IN THE UNITED STATES DISTRICT COURT by jennyyingdi

VIEWS: 2 PAGES: 13

									                         IN THE UNITED STATES DISTRICT COURT
                          FOR THE SOUTHERN DISTRICT OF OHIO
                                   DAYTON DIVISION

AMERICAN ONLINE DATING                        :
ASSOCIATION,
2312 Far Hills Avenue                         :
Box 132
Dayton, Ohio 45419,                           :


       and                                    :


MARK STRICKLER,                       :
c/o Sirkin Pinales & Schwartz LLP
105 West Fourth Street, Suite 920             :
Cincinnati, Ohio 45202,
                                              :
       Plaintiffs,
                                              :
V.                                                           COMPLAINT FOR
                                              :              DECLARATORY AND
ALBERTO GONZALES,                                            INJUNCTIVE RELIEF
United States Attorney General,               :
In His Official Capacity Only,
10th & Constitution Avenue N.W.               :
Washington, D.C. 20530,
                                              :
       Defendant.


       Come now Plaintiffs American Online Dating Association and Mark Strickler, who for their

complaint against Defendant Alberto Gonzales, United States Attorney General, state as follows:

                                PRELIMINARY STATEMENT

       1.      This is an action brought by the American Online Dating Association (“AODA”) and

Mark Strickler to permanently enjoin enforcement of certain provisions of the International Marriage
Brokers Regulation Act of 2005 (“IMBRA”) that require websites and other enterprises functioning

as international match-making services to gather and maintain private information about domestic

clients, and then to disclose that information to its international patrons prior to permitting basic

communication between the parties.1 AODA brings this action on its own behalf, on behalf of its

individual and corporate members, and on behalf of the customers, including Plaintiff Strickler,

those members serve.

       2.      AODA and its members are adamantly opposed to domestic violence in any form.

The organization is particularly sensitive to the relatively few, although highly publicized, accounts

of immigrant woman being physically abused by their American husbands. However, AODA

believes that the disclosures required by the IMBRA violate its members’ and clients’ rights to free

expression, free association, equal protection, and privacy; do not constitute the least restrictive

means of achieving the government’s goal of eradicating domestic violence against women who

immigrate to the United States for the purpose of marriage; and impose an unreasonable burden on

smaller match-making websites that have no influence on the frequency or severity of domestic

abuse. For these reasons, AODA seeks to invalidate the disclosure provisions of the IMBRA and to

permanently enjoin their enforcement.

                                         JURISDICTION

       3.      This is an action challenging the constitutionality of an Act of Congress under the

First and Fifth Amendments to the United States Constitution. The case therefore presents a federal

question.


       1
        A copy of the International Marriage Broker Regulation Act of 2005 is attached as Exhibit A
and incorporated in its entirety by reference.


                                                  2
       4.      Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331.

       5.      Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b) and (e).



                                            PARTIES

       6.      Plaintiff American Online Dating Association is an Ohio corporation operating

primarily in cyberspace and having its principal place of business in Montgomery County, Ohio.

AODA constitutes an organization of numerous websites and business entities that function as

international marriage brokers, as that term is defined by § 833(e)(4) of the IMBRA. The

organization’s members do business in every state and have a substantial number of clients in Ohio.

       7.      Mark Strickler is a resident of Montgomery County, Ohio and a client of an

international match-making website belonging to AODA. He is a United States citizen and is

therefore required by the IMBRA to disclose private information about himself before exercising his

protected constitutional right to communicate and associate with international women via the match-

making service.

       8.      Defendant Alberto Gonzales is the appointed Attorney General for the United States.

He is sued in his official capacity only.

                                 STATEMENT OF THE FACTS

       9.      The American Online Dating Association is a trade association of websites that

function as international marriage brokers by pairing American clients, predominantly although not

exclusively male, with international singles. Some of these relationships are merely casual,

consisting of e-mail conversations and occasional telephone calls.        However, some of the

relationships do progress and become more intimate, resulting in marriage. These international


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marriages, only a fraction of which are arranged by online dating services, account for less than 6

percent of all new citizens admitted to the United States and constitute a meager .021 percent of all

marriages undertaken by American men annually.

       10.     The services provided by AODA’s members range from merely facilitating electronic

or telephonic communication between clients in the United States and foreign singles to assisting

those clients who chose to marry with travel and immigration plans. AODA’s members are both

small and large, with client bases from as few as 150 American customers to as many as 60,000 men

interested in meeting international women.

