Be Thankful For Less Spam, But Probably Not For Long – Link roundup on activities of questionable legality online

by: Michael Schultz, Associate Editor, MTTLR

You (or your IT staff) may have been thankful to find that spam traffic has been a bit lighter in the last few weeks, after the recent shutdown of a major spam hub that, by some estimates, was responsible for as much as 75 percent of the world’s junk mail. You might have expected the company facilitating all of that spam – not to mention illegally gathered credit card information and child pornography – would have chosen to operate from the relative obscurity of an offshore hosting service. Instead, McColo Corporation set up shop in San Jose, California in a “top-level modern [...] IT center.” To be clear, McColo is merely the “virtual host” for those that are actually sending the spam; something akin to a landlord of an apartment building in which most, if not all, of the apartments are being used for illegal activity.

In an interesting twist, it wasn’t U.S. authorities that shut down the hub – instead the companies that provided internet connection for McColo decided to cut ties. This leaves open the possibility of McColo finding another internet provider – or the individual sites being hosted by McColo to disperse, making them harder to track and shut down. In fact, only two weeks after the shutdown, spam levels are reported to already be back to two-thirds of their previous levels.

Brian Krebs of the Washington Post, who is credited with the initial investigation and breaking the story, writes that “Multiple security researchers have recently published data naming McColo as the host for all of the top robot networks or "botnets," which are vast collections of hacked computers that are networked together to blast out spam or attack others online. These include SecureWorks, FireEye and ThreatExpert.” According to Mr. Krebs, “[what is] unclear is the extent to which McColo could be held legally responsible for the activities of the clients for whom it provides hosting services. There is no evidence that McColo has been charged with any crime, and these activities may not violate the law.”

So what is the law (and what should it be?) in this murky, seedy area of the internet? Below is a roundup of various links that may help to address that question:

FBI wants widespread monitoring of 'illegal' Internet activity
Illegal Internet Activity a Growing Concern for Enterprise Organizations
Using the Law to Address Illegal Activity on the Internet
Employer responsibility to report illegal activities established by Court
FBI Internet Crime Complaint Center

Employee text messaging privacy in the wake of the Detroit mayoral scandal

by: Marc Kaplan, MTTLR Associate Editor

Image Andy texting what Cheney should say by Steve Rhodes.
Used under a Creative Commons BY-NC-SA 2.0 license.

Text messaging has exploded in popularity in the U.S. and around the world. Indeed, 75 billion text messages were sent in the U.S. in June 2008 and 40% of American teenagers believe they can text blindfolded. With so many communications exchanged through this medium, the privacy of text messages has come under legal challenge in a number of contexts. Employees frequently have access to text-messaging through work-provided devices, and not-uncommonly use the devices to send personal messages. Whether they can expect privacy in relation to those messages is an unsettled legal matter.

A case study: the Kilpatrick Scandal

In one example, former Detroit mayor Kwame Kilpatrick resigned from office in September, under criticism after his “private” text messages – from his government-issued pager – were revealed following a whistler-blower suit. The suit alleged that the mayor unlawfully discharged Detroit police officers because he was afraid the officers would reveal his extra-marital relationship with his Chief of Staff, Christine Beatty. At trial, the mayor contended that allegations of an affair were "preposterous", and the vigorous defense was able to preserve the text messages from discovery before the trial. Even without the messages as evidence, the jury found the mayor guilty and gave the aggrieved officers a multi-million dollar verdict.

After the trial, the plaintiffs succeeded in obtaining the text messages through subpoena, and discovered that they bared a rather different story than that maintained by Kilpatrick.

Beatty: "And, did you miss me, sexually?"
Kilpatrick: "Hell yeah! You couldn't tell. I want some more. "
Detroit Free Press

With this new leverage, the plaintiffs offered to settle as opposed to fighting through the appeal. The mayor agreed to the settlement, in what appears to have been an attempt to cover up the newly exposed text messages.Although the issue was litigated all the way to the Michigan Supreme Court it was eventually ruled that the settlement agreement was a public record and subject to the state’s freedom of information act.The text messages, now accessible to the public, have continued to be relevant in subsequent proceedings against Kilpatrick and Beatty for perjury, conspiracy, obstruction of justice, misconduct, and other charges.

