts of receipt of child pornography, and one count of possession of child pornography.

5. H.R. 4472, 109th Cong. §601(2)(D)(2006). The Supreme Court recognized this principle in New York v. Ferber, 458 U.S. 747, 759 (1982).

6. Testimony of H. Louis Sirkin, Evidentiary Hr’g Tr.107: 6-9 (Nov. 6, 2006), United States v. Knellinger, No. 3:06-CR-126 (E.D. Va.).

7. Briefs were provided by the National Association of Criminal Defense Lawyers, the Federal Public Defender’s Office of Richmond Virginia, and John Douglass, a professor at the University of Richmond School of Law.

8. Judge Robert Payne, Evidentiary Hr’g Tr. 269: 1-10, supra note 6.

9. 535 U.S. 234 (2002) (Kennedy, J.).

10. The image could still be found to be obscene, in which case it falls outside the scope of First Amendment protections and likely constitutes contraband.

11. 18 U.S.C. § 2252A(c)(2).

12. The National Center for Missing and Exploited Children maintains a database of hash values for known images of child pornography.

13. See United States v. Frabizio, 445 F.Supp.2d 152, 170 (D. Mass. 2006).

14. For an easily readable overview on some of the technology involved in digital imaging, see Frabizio, supra note 13. The Frabizio decision involved the defense’s Daubert challenge to the government’s digital imaging expert. The court held that the government expert’s methodologies were not sufficiently reliable to withstand the Daubert test.

15. 69 F.3d 723 (5th Cir. 1995).

16. 341 F.Supp.2d 47 (D. Mass 2004).

17. See also United States v. Hill, 322 F. Supp.2d 1081 (C.D. Cal. 2004) (finding that the defendant would be “seriously prejudiced” if his expert and counsel did not have copies of the 1,000 images of child pornography discovered on zip diskettes taken from the defendant’s home).

18. Rule 16 Advisory Committee Notes, 1974 Amendments, quoted in United States v. Cadet, 423 F.Supp.2d 1, 3 (E.D.N.Y. 2006).

19. Testimony of H. Louis Sirkin, Evidentiary Hr’g Tr. 96: 10-14, supra note 6.

20. Id. at 99: 7-20.

21. Model Rules of Professional Conduct, preamble (1984). See also Powell v. Arkansas, 287 U.S. 45, 73 (1932) (holding that defense attorneys are officers of the court and have a duty to render service to the accused).

22. 18 U.S.C. § 3509(2)(A).

23. Judge Robert Payne, Evidentiary Hr’g Tr. 263: 10-15, supra note 6.

24. Chambers v. Mississippi, 410 U.S. 284, 294 (1973), quoted in Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers, United States v. Knellinger, No. 3:06-CR-126, page 7.

25. See, e.g., Testimony of Thomas Owen, Evidentiary Hr’g Tr. 163-64: 12-5, supra note 6.

26. See, e.g., Testimony of Mark Vassel, Evidentiary Hr’g Tr. 58:21-24, supra note 6.

27. U.S. Const. amend. VI.

28. 482 U.S. 730, 738 n.9 (1987)(Blackmun, J.), quoted in Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers, supra note 24, at 2. The authors of this article wish to acknowledge the NACDL amicus brief as an invaluable source in formulating a Sixth Amendment fair trial argument in the Knellinger case.

29. Washington v. Texas, 388 U.S. 14, 19 (1967), quoted in Taylor v. Illinois, 484 U.S. 400, 409 (1987).

30. 2006 WL 2796828 (N.D. Iowa Sept. 27, 2006).

31. Id.

32. Id. at *3.

33. Judge Robert Payne, Evidentiary Hr’g Tr. 266-67: 24-3, supra note 6. In a separate matter, United States v. O’Rourke, No. CR 05-1126-PHX-DGC, pending before the district court in Arizona, the Assistant U.S. Attorney expressed agreement with the possibility of the court ordering a copy of the hard drive in question if the government does not afford “reasonable access” in accordance with § 3509(m).

