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ACSOLGeneral News

ACSOL to Challenge Passport Identifier in Federal Court

The Alliance for Constitutional Sex Offense Laws (ACSOL) will challenge the passport identifier recently revealed by the U.S. State Department. The challenge is expected to be filed in a federal district court within the next 90 days.

“We have begun the necessary process of identifying a strategy for a successful challenge,” stated ACSOL Executive Director Janice Bellucci. “The strategy will include the identification of potential plaintiffs as well as both legal and financial resources. The federal district court in which the challenge will be filed has not yet been determined. That decision will be made after potential plaintiffs have been identified.”

The addition of a “unique identifier” to the passports of some registrants is one of the requirements of the International Megan’s Law (IML) which was Congress passed Congress and the President signed in February 2016. Registrants to be affected by this provision are those convicted of a sex offense involving a minor and are currently required to register as a sex offender.

The IML does not include a description of the “unique identifier” or its placement in an individual’s passport. According to a press release issued by the State Department on October 27, 2017, the following language will be added to the inside back cover of affected passports: “The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212(c)(1).”

Prior to passage of the IML, no American passport has included a “unique identifier” for a U.S. citizen. The IML does not require the State Department to add such an identifier to the passports of U.S. citizens convicted of murder, robbery drunk driving or any other offense.

Join the discussion

  1. tod

    I want to put somethings into perspective when it comes to international travel and other countries when you have a criminal record – notice I said ‘criminal record’ not sex offense. I was doing some research on what country would be easiest for me to move to with my past (if anyone has suggestions, PLEASE let me know – has to have snow/mountains 😉 and what i was finding is that there are a LOT of countries that won’t let you in their borders with many crimes, yes, sex offense is the worst, but sometimes it can be as light as a misdeamenor. Canada, DUI or ANY felony, Japan, Australia, Mexico, New Zealand, ANY felony, Chili, South Korea, and SO many more will not let you in if you have any crime in your past. I am not sure how they know, but if you have a drug felony – you don’t have to do any stupid notification to Japan, but they will sure as hell kick your butt off the plane and send you home. My point is that although it is the worst for an SO, it is not the only group of people that is banned from countries.

    The IML stamp issue sucks the worst, but if I am reading it right, it is on the very LAST page of your PP, NOT the cover page with all the info on it. I have traveled a lot, no one looks at that page, even when you come into the US. I have found that sometimes sticky things can spill, and make pages stick together…. I am hopeful Janice wins this first (of many challenges) but until then, when (if) I get that letter, I will worry about it.

    Lastly, again, I HATE all of this, but at least for now, I can name 7 countries i have traveled too with no problems – Iceland, Amerstdam/Netherlands, Czech Rep, Switzerland, England*, France, Portugal – *England has turned away ppl, so be careful or take a train. South Africa isn’t banning anyone,
    Eastern EU isn’t, I see this all the time, ‘I can’t go anywhere’ BS, you CAN – if you want to go to a beach, you can go to the US VIRGIN ISLANDS and you DON’T NEED A PASSPORT!!! same with Pueto Rico and Guam (super long flight). Just remember you WILL be harrased coming back into the US, DON’T bring a laptop!!! They WILL search your phone – legally, and they do to many others, expect that, they will look at receipts, and I have heard even question you – I have also come back with none of that, almost cried when I walked thru. There are smart ways to do things to be safe – or you can sit on your ass and complain about it. I lost a lot of time on my life, and will fight to get as much of that back, I hope you do too

    Bottom line as long as you give in and LET them think they have you bottled up, they win. Yes, we have less choices, but you STILL have choices! Better yet, donate – your time or money, your experiences, your expertise, whatever, DO something!

    • CR

      @tod, thanks for the info. When you say “I have also come back with none of that, almost cried when I walked thru”, do you mean that if you don’t carry electronic equipment (laptop, tablet, phone, smart watch, etc) that they don’t detain you as long?

      • David Kennerly, Barely Allowed Out-Of-Doors

        That’s been my experience simply because it gives them less to do. Searching through computer hard drives, memory sticks of cameras and phones takes time. I have never had my stuff seized (but haven’t traveled in several years) and, instead, had to wait while they searched through all of my devices and digital files.