Employee privacy protections

Courts have split over the protections given to text messaging, attempting to weigh the need to access communications in the ubiquitous and casually-used medium against privacy concerns.

In Quon v. Arch Wireless Operating Co, a highly publicized case factually similar to Kilpatrick’s, a police department searched an officer’s text messages to determine whether the officer exceeded his quota of text messages by using it for personal communications. The district court held that the officer’s text messages sent through the government-issued pager were subject to the privacy protections of the Stored Communications Act and were therefore not searchable by his employer. The 9^th Circuit affirmed in part and held that the officer had a reasonable expectation of privacy in the text messages and that the search had violated his 4^th Amendment rights.

Not all courts have broadly construed the Stored Communications Act or constitutional protections of text message privacy. Indeed, in a separate case involving Mayor Kilpatrick’s text messages as they related to a murder investigation, a district court in the 6^th Circuit breezily distinguished Quon by holding that it was inapplicable to a case with the same fact pattern but where personal text messages were not the targetof the search.

These holdings appear contradictory, but the more important issue may be what questions the cases leave unanswered. Quondoes not specify whether the holding should apply to both public and private employers. Commentators also also disagree on whether Quon will change employers’ practices significantly. Drawing general rules from these cases or trying to predict the direction of this fertile area of the law appears fraught with danger, as does texting personal messages from your work-issued Blackberry®, unless you live in California.

Google Launches Highly Anticipated Chrome Browser; the Tech Community Reacts

by Sara Skinner, MTTLR Associate editor

Google launched a beta version of its new Chrome web browser on September 2nd. Prior to launch, Google released a comic book depicting the various engineering and design decisions that went into the browser. The result of all these innovations, Google claims, is a safer, smarter, faster way to surf the internet - but industry members and community watchdogs are raising security and privacy concerns.

One issue that plagues virtually all beta-version software is security problems that don’t emerge until the software is disseminated to a large number of users. The comic documents Google's efforts to eliminate as many security flaws as possible before launch by employing a “Chrome bot” to automatically test the browser more thoroughly. Google has also responded swiftly to address the emerging issues after launch, and released their first security update within a few days after the initial launch (although they were not forthcoming about which issues the update had addressed.)

One major source of concern for privacy advocates is the browser’s Omnibox, a multi-purpose search box/URL input field. The Omnibox helps users fine-tune their search and browse experience, but it also constantly sends information about users’ surfing and searching habits back to Google’s headquarters. About two percent of data sent back will be stored with the IP address of the computer that sent it. Users can avoid this by surfing Incognito (a privacy mode that turns off cookie storage) or by disabling the auto-suggest feature, but privacy advocates are worried about the amount of personal information being handled by Google — which the average user may not even realize is being collected.

The Terms of Service for the new browser have not been without controversy, either. When initially launched, Chrome’s terms granted Google extensive rights to user content. Google acknowledged that such restrictive terms were part of a standard boilerplate and shouldn’t have been included. The Terms of Service have since been revised and no longer grant user content rights to Google.

Some of the loudest opposition to the Chrome browser’s privacy practices is coming from privacy advocates in Europe where a user’s IP address is considered personal data. While Google has responded that its privacy data retention is governed by US law, it agreed to shorten its search bar IP retention policy to nine months. It is also working on a way to anonymize IP addresses and cookies when users search in the Google Omnibox.

Screen shot from September 14, 2008 (http://www.google.com/googlebooks/chrome/small_02.html).