34. Judge Robert Payne, Evidentiary Hr’g Tr. 269: 20-24, supra note 6.


Sex Offender Laws Run Amok

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Inside NACDL
April 2007, Page 39

Sex Offender Laws Run Amok
By Norman L. Reimer

When America’s politicians latch on to a “law and order” issue, watch out! Their capacity to demagogue an issue, exploit public fears, and enact draconian legislation is limitless. We saw this with the war on drugs1 and the war on terrorism. And now we see it with the proliferation of sex offender laws that impose far-reaching collateral consequences. They are often based on myth and emotion, unsupported by empirical research and broadly applied, and are indifferent to the facts of the particular case.

Last month, The Champion reported that NACDL’s recent affiliate survey disclosed that 58 percent of the respondents identified sex offender legislation as their primary concern.2 This concern is wholly justified. Scarcely a day goes by without new initiatives to enhance mandatory penalties, extend sex offender residency restrictions, impose notification and registration requirements, and provide indefinite “civil” commitment for whole categories of offenders who have already served prison sentences.

NACDL recognizes that sex offenses and child sexual abuse cause enormous pain and suffering to victims and their families. Appropriately harsh penalties for serious offenders are justified. But casting a broad net of collateral consequences — without distinguishing between offenders who are genuinely at risk of recidivist behavior and those who pose no continued risk at all — offends due process, impedes an offender’s reintegration into society, and imposes enormous financial and social costs. In an alarming number of cases, these increasingly harsh laws promote vigilantism, destabilization and de facto life sentences that are well in excess of the maximum criminal penalty.

In recent weeks, we learned of two new proposals, one federal and one state, that will propel the hysterical approach to sexual offenses to new extremes.

In New York State, where efforts to adopt civil confinement have long been resisted, Governor Eliot Spitzer reached agreement with legislative leaders to enact one of the most far-reaching civil detention laws in the nation.3 New York is the 20th state to adopt civil commitment procedures. The new legislation expands the law to include juveniles and nonviolent offenders, and includes an entirely new category denoted as a “sexually motivated felony” that, incredibly, applies to those who intended to commit a sex crime but did not.4

Significantly, there is an emerging recognition that civil commitment is costly, arbitrary, and largely ineffective. In an extensive three-part series, the New York Times reported that civil commitment can be up to four times as costly as imprisonment, often with private entities obtaining huge contracts and providing little treatment.5 This investigative report also questions the accuracy of risk assessment tools and the ability of various treatment practices to materially reduce recidivism. Additionally, there is concern that some so-called experts who testify at commitment trials are not subject to comprehensive ethical and training requirements. Indeed, some of the treatments, such as the use of a penile plethysmograph, which purports to measure the circumference of the penis while the subject is shown provocative photographs, evoke laughable images more reminiscent of a Woody Allen movie than science.

There is also a significant new federal initiative. Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA), contains a comprehensive revision of the national standards for sex offender registration and notification. Among other provisions, SORNA would establish a whole new regimen of federal penal sanctions for noncompliance with registration requirements. Effective Feb. 28, 2007, Attorney General Alberto R. Gonzales issued an interim rule finding that SORNA registration and notification requirements will apply retroactively to all covered sex offenders, even though their convictions may have preceded the enactment of the law. This will have profound consequences for countless thousands throughout the country. Though the attorney general dispensed with the prior notice provisions of the Administrative Procedure Act, there remains a public comment period before the rule becomes permanent.

