Predator Opinion Letter

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					Law Offices
R. SEBASTIAN GIBSON Attorneys and Counselors at Law
e-mail: SGibsonEsq@aol.com www.SebastianGibsonLaw.com 41-750 Rancho Las Palmas Dr., #K3 Rancho Mirage, CA 92270 Tel (760) 776-1810 * Fax (760) 568-2288 Of Counsel Eric Hanscom

August 14, 2009 Mr. Trip Wakefield, CEO ThinAir Wireless 5821 Sam Houston Pkwy, Ste. 500 Houston, Texas 77041 RE: POM Offender Locator/Apple Notice of Possible Illegality Dear Mr. Wakefield: As I understand your product, it allows users to view the locations of Registered Sex Offenders living in the U.S. and thus provides residents in the U.S. the ability to learn whether Registered Sex Offenders live in their area. The App provides access to data compiled from all 50 states’ “Registered Offender Databases.” I also understand that as a result of two articles that appeared on TechCrunch which questioned whether criminal information could be sold for profit, you received a Notice from Apple Legal that it had come to their attention that the use, sale or distribution of your application, “Offender Locator” might be illegal or unlawful in territories where it is available for download. You have asked this law firm to provide you with a legal opinion letter as to the legality of the POM Offender Locator in the State of California. We provide you with the following analysis. The Legislative Intent When the original Child Protective Act was passed by the State Assembly in the State of California, it was stated by the Legislature in the Preamble to the Bill that “It is a compelling and necessary public interest that the public have information concerning persons convicted of offenses involving sexual behavior collected pursuant to Sections 290 and 290.4 of the Penal Code to allow members of the public to adequately protect themselves and their children from these persons.” The legislature was concerned with the possibility that release of this information might be misused, and addressed that issue in this way: “The Legislature also declares, however, that in making information available about certain sex offenders to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense. While the Legislature is aware of the possibility of misuse, it finds that the dangers to the public of non-disclosure far outweigh the risk of possible misuse of the information.”

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The Legislature further stated, “Releasing the home addresses and other information pertaining to specified registered sex offenders is not intended to further punish them for their offenses, but to allow the public to be aware of their presence in the community and take appropriate and lawful safety precautions on behalf of themselves and their children.” When AB Bill 488 was proposed in 2004 to establish a California Megan’s Law Internet Web Site, pursuant to Penal Code Section 290.46, some of the language from previous statutes found its way into the Bill and into the Legislative intent. For instance, it was stated that one of the purposes of the Bill was to prohibit the use of information disclosed on the internet web site for specified discriminatory purposes and that information disclosed may only be used to protect persons at risk. While “persons at risk” was not defined in the Bill, based on the previous statement by the Legislature in it’s intent in passing the Bill, it apparently included anyone feeling the need to take appropriate and lawful safety precautions on behalf of themselves or their children. The Legislature noted that prior to the establishment of an internet web site, the database simply wasn’t readily accessible for many Californians. It was generally available only at police stations in urban areas and only available for a limited number of hours, hours that may pose difficulties for working parents. Noting that the internet could solve this problem, the Legislature stated: “The internet is a great vehicle for sharing information. Almost every citizen has Internet access, whether it is at his or her public library, workplace, school, or home computer. As a result, this bill requires DOJ [Department of Justice] to establish an Internet web site to make sex offender information more easily accessible. Over 30 states already provide sex offender information on the Internet. California typically leads the nation in the area of technological innovations, yet, in this instance, California is behind the majority. The recent United States Supreme Court decision in Smith v. Doe provides a ‘green light’ for California to join the states that are doing what is needed to protect the public’s safety.” In the Assembly Bill Analysis, the Legislature further discussed that important court opinion in this way: “On March 5, 2003, the U.S. Supreme Court decided the case of Smith v. Doe, (2003) 123 S. Ct. 1140, ruling that the Alaska Sex Offender Registration Act does not impose unconstitutional punitive restraints. The court held that posting the information on the Internet was not punitive, that the purpose and principal effect of notification are to inform the public for its own safety, not to humiliate the offender.” The Legislature quoted from the decision in that case, “Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. The state’s web site does not provide the public with means to shame the offender by posting comments underneath his record. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective and convenient.” 2