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Sources:
Scott McCloud & The Google Chrome Team, Google Chrome, Google, (last visited Sept. 14, 2008).
Stephen Shankland, Google Fixes Chrome Vulnerabilities—But Won’t Say Which, Cnet News, Sept. 8, 2008.
Explore Google Chrome Features: Incognito Mode, Google Chrome Help Center, (last visited Sept. 14, 2008).
Ina Fried, EFF: We’re Concerned About Google’s Omnibox, Cnet News, Sept. 3, 2008.
Ina Fried, Be Sure to Read Chrome’s Fine Print, Cnet News, Sept. 2, 2008.
Google Tweaks Chrome License Text, BBC News, Sept. 4, 2008.
Google, Google Chrome Terms of Service, Google, (last visited Sept. 14, 2008).
Peter Fleischer, Response to the Article 29 Working Party Opinion on Data Protection Issues Related to Search Engines, Google, Sept. 8, 2008.
Kurt Opsahl, Google Cuts IP Retention to Nine Months, Electronic Frontier Foundation, Sept. 9, 2008, (last visited September 14, 2008).
Ellen Nakashima, Google Promises Privacy Fixes in Its Chrome Browser, The Washington Post, Sept. 9, 2008.

The Mind as the New Battleground for Individual Rights

by: Richard M. Marsh, Jr., Associate Editor, MTTLR

From its beginnings, this country has created laws designed to protect the individual. The U.S. Constitution itself was amended to include provisions guaranteeing certain basic individual freedoms. Over time, new laws and flexible judicial interpretations have balanced the protection of individual rights against new technological developments. However, there are breakthroughs currently available and innovations on the horizon which threaten to upset the carefully constructed balance.

Specifically, neuro-scientific advancements now allow access to an individual’s mind. One example is fMRI technology which, now or very soon, will be capable of invading one’s mind and seeing thoughts as they happen. ¹ Various news agencies report that scientists can currently “see” when a subject recognizes ² or thinks about a photo, ³ is sexually aroused, ⁴ or lies. ⁵ Other reports indicate that refinements are not too far away which will enable users to perceive individual thoughts. ⁶ Another example is propranolol, a drug which can effectively dampen or erase prior memories. ⁷ A third example involves brain to computer interfaces which have the ability to monitor and change brain wave patterns. ⁸ While these developments can produce significant advantages for individuals and society, potential misuses could quickly unravel into serious violations of individual rights.

Mind invasive technology opens the door to practices which could violate many of the rights enshrined in the Bill of Rights. For example, it is easy to imagine a scenario where fMRI technology could be used to violate a civilian’s right to privacy, initiate an unreasonable search in violation of the Fourth Amendment, or even run afoul of the self-incriminating clause of the Fifth Amendment.

Furthermore, the need for protection from mental invasion is not only based on the constitution. For example, if used in interrogation techniques, fMRI technology could violate rights protected under international standards, including the International Human Rights Law. ⁹

Current legal protection may or may not ensure against these violations. For example, in Kyllo v. United States, ¹⁰ the Supreme Court ruled that using sense-enhancing technology (an infrared camera) without a search warrant to “see” inside a home violated the Fourth Amendment. ¹¹ Justice Scalia applied the Katz test and stated “obtaining by sense-enhancing technology any information . . . that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . constitutes a search – at least where (as here) the technology in question is not in general public use.” ¹² The last phrase included by Justice Scalia could be interpreted to imply that the more popular a technology becomes, the less likely that courts will interpret the use of it by police as a search. Taken to the extreme, if the technology becomes common place, an fMRI search by police may become a “reasonable search” for purposes of the Fourth Amendment. However, the nature of fMRI technology is so invasive of an individual’s thoughts that the use of mind-reading technology should never be considered “reasonable.”

These illustrations only scratch the surface of the many dilemmas awaiting us as science continue to march forward. Nevertheless, the severity of the potential harms should advise us to be cautious and safeguard our fundamental rights as we implement each new innovation.