NACDL will remain in the forefront of efforts to resist irrational approaches to sex crimes that are not predicated on facts and sound scientific findings or that unjustifiably eviscerate constitutional rights. At the Midwinter Meeting in late February, NACDL’s Board of Directors adopted a comprehensive sex offender policy statement.6 It was the result of months of work by the Sex Offender Policy Task Force, ably chaired by Michael Iacopino, a distinguished New Hampshire attorney. The policy statement embodies seven core principles:

I. NACDL opposes the death penalty as a sanction for sex offenders.

II. NACDL opposes mandatory minimum sentences.

III. NACDL opposes sex offender registration and public notification laws. If employed at all, sex offender registries should classify sex offenders on the basis of risk, with full due process of law. Public/community notification provisions should be reserved for “High Risk” sex offenders.

IV. NACDL opposes civil commitment laws because they punish offenders who have paid their debt to society. If employed at all, sex offender civil commitment statutes should provide a full panoply of due process rights including the right to a jury trial, the right to confront adverse witnesses, the right to present evidence, rules of evidence, a high burden of proof on the government, and a process for review and discharge which levels the burden squarely on the government.

V. NACDL opposes residence restrictions because such laws and ordinances do not provide effective community protection and threaten offender stability and reintegration into society.

VI. Sex offender treatment and rehabilitation programs should be adequately funded and available both in our prisons and in the community. Such programs should not include mandatory polygraph examinations and should respect Fifth Amendment rights.

VII. Children are different.

The adoption of these principles is the beginning, not the end, of NACDL’s determination to resist sex offender hysteria. Mike Iacopino is presently coordinating efforts to formulate NACDL’s public comments in response to the attorney general’s determination that SORNA will apply retroactively. On the state level, NACDL stands ready to assist our affiliates in every way as they seek to stem the tidal wave of proposed legislation.

In the final analysis, when politicians stoke public fear and attempt to outdo each other in showing just how tough they can be in fighting an emotionally resonant, but vastly exaggerated threat, the best antidote is truth. And the truth is that the panoply of sex offender laws is causing breathtaking instances of injustice. NACDL would like to compile a dossier of these injustices. If you have personal familiarity with such an abuse, please let us know about it. We are in the early stages of what is likely to be a protracted effort in this area. NACDL, its members, and affiliates must work in close partnership to ensure a rational and humane response to sex crimes.



National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org



Notes
1. A perfect example of irrationality in the nation’s approach to drug enforcement policy is the persistent crack cocaine disparity, the subject of several companion articles in this issue of The Champion (see pages 14 and 18). The 100-to-1 sentencing disparity persists despite wide recognition that the policy was flawed from its inception, and perversely tends to impose the harshest punishment on the lowest level offenders.

2. The Champion, March 2007 at 53.

3. Gov. Spitzer signed the civil commitment bill March 14. The legislation is the latest manifestation of the state’s bizarre “three men in a room” brand of democracy whereby the Governor, the Speaker of the Assembly, and the Senate Majority Leader essentially negotiate legislation without public hearings, legislative research, or any meaningful input by the elected members of the Legislature.

4. Danny Hakim, State Plan to Monitor Sex Offenders Goes Beyond Detention, N.Y. Times, Mar. 2, 2007, at B1.

5. Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times, Mar. 4, 2007, at A1; Abby Goodnough and Monica Davey, A Record Failure at a Center for Sex Offenders, N.Y. Times, Mar. 5, 2007, at A1; and Abby Goodnough and Monica Davey, For Sex Offenders, Dispute on Therapy’s Benefits, N.Y. Times, Mar. 6, 2007, at A1.

6. The full Report of the Sex Offender Policy Task Force is available at http://www.nacdl.org/sl_docs.nsf/issues/sexoffender_attachments/$FILE/SexOffenderPolicy.pdf.


OH - Cuyahoga County Judge Ronald Suster rules new Ohio sex offender law unconstitutional

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Why do they block the law for ONE sex offender and not ALL? If it's unconstitutional it's unconstitutional for ALL!!! Again, this is why ALL SEX OFFENDERS IN ALL STATES need to file a complaint about these draconian laws.