The California Statutes When AB Bill 488 was passed, the primary focus of the legislature was to protect children at risk. This too was the legislative intent in previous penal code sections passed making the Megan’s Law database available to the public. Today still, as in previous Penal Code Sections, any use of the information disclosed on the Megan’s Law internet Web Site for purposes other than to protect a child at risk or to use that information for purposes such as the denial of health insurance, other forms of insurance, loans, credit, employment, education, housing or benefits is prohibited. Protection of any child at risk thus is both the basis for the disclosure of Registered Sex Offender information in California and the exception when that information is used in matters such as employment or housing when it would otherwise be illegal to use this information. The applicable Penal Code sections in California also make it illegal to use the Megan’s Law information to commit a misdemeanor or a felony. To prevent that from occurring, in earlier versions of the Penal Code statutes when the information was only available on CD-ROM, applicants viewing the information had to provide identification and proof of age, sign a form that they were not a registered sex offender and that they understood that the purpose of the release of information was to protect themselves and their children from sex offenders and that it is unlawful to commit a crime against any registrant or to engage in any discrimination or harassment of any registrant. Controls over the dissemination of the information contained on the CD-ROMs was strictly controlled. Any person copying or distributing them could be punished, though one was not prohibited by copying information by handwriting. If a law enforcement agency disclosed information pursuant to these penal codes, it had to include with the disclosure that the purpose of the release of information was to allow members of the public to protect themselves and their children from sex offenders. In the 2003 Penal Code Statute 290.45, the statute contained this language, “For purposes of this section, ‘at risk’ means a person is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender. Today, the release of Sex Offender information by law enforcement entities and other entities is governed by Penal Code Section 290.45 which states that a law enforcement entity may provide information to the public by whatever means the entity deems appropriate, when necessary to ensure the public safety. The law enforcement entity is required to include with the disclosure, a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders. Community notification by way of an Internet Web site is governed by Penal Code Section 290.46. Penal Code Section 290.45 also states that the designated law enforcement entity may authorize persons and entities who receive the information to disclose it to additional persons only if the entity determines that disclosure to the additional persons will enhance the public safety and identifies the appropriate scope of further disclosure. A law enforcement entity may not authorize any disclosure of this information by its placement on an Internet Web site. 3

Penal Code Section 290.45 provides that a person who receives information from a law enforcement entity may disclose that information only in the manner and to the extent authorized by the law enforcement entity. For purposes of the code section, “designated law enforcement entity” includes the Department of Justice, every District Attorney, and every state or local agency expressly authorized by statute to investigate or prosecute law violators. I understand that you are seeking the authorization of one of these law enforcement entities to disclose the Megan’s Law Registered Sex Offender information from the State of California on your Application. Prior Amendments to this Penal Code section and the wording of the current Penal Code Section 290.45 would indicate that the key here is to not only obtain authorization to disclose the Megan’s Law information, but also to obtain permission to disclose the information in the manner and scope your Application allows for it to be distributed. You should also obtain from the law enforcement agency a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders and anyone who is or may be exposed to a risk of becoming a victim of a sex offense committed by a sex offender. Previous statute language stated that any person who receives information from a designated law enforcement entity pursuant to the statute may disclose that information in the manner and to the extent authorized by the law enforcement entity. While law enforcement agencies disseminating the information to the public were previously required to maintain records of the means and dates of dissemination, that does not appear to be required by the current statute and is not required of those entities to whom permission is granted to further disclose the information. Penal Code Section 290.46 which provides the framework for the community notification by way of the state’s internet web site has two versions, one that is operative until January 1, 2010 and one that applies subsequently. They are nearly identical. Of importance are the penalty provisions for misuse of the web site information. Penal Code Section provides that any person who uses the information disclosed to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than $10,000 and not more than $50,000. Any person who uses the information disclosed to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment. Additionally, use of the information for purposes related to health insurance, insurance, loans, credit, employment, education, scholarships or fellowships, housing or accommodations, or benefits, privileges or services provided by any business is prohibited unless it is used to protect a person at risk. Of importance to ThinAir’s use of the information, Penal Code Section 290.46 states that a person is authorized to use information disclosed pursuant to this code section only to protect a person at risk. As you may recall from the discussion above, the 2003 Penal Code Statute 290.45 contained this language, “For purposes of this section, ‘at risk’ means a person is or may be exposed 4

to a risk of becoming a victim of a sex offense committed by the offender. The current Penal Code Section 290.45 states that when a law enforcement entity discloses the information, it is to be with