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¹  FMRI technology can also be used to change individual behavior. Jason Ponton, Mind Over Matter, With a Machine’s Help, N.Y. Times, Aug. 26, 2007.
²  CNN.com, See it, imagine it -- it's the same to your brain, Nov. 2, 2000.
³  Faye Flam, Your Brain may Soon Be Used Against You, Phila. Inquirer, Oct. 29, 2002.
⁴  ScienceDaily.com, Pedophiles Have Deficits In Brain Activation, Study Suggests, Sep. 24, 2007.
⁵  BBC News, Can brain scans detect criminals?, Sept. 21, 2005.
⁶  BBC News, Brain scan 'can read your mind', Feb. 9, 2007.
⁷  Adam J. Kolber, Therapeutic Forgetting: The Legal and Ethical Implicaions of Memory Dampening, 59 Vand. L. Rev. 1561, 1574-78 (2006).
⁸  Emmet Cole, Direct Brain-to-Game Interface Worries Scientists, Wired, Sept. 5, 2007.
⁹  See Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 Cornell L. Rev. 1601 (2005).
¹⁰  Kyllo v. United States, 533 U.S. 27 (2001).
¹¹  Id. at 40.
¹²  Id. at 34.

An Overview of Telecommunications Companies' Involvement in Domestic Espionage: Part II

by: Joseph Eros, Associate Editor, MTTLR

Editor's Note: This post continues yesterday's Part I, which discussed the background of the litigation against telecommunications companies for their involvement in domestic espionage by the NSA.

If the lawsuits are allowed to proceed, the plaintiffs may present testimony from witnesses claiming direct knowledge of AT&T’s close involvement with the NSA. Mark Klein, a retired AT&T technician, filed a declaration describing the installation of a secure room, accessed only by NSA-cleared personnel, in an AT&T switching facility. According to Klein, "the content of all the electronic voice and data" transmitted through AT&T’s switches was transferred into the NSA secure room.¹⁹

Documents presented by former Qwest CEO Joseph Nacchio during his trial on insider-trading charges could also reveal important evidence for the telecom suits: Nacchio claimed that Qwest lost NSA contracts because the company refused to share its customers’ calling information. However, the details of Nacchio’s allegations have so far been revealed only in closed-door court sessions.²⁰

By the time the Ninth Circuit is ready to rule, though, its opinion may be irrelevant. President Bush has called for the planned amendments to FISA to include immunity for the companies who may have shared customer information with the NSA: "[FISA] needs to be changed, enhanced, by providing the phone companies that allegedly helped us with liability protection."²¹ The President has said he will not sign any FISA amendments unless they include immunity.²²

Although few laws exempting specific industries from liability suits have been passed, there is a recent example. The Protection of Lawful Commerce in Arms Act,²³ passed in October 2005, shields firearms manufacturers from suits for "the harm caused by those who criminally or unlawfully misuse firearm products . . . that function as designed and intended."²⁴ Its enactment ended lawsuits against gun manufacturers by cities seeking compensation for the costs of gun violence.²⁵

The Senate Select Committee on Intelligence has included an immunity provision into its FISA amendment bill:

Notwithstanding any other provision of law, a covered civil action shall not lie . . . and shall be promptly dismissed, if the Attorney General certifies to the court that the assistance alleged to have been provided by the electronic communications service provider was . . . in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001 and ending on January 17, 2007.²⁶

No committee-approved House version of the bill includes a telecommunications immunity provision. Speaker of the House Pelosi has conditioned such legislation on House investigation of the surveillance program, saying that "you can't even consider such relief unless we know what people are asking for immunity from."²⁷

Given the continuing disputes with Congress over supervision of classified activities, it seems unlikely that the House would be satisfied with the White House’s explanations the Bush Administration would be prepared to offer. So President Bush and the rest of us will probably have to wait for the Ninth Circuit to see if the AT&T and the other telecommunications companies can be held liable for following the NSA’s orders.