05/17/2008

Judge rules it unconstitutional

A new state law toughening registration requirements for convicted sex offenders is unconstitutional, a Cuyahoga County Common Pleas judge ruled last week.

Judge Ronald Suster blocked the state from enforcing the law on one sex offender convicted of sexual battery in 2003.

In his court order, Suster ruled that the new requirements are unlawful because they increase punishment without a court hearing (i.e. Due Process) and are retroactively (i.e. Ex post facto) applied to sex offenders whose crimes were committed before the law passed in 2007.

Suster's decision reinforces the arguments presented in a federal class-action lawsuit filed in January by the Cuyahoga County Public Defender's Office on behalf of sex offender registrants statewide convicted before the new law was enacted.

Suster was unavailable for comment Friday. But in his ruling, the judge contended that the law's intention is "to punish and ostracize this unpopular group," rather than enhance public safety. The law "goes beyond mere 'official archives of criminal records' into a system that effectively ostracizes offenders and subjects the offenders to harassment and ridicule as well as potential abuse," Suster wrote.

The law took effect in January to comply with the Adam Walsh Child Protection and Safety Act, a set of federal laws mandating that all states uniformly register sex offenders and place them into a national registry by 2009. It was billed as a way to prevent sex offenders from slipping through the cracks and committing other sex crimes.

In Ohio, the law reclassified sex offenders into three tiers - increasing the number of offenders who must register every 90 days for life by nearly 60 percent.

Suster issued an injunction to prevent the state from enforcing the law on Tramaine Evans, 30, who was convicted of sexual battery in 2003 and served a year in prison for his crime.
- Why not on behalf of ALL sex offenders?

Evans was instructed to register as a sexually oriented offender annually for 10 years. But in November, he received notice that under the new state law, he had been reclassified as a Tier III sex offender and must register every 90 days, as well as notify neighbors of his criminal record and abide by residency restrictions for the rest of his life.

His challenge to the state law was one of nearly 1,000 filed this year in Cuyahoga County, said John Martin, appellate supervisor for the Cuyahoga County Public Defender's Office.

The state has 30 days to appeal Suster's decision in the 8th Ohio District Court of Appeals.

To reach this Plain Dealer reporter:

latassi@plaind.com, 216-999-4549


NJ - Sex offenders accused of social networking use

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05/16/2008

New Jersey suspects arrested after allegedly surfing MySpace, Facebook

MOUNT LAUREL - Three convicted sex offenders have been arrested in New Jersey after allegedly surfing social networking Web sites. They are believed to be the first charged under a new law restricting their use of the Internet, authorities said Friday.
- For simply surfing? I'm not sure if they were doing anything illegal, but what if someone who is not trying to get on these sites, but looking up information, click a link, and it's a social networking site? Are they charged with simply getting on the site?

State police set up accounts on MySpace and Facebook, posing as teenagers to monitor the sex offenders, Lt. Joseph Furlong said, but he wouldn't elaborate. The suspects did not seem to be behaving improperly online, "but they are not allowed to be on there doing anything," he said.
- I guess so! This is just insane, IMO.

The law adopted in January restricts Internet use for convicted sex offenders who used a computer to help commit their original sex crime, such as trying to lure a potential victim with electronic correspondence. The law also may be applied to paroled sex offenders under lifetime supervision, but exempts computer work done as part of a job or search for employment. Violators can face up to 18 months in prison.
- So where they trying to lure someone? If not, then I do not see a problem.

Last year, the state Parole Board also adopted a rule prohibiting sex offenders under supervision them from using the Internet to socialize or use social networking sites.

All three of the men charged — Pietro Parisi, 24, of Westville; Felice Black, 24, of Paterson; and Stanton Ulmer, 32, of Neptune — had underage victims in their original crimes and all are listed as moderate-risk sex offenders. Of the three, a judge had required only Parisi to be listed on the publicly available database of sex offenders.

