Thursday, July 16, 2009



I want to Post on this right now, although I have not yet read the text of the legislation itself. It’s important in many ways, and of especial relevance to the SO and anti-AWASORNA community.
Jim Harper has Posted several good pieces on the Cato site, and I am linking to his most recent here. Within that Post are links to the other articles he has written.

PASS-ID is a variant on the old REAL-ID legislation, which died an undeclared death a year or so ago. You may recall that REAL-ID wanted to link all State driver-license databases so as to provide the basis for what was in effect – even if they never wanted to call it that – a national ID.

The ostensible purposes for this national ID are to combat terrorism, of course, and thus to increase security.

The SO-AWASORNA community will realize immediately that if ‘terrorists’ are the target problem, then ‘sex-offenders’, the class erected almost 20 years ago and the targets of so much intrusive legislation, cannot be far behind on the target list.

The Registrar of the Massachusetts RMV, Anne Collins, has already stated (and I am quoting Harper’s piece here “’If you build it, they will come.’ What she meant by that is that if you compile deep data bases of information about every driver, uses for it will be found. The Department of Homeland Security will find uses for it. Every agency that wants to control, manipulate, and affect people’s lives will say, “There is our easiest place to go. That is our path of least resistance.”

And the government has been building a ‘sex offender’ database for a couple of decades now, and indeed has tied it into drivers-licensing; in most States you can’t get a license or get your license renewed if you are flagged in a linked sex-offender database – and in some way your SO status will come up in any license-check.So if the government is going to find any more ‘uses’ for information, SOs will be right up there on the top of the menu.

If you travel – even within the country by air, let alone outside the country with a passport – you are going to be liable to ‘flagging’; in that way any of these ID-schemes are going to provide the basis for the old Soviet ‘internal passport’ whereby you couldn’t travel freely without producing ‘your papers’ and exposing yourself to god-knows-what police interference.

The French in the Revolutionary era had ‘yellow passports’, internal ‘papers’ that had to be produced if a person was traveling beyond his/her usual domicile; the 'yellow' indicated to all police and magistrates that you were 'a criminal. Unlike the United States, where the dignity of the individual citizen survived even a criminal conviction, the French system recalled the old 'class' distinctions of the aristocratic era plus the 'ontological' distinctions of the medieval mindset. The Framers were pleased and proud to have gotten beyond that.

And of course the Nazis imposed precisely such restrictions in the countries they occupied, as well as on their own German people (theoretically the ‘master race’, so go figure).

The new Obana-era version of REAL-ID is PASS-ID. It allows, Harper notes, for individuals to vet their own information, but this offers no real help. First, it will be impossible for the government to make it possible for every citizen to correct his/her information. And second, if you are ‘duly’ (I am not saying legitimately) listed as an SO by action of the numerous laws (and AWASORNA is a monster designed precisely to cast the widest possible net), then you can’t change that ‘legal’ information without committing a crime. So for most persons affected in this way, simply having an opportunity to ‘correct’ their information won’t do any real good.

Harper also notes the suspiciously vague ‘limit’ in the bill: nobody “without lawful authority” can access the information. You will recall in a recent Post I had mentioned the pending legislation entitled the SORT ACT OF 2009 (S.1146, H.2612)* This legislation was seeking to allow a private organization – comprised of supporters of Megan’s Law – access to the NCIC database so that they could, on their own, go out in search of SOs who are ‘noncompliant’, ostensibly for the purposes of reporting them to the police. If there are Congressional supporters for that – and there apparently are - then “lawful authority” means a lot more than just duly sworn police personnel in the performance of their duties. And if such zealots can get their hands on the NCIC, then they can easily be ‘lawfully authorized’ to troll this PASS-ID database. You can imagine where that might go.

Further, since the State databases now include a digitized photo of you, then the door is open for biometric tracking around the country. That means facial-recognition software, which can be set up anywhere (not just airports, by any means) and who knows what could flow from that?

In all of this, Harper and others note the eternal danger of ‘mission creep’: what starts out with a limited purpose suddenly expands just because ‘the information is there’ and government operatives (and – as in the Megan’s Law group – interested others) tell themselves ‘we can technologically do it’, which almost always quietly winds up being ‘we have to do it’. And that cannot end well for a democracy.**

The SO community is interestingly placed in all of this. The SO community has up-close and personal experience with such mission creep. I have been reading some of the original New Jersey court cases brought against the first incarnation of ‘Megan’s Law’ back in 1995 (and I will be Posting on those very soon). At that time the objectives of the legislation were disturbing but somewhat limited. But in the past 15 years the ‘mission parameters’ of the legislation have expanded and are still expanding (e.g., AWASORNA), and they are getting worse each time (for democracy as well as for SOs).

So this whole matter of national ID cards and databases must become of great concern, to the SO community but also to any sober and serious American citizen.