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¹⁹  Klein Declaration in at Hepting v. AT&T, June 8, 2006, at ¶34, available at http://www.eff.org/files/filenode/att/KleinDecl-Redact.pdf.
²⁰  Andy Vuong, Judge Denied Use of Spying Data, Denver Post, Oct. 11, 2007, available at http://origin.denverpost.com/breakingnews/ci_7141986.
²¹  President George W. Bush, White House press conference (Oct. 17, 2007), available at http://www.whitehouse.gov/news/releases/2007/10/20071017.html.
²²  Peter Grier, Fight Over Court Role in US Eavesdropping, Christian Science Monitor, Oct. 12, 2007, available at http://www.csmonitor.com/2007/1012/p03s02-uspo.html.
²³  15 U.S.C.A. § 7901.
²⁴  15 U.S.C.A. § 7901(a)(5).
²⁵  See Leslie Wayne, Smith & Wesson Is Fighting Its Way Back, New York Times, April 11, 2006, available at http://www.nytimes.com/2006/04/11/business/11guns.html.
²⁶  Section 202 of the FISA Amendment Acts of 2007, as passed by the Senate Select Committee on Intelligence on October 18, 2007, at 45-46, available at http://intelligence.senate.gov/071019/fisa.pdf.
²⁷  153 Cong. Rec. H11653 (daily ed. October 17, 2007) (statement of Rep. Pelosi), available at http://www.gpoaccess.gov/crecord/07crpgs.html by selecting October 17.

An Overview of Telecommunications Companies' Involvement in Domestic Espionage: Part I

by: Joseph Eros, Associate Editor, MTTLR

In May 2006, USA Today reported that several of the USA’s largest telecommunications companies had been turning over information on "billions of domestic calls" to the National Security Agency (NSA), giving the agency "a secret window into the communications habits of millions of Americans."¹ USA Today’s detailed report confirmed earlier revelations by the New York Times of ongoing monitoring of domestic telephone calls.² The exact extent of the monitoring remains unclear (not surprisingly for a highly-classified program); USA Today later reported that it could not "confirm that BellSouth or Verizon contracted with the NSA to provide bulk calling records" although it did confirm AT&T’s involvement.³

Because the calls were mostly between US citizens within the USA, the US government would need a warrant in order to monitor them. The Foreign Intelligence Surveillance Act (FISA), 50 USC 1801 et seq, allows warrantless surveillance of the electronic communications of agents of foreign powers either within the USA or outside of it, but a secret FISA court must approve a warrant in order for the communications of a US citizen within the USA to be surveilled.⁴

Within a few months, over 40 lawsuits had been filed against the major telecommunications companies, mostly by civil liberties groups. Most of these suits were later consolidated into one action in the Northern District of California.⁵ The plaintiffs alleged that the NSA surveillance was in violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2702(a)(1),⁶ Federal laws against eavesdropping on wire and radio communications (18 U.S.C. §§ 2511)⁷ and (47 U.S.C. § 605),⁸ and FISA,⁹ as well as the privacy laws of all 50 states and the District of Columbia.¹⁰

The activists sought statutory damages (for example, the ECPA specifies damages of "no less than $1,000 for each aggrieved Plaintiff or Class Member" (18 U.S.C. § 2707),¹¹) as well as an injunction "restraining Defendants from continuing to make such unlawful disclosures."¹² This consolidated action awaits further developments in an earlier suit against AT&T’s disclosures to the NSA, Hepting v. AT & T Corp.¹³ The government sought dismissal of the Hepting claims based on the state secrets privilege. If information about which call records were disclosed and how the information was gathered could not be presented in court due to its potential to reveal US intelligence methods, the plaintiffs would be unable to prove their claims, and AT&T would be unable to defend itself.¹⁴ This argument succeeded for the government at AT&T in Illinois, where a lawsuit over the alleged disclosures to the NSA was dismissed in July 2006.¹⁵

But in California’s Northern District it failed: Judge Walker held that the

subject matter of this action is not a 'secret' for purposes of the state secrets privilege and it would be premature to conclude that the privilege will bar evidence necessary for plaintiffs' prima facie case or AT & T's defense. Because of the public disclosures by the government and AT & T, the court cannot conclude that merely maintaining this action creates a 'reasonable danger' of harming national security.¹⁶

The suits could continue, with classified evidence handled by personnel with security clearances following special procedures.¹⁷

Unsurprisingly, the Federal government and AT&T appealed. The Ninth Circuit heard arguments on August 15, 2007, and "repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security."¹⁸ No ruling is expected for months.