Computers, Web camera seized
The men were all released from custody on their own recognizance. None of the men could be reached for comment Friday. No working telephone listing could be found for Parisi or Black; a call to a listing believed to be Ulmer's rang unanswered.

Authorities seized computers, a Web camera and a cell phone — and are still seeing what evidence might be on those devices.

Furlong said each has admitted to maintaining an account on one of the sites even after being told by a parole officer that doing so was against the law and signing a paper to acknowledge that he understood.
- Ok, then this was their stupidity!

Authorities and the operators of the popular Web sites have been trying to scour them of predators. MySpace, the world's largest online social network with 200 million users worldwide and Facebook, which has more than 70 million active users worldwide, have added safeguards to protect young users from sexual predators and cyberbullies.
- Scour them for predators or sex offender? There is a big difference there.

At least two other states — Nevada and Florida — have similar laws that make the sites off-limits to some sex offenders, and more states have considered following suit.

In Florida, sex offenders are required to register their e-mail and instant messaging names with the state, which turns the information over to MySpace, Facebook and other social networking sites so they can block their access to those sites.


State Cyberstalking Laws


Click on your state to find your local laws:
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MI - Detroit Mayor Makes Text Messages Private Following Cellular Sex Scandal

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Got to hide stuff so it cannot be used against you.

05/16/2008

DETROIT — Detroit Mayor Kwame Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private.

Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers' trial that they didn't have a romantic relationship. Sexually explicit text messages have contradicted that testimony.

Kilpatrick's lawyers say federal law protects the release of such communications.

Past policy had been electronic communications were public. The mayor's office said in a statement Thursday that city policies are always subject to change.

The Detroit News and Detroit Free Press say the new policy began April 15.

The embarrassing messages between Kilpatrick and Christine Beatty from 2002 and 2003 appear in an 18-page document released April 29 on the orders of Wayne County Circuit Court Judge Robert J. Colombo Jr. in response to a lawsuit by the Detroit Free Press and The Detroit News.

The document includes descriptions of sexual trysts, the frequent use of the N-word by the mayor and Beatty as a term of endearment, and discussions of marriage.

On Sept. 15, 2002, Beatty described a sex act she wanted to perform on the mayor but said she didn't know how to approach him about it. He replied: "Next time, just tell me to sit down, shut up and do your thing!"

Later that month, the pair appeared to arrange a sexual encounter in Beatty's office. On Sept. 19, 2002, Beatty wrote to Kilpatrick: "I have wanted to hold you so badly all day, but I was trying to stay focused on work. So, I promise, not to keep you longer than 15 minutes."

Kilpatrick replied: "Don't promise (N-word.)"

Beatty said: "I'm in my office. Do you want me to come to yours or you coming to mine?"

Kilpatrick said: "I'm coming down there ... LOL ditto. Freaky Chris!"

The text messages also appear to show Kilpatrick was involved in the decision to fire one of the former officers, former Deputy Chief Gary Brown, which Kilpatrick also denied under oath as part of the lawsuit.

In a text message Beatty sent to Kilpatrick on May 15, 2003, that was contained in the document released Tuesday, she said: "I'm sorry that we are going through this mess because of a decision that we made to fire Gary Brown."

Kilpatrick said last September that the city would appeal a jury's verdict in favor of two officers in one of the lawsuits. But after Stefani gave one of Kilpatrick's lawyers a motion for attorney's fees that contained excerpts of the text messages, the suit was settled and the motion was never filed in court.

The judge said Tuesday he agreed to release the document because he believes it directly led to the deal that was reached between the three former officers and the city.

Following a community forum Tuesday evening, Kilpatrick questioned the authenticity of the messages and said their release did not provide a "the smoking gun" some had expected.

"All the lawyers have testified that this had nothing to do with the settlement." Kilpatrick said.

"It seems that it's just a regurgitation of old news. And it's unfortunate that now we're printing something as true that came off somebody's computer," he said.