        • CR

          Ugh. A search through your personal possessions, digital or otherwise, is so offensive. It ought to require a search warrant.

          If you carry no electronic devices with you (or dispose of them before returning), but you are traveling with someone who is not a registrant, would they search that person’s electronic devices too? Your spouse, let’s say, or perhaps a co-worker. I am guessing that they would claim to have a “reasonable suspicion” that a crime was committed since you were in the company of someone who’s device you might have used.

        • R M

          CBP doesn’t need “reasonable suspicion”. According to the CBP website at https://www.cbp.gov/travel/cbp-search-authority

          “CBP Search Authority
          A U.S. Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.” Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers.”

          The question however is, why do people who have ever been convicted of a sex crime get seemingly singled out?

        • CR

          You are right, they still say they can do that, but there is a recent policy change in effect regarding “advanced” or “forensic” searches of electronic devices. The ACLU reported on this last week.

          https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/governments-new-policy-device-searches

          Of course, CBP will always claim to have reasonable suspicion when it comes to us, regardless.

    • Sam

      A few things

      Japan’s law is if you were sentenced to more than a year in jail/prison, South Korea didn’t give me a second glance and just let me in.

      As for it being on the last page. Singapore, Indonesia, and Thailand looked all up in my passport front to back as well as my current country wanted a full copy of my passport for my visa

    • TS

      @tod

      Are you saying you are inspected coming back from a US Territory the same you would a foreign country by CBP? That would make no sense since it is US soil and you should be able to walk on through without a stop by CBP.

      • Alec

        Todd,

        Normally for US territories you do CBP when you leave, not when you arrive, since usually the plane arrives at domestic gates, not international ones.

        If it will arrive at an international one, it is a toss up. You might get one or both, depending on the airport.

        • TS

          @Alec

          Why are you going through CBP on the way to a US Territory from mainland USA? What are they checking/looking at outbound? Just looking to understand further why there is an extra layer on US soil for travel to/from other US soil even though they are not a state, but a territory instead.

          I can understand if you come back into an international gate to due to mingling of people in the international terminal and wanting to ensure there is no passing through of someone who should not be allowed on US soil.

        • TS

          Will travelers from U.S. territories need to present a passport to enter the United States?

          (https://help.cbp.gov/app/answers/detail/a_id/980/~/needing-a-passport-to-enter-the-united-states-from-u.s.-territories)

          U.S. Citizens who travel directly between parts of the United States, which includes Guam, Puerto Rico, U.S. Virgin Islands, American Samoa, Swains Island and the Commonwealth of the Northern Mariana Islands (CNMI), without touching at a foreign port or place, are not required to present a valid U.S. Passport or U.S. Green Card.

          However, it is recommended that travelers bring a government issued photo ID and copy of birth certificate.

    • Relief

      @TOD – Are you saying while in Europe you have taken a train (from Paris I’m assuming) to England? Or do you just think this might work? And if so, was it recently?

  2. Illinois Contact

    Has there been any progress in the lawsuit announced by ACSOL in Nov, 2017 to be filed in a federal district court “within the nest 90 days” challenging the passport identifier?

    • Janice Bellucci

      The lawsuit was filed and unfortunately the judge ruled against us.

      • Joe

        Oh? I was under the impression that the lawsuit was dismissed for lack of standing – given that, at the time, there were not instances of passport revocation for lack of identifier, and no marked passports being issued. I also thought it was the kind of dismissal that was not based on the merits of the case but on the complaining parties’ circumstances – which are subject to change. As they have.

        At this time, there are ample instances of both. Why would one not revive the prior lawsuit – this time with obvious standing and ripeness?

        Am I completely misunderstanding?

        • Harry

          I am with you on this Joe. Even after, Janice, kindly explain it to me, however, I am still in a dazed why this IML and Passport ID is not back in court. There has been plenty of dirty water running under bridge and it is getting dirtier. This needs to be priority. If it is funding issue, open a legal funding drive for this challenge.