a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders. In my opinion, if ThinAir is authorized by a law enforcement entity to disclose the information in the manner and scope of their Application, you should state in any description of your Application and in your disclaimers that the information is only provided to those members of the public to protect themselves and their children from sex offenders and any persons who are or may be exposed to a risk of becoming a victim of a sex offense committed by a registered sex offender. Without that type of statement and the limitation on the sale of your App for that purpose, an entity deemed to be using the information for a purpose other than “to protect a person at risk” runs the risk of lawsuits for actual damages, and up to three times the actual damages and not less than $250.00, attorney’s fees, exemplary damages, or a civil penalty not exceeding $25,000 pursuant to Penal Code Section 290.46. Without that permission from a law enforcement agency, I believe that your Application would be in violation of these Penal Code sections and in that situation Penal Code Section 290.46 provides that whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern of misuse of the information available via an Internet Web site established under the framework set up by these Penal Code sections, the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse may bring a civil action for an injunction, restraining order or other order against the person or persons responsible for the pattern or practice of misuse, independent of other provisions of law, which according to the Attorney General’s website may include an award of money damages. If on the other hand, ThinAir obtains its sex offender information from another entity such as the National Sex Offender Registry which reportedly already obtains the sex offender records from all 50 states, they may well have already obtained permission to further distribute these records from a law enforcement entity in California. California Attorney General Opinions There may be a reduced risk of possible lawsuits from Registered Sex Offenders as a result of Attorney General Opinion No. 05-301 dated April 27, 2006. In that Attorney General Opinion, it was declared that the California Megan’s Law Web site does not in itself quality registered sex offenders as a “protected class” at least for the purposes of housing discrimination under the Fair Employment and Housing Act. In making that Opinion, the Attorney General quoted from the preamble to the statutory scheme providing for disclosure of Registered Sex Offender information, which states, “The Legislature also declares, however, that in making information available about certain sex offenders to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense. While the Legislature is aware of the possibility of misuse, it finds that the dangers to the public of nondisclosure far outweigh the risk of possible misuse of the information. The Legislature is further aware of studies in Oregon and 5

Washington indicating that community notification laws and public release of similar information in those states have resulted in little criminal misuse of the information and the enhancement to

public safety has been significant.” The TechCrunch Article Comments As I understand it, the reason Apple may have pulled the “Offender Locator” Application from its App store is as a result of comments by individuals commenting to articles and statements made by people posting comments on TechCrunch, Top Tech News and/or blogs who stated their non-legal opinions and suppositions that the Application might be illegal under California law because it is illegal either to sell criminal information for profit or personal information of people for profit. Examining those comments and some of the responses, I provide a sampling: “This app makes me uncomfortable, that said, is it repackaging and selling the info or is it selling an app facilitating access to the info and would that then be legal?” “This app is not legal, at least under CA law. Selling the personal information of people (even ex-criminals) for profit is forbidden. “I’m not a lawyer, but probably just because it’s illegal to sell this kind of information doesn’t mean its illegal to create and sell an app that allows someone to view this kind of information on their iPhone (which is what they’re doing). “You have to pay for background checks, which even if provided by the state is for profit (There are vendors who provide the service as well, but all they do is siphon the data from the states/fbi).” “The reviewer who claims “selling” this information is illegal under CA law isn’t quite right. The disclosure terms on the California Megan’s Law website-where such a disclaimer would be prominently highlighted-list no such not-for-profit requirement. The valid uses for this information are to “protect a person at risk,” which this application could clearly claim to do.” “I fail to understand why, in proposing a rationale for why this app might have been pulled, you relied on legal advice from a TechCrunch commentator on your previous story, but somehow didn’t even attempt to verify that proposition with a lawyer. Or failing that, the CA Dept. of Justice, who helpfully puts their phone number on their web (http://www.meganslaw.ca.gov/colang=ENGLISH). Isn’t this what journalists do?” “Yes its public info. That’s the point. He’s taking public personal information and selling it. =illegal. That would be the same as me taking all my friends phone numbers on facebook and selling them to spammers.” “You are obviously not a lawyer. There’s no law against reselling public information.”

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“He could legally be selling is [sic] information for $1. The program, however, provides free publically assimilated information. That’s how I would fight it in court at least.”

