Law Creating Passport Mark for Sex Offenders Faces First Challenge

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday.

A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.

The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.

The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement.

The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.

“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.

The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them.

Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S.

“Knowledge is power in terms of protection,” said Rep. Chris Smith(R., N.J.), who sponsored the bill.
Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.

The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.

Congress passed the original Megan’s Law in 1996. Named after 7-year-old Megan Kanka, who was raped and killed by a neighbor in New Jersey, the law mandates authorities publicly disclose information about convicted sex offenders. The federal statute is modeled from the New Jersey law of the same name, which requires authorities to tell communities the whereabouts of convicted offenders. It has been copied across the country and survived many legal challenges.

Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled.

U.S. Immigration and Customs Enforcement agents launched Angel Watch as a pilot program in California in 2007. Under the program, ICE shares publicly available information from U.S. sex-offender registries with its foreign counterparts “to utilize as they deem appropriate,” according to a summary of the program turned over in response to a Freedom of Information Act request.

Federal law requires registered sex offenders to notify local law-enforcement authorities of their plans to travel abroad at least 21 days in advance. In fiscal 2014, ICE sent 2,291 notifications to authorities in more than 120 countries, up from 637 alerts in 2012, the summary shows.

Mexico accounted for more than half of the Angel Watch notices in 2014, while the Philippines, the next highest, received about 15%, according to the summary. Nearly 500 of the travelers flagged by Angel Watch were denied entry into their destination country that year, the documents show.

Homeland Security officials and lawmakers said the International Megan’s Law would bolster the program. “The countries of destination lack sufficient resources to deal with the rising number of child predators,” Rep. Ed Royce, (R., Calif.) chairman of the House Foreign Affairs Committee, said while introducing the bill in January.
Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.

Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”

International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.

Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 400,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court.

“This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”

Danielle Bennett, a spokeswoman for ICE, said the agency operates under a narrow definition of a sex offense against a minor spelled out in a 2006 federal law. Video voyeurism and possession of child pornography are among the specified offenses. “Offenses including public urination and consensual sexual conduct among teenagers … are not included as part of this limited definition,” she said.

One plaintiff, a Hawaii resident who asked to be identified only by his first name, Bob, said he was denied entry into the Philippines, where his wife of five years lives, when he tried to visit over the holidays in 2012.

Bob was convicted in 2009 of a peeping Tom charge and made to register as a sex offender when Hawaii broadened its registration law three years later. In Manila, he said the bureau of immigration pulled him aside at customs, told him he wasn’t allowed to enter the country and put him on a flight home.

The U.S. communiqué to Filipino authorities said Bob “was convicted in 2009 of violation of privacy in the first degree. Subject is expected to arrive in Manila on December 31, 2012 at 1925H.”

After hiring Filipino lawyers to help him demonstrate he isn’t a threat, Bob has been able to travel to the country, he said. But he described his position with the Philippines government as “tenuous.”

“That alert doesn’t just mean I had a conviction in the U.S. That means I’m traveling there with the intent to commit a crime against a child,” Bob said. Article – Wall Street Journal

JOE PALAZZOLO, Wall Street Journal
March 29, 2016 2:30 p.m. ET