        • PK

          I believe it was dismissed “with prejudice” which I think means they cannot re-file the same case.

      • steve

        The last challenge was regarding how the bill was passed (technicalities) I believe. The first challenge was the ripeness issue. I don’t understand how reporting your travel (21 day notice) isn’t like being on probation which was part of our punishment?

        • Joe

          It is much worse than probation. Not giving notice / getting permission while on probation or parole is just that – a probation / parole violation. Not giving notice under IML is a brand new felony with a max of 10 years in federal prison – even if the qualifying offense (possibly from decades ago) was a misdemeanor. !?!?!?

      • Chris f

        So if IML challenges failed, wouldnt that failure bolster a Substantive and Procedural due process claim against being put on a registry to begin with?

        In other words, restrictions on liberty like IML and being denied employment and being kicked off Facebook are the outcomes of being placed on a registry. Before subjecting anyome to deprevations of liberty, the government must have a certain amount of due process in place relevant to the liberty restrictions. Smith V Doe 2003 and Connecticut Dps v doe 2003 hinged on registration not impacting liberty interests and only relaying facts without a determination of dangerousness.

        So, now that registries have clear impacts on liberty but the Due Process involved has not changed accordingly since those 2003 rulings, isnt it ripe for a new challenge?

        Why keep playing whack-a-mole with each restriction when the lynch pin of being put on the list to begin with can be attacked?

        • Anon

          Well, that’s understandable frustration. Unfortunately no one has a “right” to facebook. And publishing or sending what is essentially public information to another country is merely administrative. I think we will need some outside the box thinking if we want to overcome these issues.

        • Joe

          @Anon – You may have a point about Facebook – a non-governmental entity – but one should have the “right” not to be singled out by one’s government for really no valid reason. And there really isn’t one. Publishing or sending to another country what is essentially for only a few select criminal convicts while not doing so for those who commit much worse offenses or who have a documented higher recidivism rate is far from merely administrative.

          Other than Facebook – what @Chris f said.

        • Chris f (@ Anon)

          @Anon

          Actually, per Packingham V North Carolina, we do have a right to the government not impeding our free speech on Facebook. Facebook can ban anyone they want to protect their business. The issue is, the registry is no longer just a list without the government infering dangerousness. Because of IML and all the other government restrictions on liberty to people on the list, dangerousness is now implied and therefore it requires adequate due process to be put on it.

          Sending info to another country is not just information when it is a list of people deemed dangerous by a state but other states use different criteria and durations on the list. If they dont supply all criminal info on all people, then there is an inference of extra danger by those provided. That also requires due process and equal protection and cant just be arbitrary.

          The out of the box thought on this is that it can be one of those rare and normally avoided facial challenges instead of as-applied to just a select few good registrants. While most laws against offenders wont pass a facial challenge because there could be a few really bad people that the could apply to, a substantive and procedural due process challenge applies to even the worst. It doesnt matter if you looked at one naughty picture or raped 100 people, they all must have due process to be put on a registry that negatively impacts their liberty.

        • Will Allen

          Amen. F*ck these criminal U.S. big governments and everyone who supports them.

          I read very recently that the criminal regime of NC is crying so hard over Packingham that one (or more) of their criminal legislators has created a bill that will make it a felony for any Registered Person (RP) to violate the terms of service of any online service (or perhaps it was just social media, didn’t look at that closely). It would not be a felony for anyone to do that, just would be for RPs.

          Personally, I don’t think that many of those idiots actually think it is a problem if RPs are on Facecrook. I really think they just want to harass RPs and they also want to remove a significant means for RPs to be able to criticize their crimes and fight back. That is all it is.

          F*ck them every day. I swear I will continue to harm them all every day by any legal methods I can find.

        • AJ

          Re: FB and its ilk being public fora, stay tuned for an Opinion in Manhattan Community Access Corp. v. Halleck (https://www.scotusblog.com/case-files/cases/manhattan-community-access-corp-v-halleck/?wpmp_switcher=desktop), involving a private entity operating a public access channel. This isn’t a whole lot different than FB (private entity) operating a public access website (“modern day public square”).