“Yay, misinformation. Might want to tell all the people who sell access to court records, sex offender searches, etc. Idiot.” “I just hacked into the App store approval system. here’s what I found (pseudocode): flip coin( ) if (heads) approve app else reject app wait 1 week if (pressCoverage >=lotsOf) rejectMoreApps else if (pressCoverage >=tooMuch) fireboardMember else rejectAppAnyway” “Public data cannot be copyrighted. I do not know if some can charge for the data or not.” “They are not charging for the data as an intellectual property. They are charging for their work in compiling the data, i.e., compiling, recompiling, recompiling data into useful information.” “There is a legal issue here. On the one hand, it is government information and we should be able to access it. However, there’s also a law that you can’t sell it-which the developers were doing. Since there is a question as to whether the developer has the legal right to publish this information for profit, Apple pulled the application. Unfortunately, the question will have to be resolved by the courts.” “They aren’t selling the criminal information, they are selling an app that provides convenient access to it. This is no different than selling an RSS reader that reads the free feeds.” Opinion On The Sale Of This Information As one can see from the above selected comments, there is wide confusion and misinformation contained in them. Personal information about others has long been legally sold in California and the U.S. The stock and trade of private investigators, people search agencies, credit and background check companies, credit reporting agencies and many thousands of businesses is personal information, some of which is on their own customers, which they sell to other entities and agencies.

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Phone number records are routinely sold not just to sales agents, but also by telephone companies. E-mail addresses are sold and property ownership information is marketed. Street addresses and city maps are sold. Biographical books which contain the personal and often criminal information about convicted criminals are often sold in the millions.

I know of no law in California which states that criminal information made public by the State of California that is compiled into a database cannot be sold to the public for a profit. I shall continue to look for anything that would prohibit the sale of this public information for profit. What some of the commentators may be confused with are laws that have been passed in recent years that make it illegal for convicted criminals to profit from their crime by selling their stories. There has also been reported recently the widespread theft of public government records such as old and valuable maps from libraries that have later turned up for illegal sale at auctions. California also has statutes dealing with Invasion of Privacy and Defamation that some of the commentators may be confusing with this situation, but neither apply here. In California’s invasion of privacy statute, a plaintiff must prove that there was publicized private information concerning the plaintiff and that the private information was not of legitimate public concern. In the case of the information contained on the Megan’s Law website and in the ThinAir App, it is just the opposite. The information is not private and it has been held to be very much of a legitimate public concern. It can also be an invasion of privacy to appropriate someone’s name or likeness and use it for profit. That also is not involved in this situation. The names and likenesses of the Registered Sex Offenders are not being utilized to sell coffee mugs or T-shirts. The information is being utilized to protect the public against the sex offenders themselves. And under California’s privacy statutes, the fact that the public interest is served by usage of this information would far outweigh the privacy interests of these individuals. The courts have held in allowing this information to be distributed, the public interest in safety outweighs any such privacy rights these individuals would otherwise have had. California courts have held that it is the plaintiff’s burden to prove that a matter disclosed is not of legitimate concern to the public. California does recognize the common law tort of invasion of privacy by the public disclosure of embarrassing private facts, but the sex offender information is not private facts and the release of sex offender addresses has been authorized by the Penal Code statutes which created the framework for the Megan’s Law website. In the 2004 case of Fredenburg v. City of Fremont in the California Court of Appeal for the First Appellate District for example, the Appellate Court noted that when California enacted the Megan’s Law in 1996, the Legislature found that the public had a “compelling and necessary interest” in obtaining information about released sex offenders so they can “adequately protect themselves and their children from these persons.” Because of the “public’s interest in public safety,” the Legislature determined that released sex offenders “have a reduced expectation of privacy.” The court held in that case that even if the information disclosed the street address of a sex offender, it did not show a violation of his right to privacy, stating, “informational privacy rights are not absolute, and may bow to a legitimate state interest.” The court also stated that one does not have a right of privacy under the California Constitution in the general location of one’s residence. 8

In defamation law in California, there is required either an intrusion, a public disclosure of private facts, a placement of the aggrieved party in a false light, or an appropriation. None of those situations exist in the dissemination of public criminal information concerning Registered Sex Offenders. While an innocent person being placed in the false light of being a sex offender would