Editor: Part II will publish tomorrow. It will address evidence of telecommunications companies' involvement in warrantless NSA espionage, and dissect the debate over whether to extend immunity to those companies.

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¹   Leslie Cauley, NSA has massive database of Americans' phone calls, USA Today, May 11, 2006, available at http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm.
²  James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, December 16, 2005, available at http://www.nytimes.com/2005/12/16/politics/16program.html.
³  A Note to Our Readers, USA Today, June 30, 2006, available at http://www.usatoday.com/money/industries/telecom/2006-06-30-nsa_x.htm.
⁴  U.S. citizens traveling abroad can have their calls monitored with no warrant required, only the Attorney General’s approval. See U.S. v. Bin Laden, 126 F.Supp.2d 264, 279 (S.D.N.Y. 2000).
⁵  See In re National Sec. Agency Telecommunications Records Litigation, 444 F.Supp.2d 1332 (Jud. Pan. Mult. Lit. 2006).
⁶  Master Consolidated Complaint Against Defendants AT&T Mobility et al. for Damages, Declaratory and Equitable Relief at ¶90, In re Nat. Sec. Telecommunications Records Litigation, MDL-1791, No. 06-1791 (VRW), 2007 WL 668730 (N.D. Cal. Jan. 16, 2007).
⁷  Id. at ¶118.
⁸  Id. at ¶125.
⁹  Id. at ¶133.
¹⁰  Id. at ¶260.
¹¹  Id. at ¶102.
¹²  Id. at ¶128.
¹³  439 F.Supp.2d 974 (N.D. Cal. 2006).
¹⁴  Id. at 985.
¹⁵  Terkel v. AT & T Corp., 441 F.Supp.2d 899 (N.D. Ill. 2006).
¹⁶  Hepting v. AT&T, 439 F.Supp.2d at 994.
¹⁷  Id. at 1010-11.
¹⁸  Declan McCullagh, Appeals court may let NSA lawsuits proceed, CNET News.com, Aug. 15, 2007, http://www.news.com/Appeals-court-may-let-NSA-lawsuits-proceed/2100-1028_3-6202865.html.

Questions Raised by Municipal Control of Wi-Fi

by: Jason Miller, Associate Editor, MTTLR

Politicians in Oakland County, Michigan, a wealthy suburb of Detroit, are currently implementing a plan to cover 910 square miles with free Wi-Fi.¹   San Francisco Mayor Gavin Newsom has been trying to promote free public Wi-Fi and, though the plan has run into serious problems, a non-binding public vote will be held in this November’s municipal election ballot.²   Dozens of city governments have put together municipal Wi-Fi programs,³   though these programs often turn out to be more hype than substance.⁴   The economics behind municipal Wi-Fi are also troubling. As voters and elected officials consider expanding local government’s role in providing or contracting for Internet, there are some other unique questions worth asking.

Politics

Libraries often face disputes over content. From banned books to border-line pornography to filtering the Internet, libraries are often subject to political decision making. Should your mayor to be in a position to filter Internet content? Angry parent groups could take their gripes to city council meetings, and private providers contracting for an exclusive deal may tailor their offerings to win support from activist groups.

Michigan’s Republican Senate Majority Leader blocked access among all senate employees to a liberal blogger’s website earlier this year, though he later relented.⁵   Is it safe to trust politicians with power when it comes to the Internet?

Hate groups

Internet providers often prohibit certain uses in their terms of service. When Earthlink decides it doesn’t want the KKK to use Earthlink’s servers for a website, there are no First Amendment implications. But what about Earthlink doing so as the exclusive provider, or almost exclusive provider, in a town? Or if a local government provides and markets the service itself? Will racist and other unpopular groups be able to bring First Amendment claims to post their views?

