INTERNATIONAL MEGAN'S LAW AND THE IDENTIFIER PROVISION: AN EFFICACY ANALYSIS.

• Author: Cull, Daniel

INTRODUCTION

Sex offender laws play an important role in protecting our communities, deterring sexual misbehavior, and in keeping an eye on high-risk individuals. However, as in any law, we want to guarantee the law is well-directed, proportional, and efficacious. A good problem should be met with the right solution. The most recent Congress has set out to stop sex trafficking and sex tourism by passing International Megan's Law.

This note will provide the legal context for International Megan's Law in three regards: sex offender laws, sex trafficking and tourism laws, and passport laws. From there, it will argue International Megan's Law's passport identifier requirement is not well suited to the aims of the law while taking an aggressive step away from the usual functions of the passport.

There are three problems International Megan's Law faces. First, by using the passport to communicate things other than purely identificatory information, the United States moves away from near-universal international passport standards which other countries may use as precedent for improper purposes. Second, the impact of International Megan's Law only replicates existing policy or creates effects that are better serviced through alternatives. Third, because International Megan's Law impacts more than just offenders likely to engage in sex trafficking or sex tourism, the law places negative consequences on parties who were not the aim of the legislation's goals.

BACKGROUND ON SEX OFFENDER LAWS

The federal government first legislated sex offender registration in 1994 with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (hereinafter "Wetterling Act"). (1) The Wetterling Act encouraged states to establish registration and tracking standards. (2) The federal government then passed federal Megan's Law in 1996. (3) Megan's Law required states to "release relevant information that is necessary to protect the public concerning a specific person required to register." (4) All fifty U.S. States and all U.S. territories responded by enacting local laws to meet these requirements. (5)

Soon after, the federal government passed the Pam Lychner Sex Offender Tracking and Identification Act of 1996 (hereinafter "Lychner Act"). (6) The Lychner Act required the FBI to establish a national database to track convicted sex offenders against minors, convicted sexually violent sexual offenders, and sexually violent predators. (7) Mirroring Megan's Law, the Lychner Act empowered the FBI to "release relevant information concerning a person required to register... that is necessary to protect the public." (8)

In 2006, the federal government passed the Sex Offender Registration and Notification Act (hereinafter "SORNA"). (9) SORNA acted to create "a comprehensive national system for the registration of... offenders". (10) SORNA sought to standardize state registration and notification to settle "gaps and problems with existing Federal and State laws." (11) Strangely, the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking claims thirty-one states have failed to implement SORNA's requirements adequately even ten years later. (12)

Of particular interest, SORNA requires registered sex offenders, by criminal penalty, to update their registration when they travel in "interstate or foreign commerce." (13) SORNA-qualifying travelers are required to provide a heavy load of personal information any time they travel internationally. (14) SORNA also federally requires the establishment of "a system for informing the relevant jurisdictions about persons entering the United States who are required to register." (15)

BACKGROUND ON SEX TOURISM & TRAFFICKING LAWS

A frequent priority of Congress is the elimination of sex trafficking and sex tourism. To this end, federal law criminalizes the interstate and foreign transportation for sex trafficking purposes. (16) Additionally, federal law criminalizes travel "with intent to engage in illicit sexual conduct" via interstate or foreign commerce. (17) To prevent sex trafficking and tourism, in 2007 the Department of Homeland Security created Operation Angel Watch to notify foreign jurisdictions of travel by child sex offenders. (18)

Representative Christopher Smith of New Jersey claims he had an idea for a law that mandated international reciprocal information sharing on travelling sex offenders in 2007. (19) Rep. Smith first introduced International Megan's Law in 2008, with the bill passing through the House three times in 2010, 2014, and 2015. (20) In January 2015, the bill passed the House by a voice vote. (21) In December 2015, the bill passed the Senate by Unanimous Consent. (22) In February 2016, International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders was passed into law ("International Megan's Law"). (23) International Megan's Law is comprised of two major sections for combating sex trafficking and tourism.