       11.     AODA’s members facilitate contact between their domestic and international clients

in a number of ways. Most offer free listings for their international clients, where the woman can

post a photograph, her first name, and other basic details about herself, including the type of man she

is looking to meet. Men can then peruse the basic listings free of charge, but must purchase either a

subscription plan or individual addresses in order to contact the website’s foreign clients. Some of

AODA’s members offer additional communication services, such as bulletin boards or chat rooms,

that allow its male and female clients to converse in a free and open manner. Still others schedule

group tours to specified countries, where its male and female customers can interact face-to-face and

learn about each other’s cultures, or assist with flower and gift delivery in certain foreign locales.

       12.     The AODA and its members are neither non-profit nor religious in nature, a fact of

critical importance under the IMBRA. AODA’s members charge and collect reasonable fees for the

services they provide and do not generally limit their American clientele to a specific ethnic group.

In addition, AODA’s members primarily focus on pairing American men with international clients,




                                                  4
although a small amount of their business may be devoted to matching foreign men with foreign

women.



                           The IMBRA and Its Disclosure Provisions

       13.     On December 17, 2005, Congress enacted the International Marriage Broker

Regulation Act of 2005 without hearings or debate. The IMBRA follows on the heels of several

other important pieces of legislation designed to curb domestic violence against women who

immigrate to the United States to marry American citizens. These previous regulations, which

include the Violence Against Women Act of 1996, each lessened the burdens required for battered

immigrant fiancees and wives to legally immigrate to the United States. Unlike these statutes,

however, the IMBRA is not primarily focused on the immigration process, but instead seeks to

regulate lawful, premarital communication between American citizens and international women. In

this regard, the IMBRA imposes significant burdens on match-making websites to gather and

maintain private information about their American clients and to disclose that information to their

international prospects, even when the foreign patron does not request or waives the right to be told

about the man’s background.

       14.     The IMBRA imposes three specific information-gathering duties on international

marriage brokers. First, § 833(d)(2)(A)(i) requires that, before disclosing an international client’s

contact information to an American customer, the international marriage broker must first conduct a

search of the National Sex Offender Public Registry to determine whether the American client has

been convicted of a sex crime. Second, pursuant to § 833(d)(2)(A)(ii), the broker must also collect

certain private, and potentially embarrassing, background information from the American client.


                                                 5
Then, under § 833(d)(3)(A)(iii) and (iv), the website must secure from each individual international

client a signed written consent pertaining to each specific American client in question, confirming

that the international client reviewed the American client’s background information and agreeing that

the international client’s personal contact information may be released, before the American client

can initiate any presumptively protected communication.

       15.     The information that the international marriage broker is required to collect under §

833(d)(2)(A)(ii) is extensive. It includes:

               1)      any restraining order, temporary or permanent, that has ever been issued
                       against the American client, regardless of whether the order was issued ex
                       parte or was obtained by someone other than a family member (§
                       833(d)(2)(B)(i));

               2)      any arrest or conviction for a number of violent criminal offenses, including
                       those not related to sex or domestic violence (§ 833(d)(2)(B)(ii));

               3)      any arrest or conviction for enumerated prostitution offenses (§
                       833(d)(2)(B)(iii));

               4)      any arrest or conviction for crimes involving alcohol or controlled
                       substances, which would include such seemingly innocuous and frequent
                       occurrences as underage drinking, open container violations, and the like (§
                       833(d)(2)(B)(iv));

               5)      the marital history of the American client, including the number of marriages,
                       the manner in which any previous marriages were terminated, and the client’s
                       history, if any, of sponsoring immigrants for citizenship through marriage (§
                       833(d)(2)(B)(v));

               6)      whether the American client has any children and, if so, their ages (§
                       833(d)(2)(B)(vi); and

               7)      any state in which the client has resided since he was 18 years of age (§
                       833(d)(2)(B)(vii).




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           16.   With the exception of possibly the disclosures required by § 833(d)(2)(B)(i) and

portions of § 833(d)(2)(B)(ii), the information required to be disclosed under the IMBRA does not

detail a history of domestic violence and therefore bears no rational relationship to whether the

American client is likely to subject any potential immigrant spouse to domestic abuse should they

elect to marry. In addition, there exists no legitimate governmental interest in mandating that these

disclosures be made as a precursor to even innocent, basic communication by e-mail or telephone, as

opposed to at the time of the immigration interview. Furthermore, the mandatory disclosures for any

arrests for certain crimes, regardless of the how old the arrest was, and regardless of whether the

arrest resulted in a conviction or dismissal, is plainly overbroad and chilling of free speech.