Mayer Morganroth, who represents Beatty, said he believes the text messages were obtained illegally and the excerpts should not have been released.

Most of the text messages included in the document focus on the relationship between Kilpatrick and Beatty, both 37, who have been friends since high school.

On April 8, 2003, Beatty wrote: "You told me that you would be my boyfriend everyday until I was your wife. Are you renigging?"

Kilpatrick replied: "Hell no! Don't start none. Won't be none ...! LOL".

Kilpatrick remains married to his wife, Carlita. Beatty left her husband at the end of April 2003, according to the document.

On April 13, 2003, Beatty wrote to Kilpatrick: "It is sometimes so amazing how much I love you. I can't even describe most of the time how I feel inside when I think about you. You are an amazing man. Everything about you makes me love you. Your passion about life, your sense of humor, your presence, and your love of family."

On May 1, 2003, Beatty referred to her separation from her husband: "I can't see living this way with us being a 'secret' forever. I love you so much and I want to tell somebody, someday! (Smile)."

Kilpatrick responded: "In this important and somewhat confusing time in your life, please know with all our hearts and soul that I love you. And you will never, never be alone."


TX - Prison Warden Removed Following Local 2 Investigation

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See the videos at the end.

05/06/2008

HOUSTON -- Note: The following story is a verbatim transcript of an Investigators story that aired on Tuesday, May 6, 2008, on KPRC Local 2 at 6 p.m.

Tonight, the senior warden of a Houston-area prison has been removed and state prison leaders say more changes are on the way.

The removal comes days after Local 2 Investigates exposed serious charges of officer corruption and cover-up at the CT Terrell prison unit near Rosharon in Brazoria County.

Local 2 investigative reporter Stephen Dean broke this story and has the latest information on the prison investigation.

The charges are serious -- officers bringing in contraband, officers having sex with inmates and even working together in organized crime. Whistleblowers inside the prison told us not only did senior warden Anthony Collins ignore their complaints, they claim he retaliated against them for reporting it.

Tonight, Collins is no longer running the Terrell unit.

"You have a group of rogue officers that are there to basically bring things into the prison unit to supply illegal stuff for the offenders," said corrections officer No. 1, who spoke on conditions of anonymity.

"It's swept under the table or no action is taken," said Corrections Officer No. 2, who also spoke on conditions of anonymity. "It's almost a sense of hopelessness."

These corrections officers blew the whistle -- saying they provided evidence they say shows dozens of officers inside the Terrell prison unit in Brazoria County are corrupt on one level or another.

"Certain parts of the administration is doing everything they can to look out for certain officers that they're basically involved in in some way on the unit," said corrections officer No. 1.

However, when these officers detailed their suspicions and firsthand accounts of drug trafficking, sexual relationships and other wrongdoings to prison leaders -- including senior warden Anthony Collins -- they claim they were the ones facing the heat for reporting it.

The officers say Collins even changed policy to make sure all officer complaints to headquarters had his signature first.

"We just felt from the beginning it was basically a cover-up for a group of officers that were going the wrong way on the unit," said corrections officer No. 1.

Just days after we aired our investigation, Collins is no longer on the job inside Terrell.

The Texas Department of Criminal Justice tells Local 2 Investigates that Collins has been reassigned, but with no new post decided.

Just last week, a TDCJ spokesperson had said Collins was charged with uniting a divided prison staff. Now, TDCJ says Collins' removal was part of an ongoing effort to do just that.

TDCJ has not named a new warden, but a spokesperson says one officer has been re-assigned. The prison system promises more moves are on the way following the Local 2 Investigates story.

The state Office of Inspector General could soon take some actions of its own.

Investigators tell us they're continuing to question officers about a number of corruption charges.

Last month, corrections officer Derrick Rice was arrested at the Terrell prison. He's charged with seven counts of felony bribery. Rice is accused of getting paid to bring contraband inside prison walls to inmates.

Rice denies the charges.