Police

The federal government and the PATRIOT ACT are responsible for many electronic privacy concerns. However, local government’s providing or contracting Wi-Fi services should also raise privacy concerns. If your email is housed on servers within a county building, what steps will the sheriff’s department have to go through to get it? Will providers operating under lucrative government contracts be too willing to turn over personal information?

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¹  Wireless Oakland Frequently Asked Questions, http://www.oakgov.com/wireless/faq/ (last visited Oct. 31, 2007).
²  Posting of Miguel Helft to Bits, http://bits.blogs.nytimes.com/2007/08/31/san-franciscos-wi-fi-fog/ (Aug. 31, 2007, 15:47EST).
³  Anthony Sciarra, Note, Municipal Broad Band: The Rush to Legislate, 17 Alb. L.J. Sci. & Tech. 233, 235 (2007).
⁴  Sharon E. Gillett, Municipal Wireless Broadband: Hype or Hope?, 79 S. Cal. L. Rev. 561 (2006).
⁵  ZDNet Government, http://government.zdnet.com/?p=3351 (Aug. 7, 2007, 16:18EST).

An Overview of Problems Raised By GPS Supervision Laws

by: Brandon Saunders, Associate Editor

There are a number of concerns raised by the flurry of new laws aimed at toughening the community sanctions for persons convicted of sexually-based offenses. Many of these laws are patterned and named after Florida’s 2005 Jessica Lunsford Act (Jessica’s Law), which bears the name of the young girl raped and murdered that same year.

California’s version of the law, the Sexual Predator Punishment and Control Act (SPPCA)¹, was passed by ballot last year and has already encountered a number of challenges. Receiving much of the attention recently are the residency restrictions imposed on paroled sex offenders.²  Somewhat lost in the debate, though, has been the question of the increasingly mandatory GPS supervision of sex offenders. Leaving aside the logistical problems³ and the questionable effectiveness of the technology⁴, there are also the legal issues raised by the tracking, which is required for the lifetimes of a growing segment of such offenders.

A District Court held in February of this year that California’s SPPCA did not apply to those offenders released prior to the law’s passage.⁵  The ruling, based on the lack of demonstrated legislative or voter intent, stops short of asserting that such sanctions cannot apply retroactively, and the decision seems to invite future legislation that would facially (or through “very clear” voter intent) widen its scope.

The same law is also creating problems for California state agencies faced with the voters’ mandate but uncertain how to implement the new restrictions, or even who exactly is responsible for the implementations.⁶

These and other uncertainties in this wave of legislation are indicative of a public policy that finds axiomatic the notion that the cure to social ills is only the next generation of technology away. And the push to implement law at the pace of these developments in technology is creating at least as many problems as it’s addressing.

While the best solution to the problem of sex offender recidivism will almost certainly involve some of the capabilities of community tracking for some sexually violent offenders, our efforts until now have been far more politically appealing than effective. The push to apply this technology needs to be tempered by a thorough look at not only the extent of the problem, but the limits of the technology.

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¹  The Sexual Predator Punishment and Control Act: Jessica’s Law, http://www.83yes.com/language (last visited October 20, 2007).
²  Andy Furillo, Moving In on Sex Offenders, SACRAMENTO BEE, October 12, 2007, at A4, available at http://www.sacbee.com/111/story/428345.html (last visited October 20, 2007).
³  Sentencing Law and Policy, http://sentencing.typepad.com/sentencing_law_and_policy/(April 14, 2007, 13:30 EST).
⁴  Randy Dotinga, Attack of the Perv Trackers, WIRED, http://www.wired.com/science/discoveries/news/2006/11/72094 (last visited October 20, 2007).
⁵  Doe v Schwarzenegger, No. 06-6968 (D.N.D.Ca. Feb 22, 2007), http://prop83.org/Order%20of%20Dismissal.pdf.
⁶  Michael Rothfield, Some Sex Offenders Go Untracked, L.A. TIMES, October 19, 2007, available at http://www.latimes.com/news/local/la-me-offenders19oct19,0,6116786.story, (last visited October 20, 2007).