          Of greater import and worthy of attention is the suit against Twitter by the white supremacist (https://therooster.com/blog/a-white-supremacist-suing-twitter-just-won-a-big-first-amendment-hearing). It’s a (CA) State court suit, but it still has implications on social media. SCOTUS’ ruling on the above case may have a huge impact on this suit, and social media in general.

  3. mike r

    ACSOL should be using the statement by the AG in my case for a challenge to the IML,

    “Strict scrutiny may be applicable in cases where international travel restrictions also
    implicate First Amendment concerns. Eunique, 302 F. 3d at 973; see Aptheker v. Secretary of
    State,378 U.S. 500, 501-02, 514 (1964) (statute prohibiting international travel by members of
    the Communist Party was unconstitutional as not “narrowly drawn”). Although Plaintiff
    generally alleges that restrictions on his travel prevent him from “associating” with family
    members, he does not allege that any of those family members reside outside the U.S. See
    Compl. at pp. 29-39. Even if he did, this would not implicate the First Amendment, since all
    travel restrictions could then be challenged based on one’s right to “associate” with the people at
    any destination, thus swallowing the rule of rational basis review. In any event, Plaintiff is free to
    visit and associate with his family members under SORA and Megan’s Law.”

    It is as though the AG is spelling it out for any challenge to IML. Specifically,

    “all travel restrictions could then be challenged based on one’s right to “associate” with the people at
    any destination, thus swallowing the rule of rational basis review.”

  4. mike r

    I find it hard to believe that this only applies to out of the country crap. She is basically stating that we have a fundamental right to associate that is infringed upon with international travel restrictions if you have a family member in any of the destination countries. It is a no brainer for many of the complaints on this site on IML because many have family members that they cannot visit because of IML. This should nonetheless apply to domestic travel as well.

  5. mikey r

    I cannot go visit aunt sally in Florida because there are travel, presence or residency restrictions, in place.

  6. AJ

    I ran across a SCOTUS case that seems like decent foundation for a suit by a CA RC against FB and its ban of RCs. The case is Pruneyard Shopping Center v. Robins (https://supreme.justia.com/cases/federal/us/447/74/). It involves expanded rights on private property based on a State (CA) constitution. If you read the case and swap out “Pruneyard” for “FB” or “shopping center” for “website” or “social media,” I don’t see a lot (if any!) difference.

    Given CA doesn’t collect Internet IDs from RCs, any such case would have to come from putting it right in FB’s face. For instance, a CA RC could openly state their registrant status and discuss other RCs petitioning the Assembly or such. Or perhaps someone could start a FB group that requires one to be a CA RC in order to join.

    Fellow armchair barristers, please chime in.

    • Joe

      CA does collect internet identifiers of those convicted after a certain date (2014? 17?) where the internet was a material factor in the crime.

      The appeal of Facebook eludes me entirely, but if someone wanted to take them to task, why wouldn’t they purchase an ownership stake in the company / one share at currently $177 and then do it? Can they exclude their owners from using their own company?

      • AJ

        @Joe:
        “CA does collect internet identifiers of those convicted after a certain date (2014? 17?) where the internet was a material factor in the crime.”
        —–
        Thanks for this updated info. Being non-CA, I was unaware of that. This fact would make one of those RCs a prime plaintiff candidate.
        =====
        “The appeal of Facebook eludes me entirely…”
        —–
        Yeah, me too. I prefer not to surrender ownership rights on everything I post, not to mention the real problem of social media: getting data-mined nine ways to Sunday until they truly know me better than I do.
        =====
        “…but if someone wanted to take them to task, why wouldn’t they purchase an ownership stake in the company / one share at currently $177 and then do it? Can they exclude their owners from using their own company?”
        —–
        Yes, they can, do, and will. That you are a shareholder does not grant you exception from corporate policy. All it does is give you one vote out of the 2.8+ Billion shares. If you could get half that amount to join you, thus 50%+1, you could perhaps sway policy. Since Zuck owns a controlling interest (53.3% of voting rights), NObody can change anything unless he goes along with it (one of many, many reasons why I do not and will not invest in FB).

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