First, International Megan's Law establishes the Angel Watch Center. (24) The Angel Watch Center scans foreign travelers on the National Sex Offender Registry, (25) receives notifications of sex offenders entering the United States, (26) and transmits relevant information to destination countries. (27) In Representative Smith's words, the Angel Watch Center would "codify and streamline" the work of Operation Angel Watch. (28)

Second, International Megan's Law establishes a passport identifier requirement for covered sex offenders. (29) The unique identifier is defined as "any visual designation affixed to a conspicuous location on the passport indicating that the individual is a covered sex offender." (30) Covered sex offenders include anyone who is required to register under any jurisdiction's sex offender program (31) and is included in a registry based on an "offense against a minor." (32) This term includes any criminal offense with a minor involving kidnapping, (33) false imprisonment, (34) sexual conduct, (35) solicitation to engage in sexual conduct, (36) sexual performance, (37) solicitation to practice prostitution, (38) video voyeurism, (39) child pornography crimes, (40) or "[a]ny conduct that by its nature is a sex offense against a minor." (41)

Congress passed International Megan's Law to stop sex tourism and sex trafficking. (42) Congress found that sex offenders travel internationally from the United States, (43) and an estimated 18,000,000 children are victims of sex trafficking. (44) In 2008, the Government Accountability Office found that sex offenders were issued at least 4,500 passports. (45) Federal law does not allow for denial of a passport based on sex offender registration, (46) but this information still was heavily cited by proponents of International Megan's Law. (47)

California Reform Sex Offender Laws challenged International Megan's Law in court as unconstitutional in violation of the First Amendment, (48) Fifth Amendment, (49) and the Ex Post Facto Clause. (50) The challenge failed on all points. (51) This case has been appealed to the 9th U.S. Circuit Court of Appeals and is currently pending. (52)

BACKGROUND ON PASSPORTS

The International Civil Aviation Organization ("ICAO") is a specialized agency within the United Nations. (53) The ICAO's authority stems from the Chicago Convention in 1944 (54) and now manages 191 Member States. (55)

One of the ICAO's early duties was collecting and making available information on local customs airports for foreign entry. (56) Members of the ICAO are entitled to their own "regulations relating to entry, clearance, immigration, passports, customs, and quarantine." (57) However, contracting states also agree "to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization... in all matters in which such uniformity will facilitate and improve air navigation." (58) Additionally, the ICAO exists itself to help provide "safe, regular, efficient and economical air transport." (59)

As necessary, the ICAO puts out "international standards and recommended practices and procedures" (60) for customs procedures. (61) Although not binding, states looking to deviate from these standards must notify the ICAO within sixty days. (62) The ICAO then disseminates this information to all Member States. (63)

In 1968, the ICAO's Air Transport Committee of the Council created the Panel on Passport Cards. (64) The Panel "develop[ed] recommendations for a standardized passport book." (65) These standards were first published in 1980 (66) and have been updated six times since. (67) In 2005, 188 Member States approved a new machine-readable standard for passports, to be implemented by 2010. (68)

The current machine-readable standard mandates passports contain fields for the issuing state, document name, document type, issuing state code, passport number, first name, last name, nationality, date of birth, personal number, sex, place of birth, date of issue, authority or issuing office, date of expiry, signature, and portrait. (69) Within this standard, space exists for optional personal data elements (70) and optional document data elements. (71) Countries have the ability to choose the design and color of the fronts of their passports. (72)

Although not directly passport-related, a few miscellaneous databases need background information. The Consular Lookout and Support System (CLASS) is a database used by the State Department to sort through persons wishing to enter the United States via immigrant and non-immigrant visas. (73) Additionally, during a passport application, a namecheck is run through the CLASS, and any wanted sex offender on the list will be noted and the information shared with other governmental agencies. (74)

TECS is a database operated by U.S. Customs and Border Protection to conduct enforcement checks on...