have good cause for filing a suit for defamation, the California Megan’s Law website information reportedly contains information only about convicted sex offenders. It should be noted, however, that the California Department of Justice states that it makes no representation that the information on their site is complete or accurate and that neither the Department of Justice nor the State of California shall be held responsible for any errors or omissions on their web site or produced by secondary dissemination of their information. Because of the risk of Defamation or Invasion of Privacy of a person, I recommend that ThinAir provide in its disclaimer that ThinAir does not permit illegal or unauthorized uses of its App, including the redistributing of information displayed in any manner in which fraudulent or false information is added to the information which portrays innocent persons in a false light, or invades the privacy of any individual or in any other manner serves to cause others harm or damage of any kind. Some of the commentators are correct in their assessment of the situation when they note that ThinAir is not really selling the information. ThinAir is selling its Application which combines the data from all 50 states and allows a user of the App to learn whether he or she or their children live, work, play or go to school near Registered Sex Offenders in their state or any other location in the U.S. that they visit. The commentators are also right that ThinAir cannot claim a copyright in the information itself, and it has long been argued that the government which uses public tax dollars to compile such information does not have a copyright in it either. The argument is that by using public tax dollars, the government information is really owned by the public. However, what can be copyrighted is ThinAir’s compilation of the information into a new database and it’s reorganization into a usable format for persons who purchase the Application. An entity that compiles a database such as ThinAir may or may not be granted a copyright in the selection, coordination and arrangement of that database. While ThinAir would not own the facts contained in the database, ThinAir might have a copyright in the way the information is selected, correlated, and arranged for purposes of storage, accumulation, retrieval and display. That coordination and ThinAir’s contribution, however, must be original for there to be a copyright in the work. The name of the Application can be trademarked and if the Application has a novel way in which the information is combined, utilized and displayed, the Application can possibly also be patented, if it has not already been so. Since the information contained on the App is constantly changing, it probably would not be worth applying for a copyright. As to whether California prohibits selling non-confidential criminal information or criminal records in California, I have so far been unable to determine if there is any such provision. While one might expect there to be a prohibition against selling confidential criminal information, such as 9

FBI records, where the records have already been made public, I suspect that it is unlikely there is any such prohibition. I have found that courts in other states, and possibly in California routinely sell their criminal records to background checking companies. On the other hand I have found that many of the

websites offering background checks offer free background checks for criminal information, while other background checking entities charge for their service to search criminal records. A New York Times Article dated October 17, 2006 states that criminal records are routinely digitized and sold in bulk to the private sector. Some databases, they reported, now contain more than 100 million criminal records. A website for a company performing criminal and employment background checks in California for a fee, however, states that there is no single complete criminal record database for the State of California. The California Department of Corrections database only shows those criminals who have been incarcerated. Private databases only are, according to the site, a collection of only 20 of the county courts in California. Civil Code Section 1786, which is extensive, governs Consumer Reporting Agencies and the restrictions placed on these agencies in California in performing background and criminal checks are considerable. However, they would not seem to apply to ThinAir since ThinAir is not a Consumer Reporting Agency. These regulations need to be reviewed to be certain that they do not apply to other entities as well. The fact that there are severe restrictions on Consumer Reporting Agencies in California, it is recommended that ThinAir’s disclaimer state, among other things, that the user acknowledge that the App does not provide them with a consumer report and that the user certifies that they will not use the information from the App for any purpose covered under either the Fair Credit Reporting Act (15 U.S.C. Sections 1681, et. seq.) or the California Investigative Consumer Reporting Agencies Act (California Civil Code Section 1786). The bottom line would appear to be that if a California law enforcement entity allows ThinAir to distribute the information in the manner and scope of its Application and the law enforcement entity states that it may do so with the knowledge that ThinAir charges for its application, this might very well serve as an additional layer of protection to claims that ThinAir cannot sell the information and provide Apple with further justification for restoring the App to their App store. Copyright Law There is widespread confusion as to what is in the public domain and what is not. Following the Copyright Act of 1976, a work no longer went automatically into the public domain if the writer or developer failed to publish it with a copyright notice. Because of extended copyright protection, unless the work is extremely old, or the creator has disavowed any copyright ownership in a work, one should assume that a work is protected by copyright.

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A more unique issue that many are not aware of is that copyright protection is not available for any work of the United States government, although the U.S. government can hold copyrights in works given to it. The postal service is an exception to that rule and there are some other exceptions. Under the theory that works created by public tax dollars should be owned by the public

rather than the government and thus be in the public domain, California databases may also not be protected by copyright. However, states have different rules than the federal government and it would take some additional research to determine if the California Megan’s Law website database is protected by copyright. The issue is not of importance though in this instance. If a law enforcement entity authorizes ThinAir to distribute the information on its App, even if there is a copyright in the database as it exists at that point, ThinAir is in effect being granted permission to publish the work without fee to the State of California. And while even the United States government does not get a copyright in most things they create, they can still charge for use of its data for access to their computer systems. So too could the State of California or any other state so ThinAir should seek to ensure that its access and distribution of State information on its Application will be without charge by the State of California. After you have reviewed the foregoing, please let me know if you would like any additional information about any of the areas discussed in this letter. In the meantime I will further research some of the areas which have proved the most difficult to find a clear and concise answer. Very truly yours,

R. Sebastian Gibson RSG:rm

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