           17.   Despite the lack of apparent nexus between the disclosure provision and the

propensity of an American client to physically abuse his family members, an international marriage

broker who fails to elect and disclose the information required to be gathered under § 833(d)(2)(A)

faces a fine of $5,000 to $25,000 and imprisonment of up to five years for each violation of the

statute.

                               The IMBRA’s Exemption Provisions

           18.   Remarkably, the IMBRA exempts certain entities who function as international

marriage brokers from complying with its disclosure provisions.

           19.   Because the definition of an “international marriage broker” contained in §

833(e)(4)(A) includes only websites and other entities that charge fees for their services, the IMBRA

initially excludes not-for-profit marriage brokers from its coverage.

           20.   The IMBRA goes on to exempt cultural and religious websites that operate on a non-

profit basis and are otherwise in compliance with the laws and regulations of the countries in which


                                                  7
they operate. Also exempted from compliance are more mainstream match-making websites, like

match.com or eharmony.com, whose principal business purposes are not to provide international

dating services and who charge similar fees to clients regardless of their nationality.

       21.     There exists no basis to reasonably believe that relationships brokered through

nonprofit, cultural, religious, or mainstream domestic dating services result in fewer instances of

domestic violence than those fostered by for-profit, internationally focused websites. Thus, no

compelling, substantial, or legitimate interest underscores the exemptions found in § 833(e)(4)(A)

and (B).

                                   The Impact of the IMBRA

       22.     The IMBRA was passed by the Senate on December 16, 2005 and by the House of

Representatives on December 17, 2005. It was signed into law by the President on January 5, 2006.

Pursuant to § 833(d)(7)(A), the law takes effect 60 days after its enactment. Thus, the disclosure

provisions challenged by AODA became effective on March 6, 2006.

       23.     Since that date, AODA’s members have suffered various negative consequences as a

result of the IMBRA’s regulations. Nearly all of AODA’s member websites have ceased sales to

domestic customers altogether, drastically reducing revenues and precluding their American clients

from engaging in communication with interested international patrons. Others have stopped

accepting listings from foreign female clients as well, thus limiting their opportunities to interact

with American men. The disclosure provisions have had a particularly harsh impact on the larger

websites, who have no feasible, cost-efficient, and timely mechanism by which to collect and store

the required information prior to each transaction. If the IMBRA is enjoined, each of AODA’s

members intend to return to normal business operations.


                                                  8
       24.        The IMBRA has also had a negative impact upon the clients of AODA’s member

websites. For example, many of the American clients who elect to make full disclosures still have

their communication with international women impeded, in large part because many of those women

do not have frequent access to computers and do not respond to the disclosures. And simply the act

of making the disclosures itself violates the clients’ rights of privacy. Since the IMBRA took effect,

client Mark Strickler has had to disclose private information about himself, including the fact that he

has previously been married, before being able to exercise his right to communicate with

international women. This has impeded Strickler’s ability to form relationships and to disclose the

private details of his life in a manner and timing of his own choosing.

       25.        The necessary, but unwanted, alterations to the websites of AODA’s members have

drastically reduced revenues, thereby categorically endangering the existence of international

marriage broker websites. If the IMBRA is not enjoined, many of the smaller websites that belong to

AODA that rely on a United States clientele to exist will fail, while some with sales to foreigners --

usually a very small portion of overall sales -- may barely survive. The protected speech, privacy,

and association rights of AODA’s members and its American clients therefore hangs in the balance.

                                   STATEMENT OF THE CASE

                                             Claim One:
                            Violation of Plaintiff’s Right to Free Speech

       26.        Plaintiffs incorporate each of the foregoing paragraphs by reference as if fully

rewritten here.