One last point. This just came to me this morning over coffee in conjunction with something else I was working on, but it’s important enough, I think, to mention it right away; you will be hearing more about it as I go into the Court cases, and it connects with the crucial US Supreme Court case Smith v. Doe about which I recently Posted.***

One of the most fundamental keys to the legal sustainability of SO laws has been the ‘finding’ that these laws are not ‘punitive’ but only ‘remedial’. Thus, they are not intended to inflict punishment, but merely administrative and regulatory attempts by legislatures to fulfill their responsibility to public safety.

I am reminded of the February 1968 incident of the USS Pueblo. She was a small, clunky, little trawler of a ship of the US Navy whose job was to collect intelligence by picking up electronic transmissions of any kind then known. Though she was manned by a Navy crew, she had no guns and no aircraft and was totally incapable of doing anything a ‘warship’ could do.

Nonetheless, the North Koreans considered her a military ‘threat’ and captured her while she was operating just off their coast, listening with her equipment to their radio transmissions and lots of other stuff.

The Pentagon made some noises about the fact that she wasn’t a warship and therefore she was not a military threat. And in some sense that was true. Or would have been, as late as World War Two and certainly in the age of sail.

But in the electronic age of 1968, though she had no guns or aircraft, she indeed posed a military threat for all practical purposes: she could hear military and government conversations and transmit that information quickly back to Washington, in almost real-time.

The distinction between ‘warship’ and ‘Navy ship’ was completely inadequate to describe her, due to the ‘world’ or the ‘milieu’ surrounding her in 1968: electronics and electronic transmissions were by then an integral part of military operations and any ship capable of tuning into them was capable of directly affecting the military operations.

The Pentagon, for a while, wanted to have it both ways: she was indeed a US Navy ship but she was not a ‘warship’, not a ‘combatant’. But she was not tanker or cargo or supply ship, let alone a hospital ship. She had no guns or aircraft and her purpose was not to conduct shooting-operations, but she was no ‘non-combatant’ – she had the power to inform the actual combatant forces in real-time and she was a potent part of that team.

So too in the sex-offender legislation. To say that the laws are not ‘punitive’ simply because they say they don’t want to be, or because they don’t come ‘armed’ with prison sentences and so forth, is to apply a hugely outdated definitional scheme to a very modern ‘world’: where persons are quickly linked to information (accurate or otherwise), where mass societies can be agitated by vivid stories (accurate or not) and made to fear (rationally or not) for their safety, where electronic databases can keep files on citizens in a way that the Gestapo could only dream of and that not even the old KGB had access to … in a ‘world’ or an ‘environment’ like that, then these laws are indeed possessed of the capability to create serious consequences for individuals that they target.

The legislatures and far far too many of the courts are trying to run the old Pentagon gambit of the Pueblo era: use an old-fashioned definition, so outdated as to be almost ‘unreal’, in order to justify what they’re trying to pull off.

Naturally, their efforts depend upon a whole lotta people just taking their ‘word’ for it and not looking at things any more closely.

That’s where we come in. And that means you.


*See my Post “S.1146: The Camel’s Nose Under the Tent” on this site, June 23, 2009.

**I have a clear impression that here and there in some State-level SO legislation I’ve seen the phrase “the sheriff or his designee” when referring to who is authorized to check up on ‘compliance’ of SOs. If this dot is connected to or winds up connecting to such groups as the Megan’s Law group or to for-profit organizations who are willing to be ‘designated’, then there is profound potential for Constitutional corrosion. The legislation doesn’t say “sheriff or deputy” or indicate that the “designee” has to be a sworn police officer at all.

And as I say in the “Camel” Post listed immediately above, individuals or groups could put themselves forward as potential designees for any number of reasons, and sheriffs could appoint them for any number of reasons: groups may have vendettas, or need to ‘keep their numbers up’; sheriffs may not have the manpower and resources to do all the legislatively mandated checking-up, or may feel that the whole thing is way over the top and that they have more important matters to attend to.

As we are now seeing come to light in Pentagon and Congressional acquisition strategies, you want to craft a plan that has something in it to sweeten the pot for as many worthwhile interested parties as possible. The pro-SO-laws groups get ‘purpose’ and maybe even some funding, lots of creds, and get to’ keep their numbers up’; law enforcement either gets to use groups that are not bound by formal law-enforcement procedures and regulations to do the dirty work, or else it gets to fob off fruitless tasks to groups (groupies, in a way) that are eager to do ‘field work’ under the aura of police authority. You can do an internet search under ‘Vigilantism’ or ‘Iron Guard’ if you need spelled out in a bit more detail just how bad this whole idea is.

***See my Post “Some Thoughts on ‘Smith v. Doe’ of June 23, 2009.


I’ve looked at the legislation (S.1261 in the 111th Congress; entitled the “Providing for Additional Security in States Identification Act of 2009” or the “PASS ID Act”)/ It’s only about 15 pages long and you can review it here. Harper’s discussions pretty much nail it in terms of description. Its relevance to SOs is what I’ve dealt with above.

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