Previous Local 2 Investigates Stories:






WI - Sex Offender Residency Board Overwhelmed by Appeals

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Good, this is what I like to see, people fighting these insane, draconian and unconstitutional laws.

05/16/2008

A staggering number of sex offenders are appealing to a Green Bay panel, asking if they can be an exception to the city's residency restrictions.

For the first time in the sex offender residency board's 13-month history, the number of appeals reached the double digits.

Keeping up with the ordinance is proving to be a lot work.

"Administratively, it is very difficult when we have that many individuals come before us," residency board member Brad Hopp said.

Appeal, after appeal, after appeal, this week's agenda seemed to go on forever. The meeting itself took it took nearly five hours.

"I was shocked," residency board member Brad Hopp said. "We could never take any more than that."

Ten sex offenders -- a record -- asked the board for permission to live in Green Bay.

"We're all volunteers, we have other jobs, we don't get paid anything for this contrary to what a lot of people think," Hopp said.

So why the sudden increase? Hopp says it could be because Ashwaubenon recently passed a similar ordinance. As of now, the village does not have an appeals board.

"We're probably going to see more appeals because if Ashwaubenon doesn't allow for appeals, if other municipalities don't allow for appeals, we're their only hope, I guess," Hopp said.

"It created a lot of work for us," Lieutenant Keith Knoebel, Green Bay Police Department, said.

Green Bay police also say they're discovering more offenders in violation of the ordinance.

"We're getting a lot more people calling in or e-mailing us, telling us that there's certain people in the area. Our community police officers are finding more of these people just on their routine checks in their neighborhood," Knoebel said.

Since the ordinance went into effect last year, the police department has spent more than 100 hours on administrative work preparing for the meetings. Knoebel says it takes officers away from other police work.

Hopp says only one entity can prevent this board from getting burned out.

"The State of Wisconsin can step up and make all of these ordinances go away."


MO - Missouri Passes Law Criminalizing Cyber Harassment

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So I hope this affects PJ and AZU as well, since this is what they are good at doing! Since they did not mention which bill this is, the only one I found about cyber harassment is here.

05/16/2008

JEFFERSON CITY — Responding to the suicide of a Missouri teenager who was teased over the Internet, state lawmakers Friday gave final approval to a bill making cyber harassment illegal.

The bill updates state laws against harassment to keep pace with technology by removing the requirement that the communication be written or over the telephone. Supporters say the bill will now cover harassment from computers, text messages and other electronic devices.

It was approved 106-23 in the House and 34-0 in the Senate and now goes to the governor.

Republican Gov. Matt Blunt (Contact) issued a statement praising lawmakers for passing the measure.

"Social networking sites and technology have opened a new door for criminals and bullies to prey on their victims," he said. "These protections ensure that our laws now have the protections and penalties needed to safeguard Missourians from Internet harassment."

Many of the bill's provisions came from a special gubernatorial task force that studied Internet harassment after the media last fall reported on the details of Megan Meier's suicide.

Police say the 13-year-old St. Charles County girl hanged herself in 2006 after being teased on a social networking Web site.

A neighborhood mother, her 18-year-old employee and 13-year-old daughter are accused of creating a fake profile of an attractive teenage boy to determine what Meier was saying about the daughter online.

The mother, Lori Drew, 49, was indicted in California on Thursday on federal counts of conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress on the teen. An attorney for Drew said a legal challenge is being planned.

Missouri police didn't file any charges against Drew in part because there was no applicable state law. Sen. Scott Rupp said Friday there's no way to be sure his legislation would have guaranteed a conviction, but it would have allowed prosecutors to continue investigating without having to ship the case to a different state.

"Without a good, quality cyber stalking and harassment law, which we don't currently have, we have to go to federal courts in other states to make a stretching leap argument," said Rupp, R-Wentzville.