       27.        Sections 833(d)(2)(A) and (B) of the International Marriage Broker Regulation Act of

2005 violate the First Amendment to the United States Constitution in the following respects:



                                                   9
                  1)     the challenged sections of the IMBRA impose a presumptively
                         unconstitutional prior restraint upon pure protected expression between
                         Plaintiff, its members, and their clients without adequate procedural
                         safeguards;

                  2)     the challenged sections of the IMBRA are not narrowly tailored to serve a
                         substantial governmental interest and do not constitute the least restrictive
                         means of achieving a compelling governmental interest;

                  3)     the challenged sections of the IMBRA do not leave open ample alternative
                         avenues of communication;

                  4)     the challenged sections of the IMBRA impose overbroad restrictions on free
                         expression, as well as being both under- and over-inclusive; and

                  5)     the challenged sections of the IMBRA create an impermissible chilling effect
                         on free expression by imposing substantial burdens on those desiring to
                         engage in protected communication.

        28.       As such, the IMBRA threatens to impose serious burdens on the free speech rights of

Plaintiff American Online Dating Association, its members, and their clients, including Plaintiff

Strickler, if not enjoined.

                                             Claim Two:
                          Violation of Plaintiff’s Right to Equal Protection

        29.       Plaintiffs incorporate each of the foregoing paragraphs by reference as if fully

rewritten here.

        30.       Sections 833(e)(4)(A) and (B) of the International Marriage Broker Regulation Act of

2005 create the following classes of match-making services: 1) non-profit and profit; 2)

cultural/religious and secular; and 3) domestic-focused and international-focused.

        31.       The IMBRA then singles out only those businesses and entities that are internationally

focused, secular, and for-profit for disparate treatment from those websites that are cultural or




                                                   10
religious, non-profit, and focus on American clientele. This disparate treatment is not rationally

related to any legitimate governmental interest.

       32.        As such, the IMBRA violates Plaintiffs’ rights to equal protection of the law and due

process.

                                            Claim Three:
                               Violation of Plaintiff’s Right of Privacy

       33.        Plaintiffs incorporate each of the foregoing paragraphs by reference as if fully

rewritten here.

       34.        Section 833(d)(2) of the International Marriage Broker Regulation Act of 2005

impinges upon the privacy rights of Plaintiff American Online Dating Association, its members, and

their clients, including Plaintiff Strickler, by regulating, and at times preventing, the most basic

communication between two individuals and by mandating disclosure of private information as a

condition precedent to engaging in free communication between consenting adults.

       35.        In this regard, the IMBRA violates the guarantee of substantive due process contained

in the Fifth Amendment to the United States Constitution by placing unreasonable and unnecessary

restrictions upon intimate human relationships.

                                             Claim Four:
                             Violation of Plaintiff’s Right of Association

       36.        Plaintiffs incorporate each of the foregoing paragraphs by reference as if fully

rewritten here.

       37.        Section 833(d)(2) of the International Marriage Broker Regulation Act of 2005

prevents individuals living in the United States from freely associating with foreign nationals under

certain circumstances unless and until the American citizen agrees to disclose certain private


                                                   11
information about himself. The IMBRA therefore prohibits individuals from exercising their

protected right to free association.

        38.      The IMBRA therefore violates the right of Plaintiff American Online Dating

Association, its members, and their clients, including Plaintiff Strickler, to free association

guaranteed by the First Amendment to the United States Constitution.

                                       PRAYER FOR RELIEF

        WHEREFORE, Plaintiffs American Online Dating Association and Mark Strickler demand

the following relief from Defendant Alberto Gonzales:

        1.       A declaration that §§ 833(d)(2) and (e)(4) of the International Marriage Brokers

Regulation Act (“IMBRA”) are unconstitutional under the First and Fifth Amendments;

        2.       Preliminary and permanent injunctions prohibiting the enforcement of the IMBRA

against Plaintiff American Online Dating Association, its members, and their clients, including

Plaintiff Strickler;

        3.       An award of reasonable attorney fees and costs pursuant to the Equal Access to

Justice Act, 28 U.S.C. § 2412; and

        4.       Any such other award in law or equity that the Court deems appropriate under the

circumstances.




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       Respectfully submitted,



       JENNIFER M. KINSLEY (Ohio Bar No. 0071629)
       CANDACE C. CROUSE (Ohio Bar No. 0072405)
       Sirkin Pinales & Schwartz LLP
       105 West Fourth Street, Suite 920
       Cincinnati, Ohio 45202
       Telephone: (513) 721-4876
       Telecopier: (513) 721-0876

       Counsel for Plaintiffs American Online Dating
Association and Mark Strickler




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