State Sen. Harry Kennedy (Contact), D-St. Louis, said the law is "definitely a warning shot for those folks who want to use the Internet for harassment."

There was no immediate response from Meier's parents, Tina and Ron Meier. Tina Meier earlier this year testified before a Senate committee urging lawmakers to pass the bill.

Under Rupp's bill, repeat offenders and someone who is at least 21 years old could be charged with a felony and face up to four years in prison if they harass a minor. Other instances of harassment would remain a misdemeanor with penalties of up to a year in jail.

The bill also requires school officials to tell police about harassment and stalking on school grounds and expands state laws against stalking to cover "credible threats" not only against the victim, but also family and household members and animals.

Currently, stalking is a misdemeanor, but the bill would let someone be charged with a felony and face up to four years in prison if they stalk more than once, make "credible threats," violate a court protection order and violate their probation or parole by stalking.


MO - MySpace Suicide Case Could Make Us All Criminals

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05/16/2008



NEW YORKThink twice before you sign up for an online service using a fake name or e-mail address. You could be committing a federal crime.



Federal prosecutors turned to a novel interpretation of computer hacking law to indict a Missouri mother on charges connected to the suicide of a 13-year-old MySpace user.



Prosecutors alleged that by helping create a MySpace account in the name of someone who didn't exist, Lori Drew, 49, violated the News Corp.-owned site's terms of service and thus illegally accessed protected computers.



Legal experts warned Friday that such an interpretation could criminalize routine behavior on the Internet.



After all, people regularly create accounts or post information under aliases for many legitimate reasons, including parody, spam avoidance and a desire to maintain their anonymity or privacy online or that of a child.



This new interpretation also gives a business contract the force of a law: Violations of a Web site's user agreement could now lead to criminal sanction, not just civil lawsuits or ejection from a site.



"I think the danger of applying a statute in this way is that it could have unintended consequences," said John Palfrey, a Harvard law professor who leads a MySpace-convened task force on Internet safety. "An application of a general statute like this might result in chilling a great deal of online speech and other freedom."



Drew, of O'Fallon, Mo., was indicted Thursday on charges of perpetrating a hoax on the popular online hangout MySpace.



Prosecutors say Drew helped create a fake MySpace account to convince Megan Meier she was chatting with a nonexistent 16-year-old boy named Josh Evans.



Megan hanged herself at home in October 2006, allegedly after receiving a dozen or more cruel messages, including one stating the world would be better off without her.



Drew, who has denied creating the account or sending messages to Megan, was indicted by a federal grand jury in Los Angeles on one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl.



Prosecutors argue that to access MySpace's servers, Drew first had to sign up for the service, which meant providing her name and date of birth and agreeing to abide by the site's terms of service.



Those terms bar false registration information, solicitation of personal information from anyone under 18 and use of any information gathered from the Web site to "harass, abuse, or harm another person."



By using a fictitious name, among other things, Drew violated MySpace's terms and thus had no authority to access the MySpace service, prosecutors charged.



"Clearly the facts surrounding this matter are awful and very upsetting, and I certainly understand the instinct of wanting justice to be served," Palfrey said. "On the other hand, this complaint is certainly unusual."



Drew's lawyer, Dean Steward, said Thursday a legal challenge to the charges is planned. Missouri authorities said they investigated Megan's death but filed no charges because no state laws appeared to apply to the case.



Andrew DeVore, a former federal prosecutor who co-founded a regional computer crime unit in New York, said Friday the interpretation raises constitutional issues related to speech and due process — in the latter case, because it doesn't allow for adequate notice of when using an alias online is criminal.



Because corporations would end up setting criminal standards, a completely legal act at one site could be illegal at another, said DeVore, who has no direct involvement in the case.



"What clearly is going on is they couldn't find a way to charge it under traditional criminal law statutes," DeVore said. "The conduct that she engaged in they correctly concluded wouldn't satisfy the statute. Clearly they were looking for some other way to bring a charge."