Do Sexual Predators Have the Right to Privacy?

Confidentiality Provisions for Registered Sex Offenders in California and Massachusetts

Copyright Megan Burns, 1999

Introduction

In 1947, the state of California established America's first sex offender registry to help monitor the whereabouts of dangerous sex offenders living within its borders [1].  In the 52 years since, the other forty-nine states have also passed legislation that requires released sex offenders to register with local law enforcement in the area in which they establish residence [2].  Until 1996, the information contained in California's registry (and others) was available only to law enforcement agencies.  The concern was that the public release of such information might violate the offender's right to privacy and to live without fear of discrimination.  According to Dan Lungren, former Attorney General of the state of California,  "Until now, sex offenders have been just about the most protected class of convicted criminals on the streets" [3]  Lungren and other supporters of publicly available registry information claim that by releasing that information, we better equip people to protect themselves and their children from sexual predators.

The issue, like any that pits personal privacy against public safety, is far from simple. Sixty-two percent of states have chosen to err on the side of caution, including no provisions to protect the privacy rights of convicted sex offenders.  In the 38% of states that do have such provisions, the degree of protection and the mechanisms used to ensure it vary greatly. [4]  This essay looks at the confidentiality provisions developed by two states - California and Massachusetts - and compares them along three dimensions - the information collected, the rules governing access to that information, and the punishments imposed upon those who violate the privacy of an offender.

Information Collected in Sex Offender Registries

In order to have a meaningful discussion about confidentiality rights, it is important to understand what information is being considered for publication and what the consequences would be if that information were made publicly available.  In their respective registries, California and Massachusetts track the information shown in Table 1.
 
Item CA MA Item CA MA
Name
X
X
 Photo
X
X
Aliases
X
X
 Fingerprints
X
X
Date of Birth
 
X
 Description of Offenses
X
X
Place of Birth
 
X
 Location of Offenses
X
X
Sex
 
X
 Date of Conviction
X
X
Race
 
X
 Palm Print
X
 
Height
 
X
 Driver's License Number
X
 
Weight
 
X
 Vehicle License Plate
X
 
Eye Color
 
X
 Vehicle Description 
X
 
Hair color
 
X
 Criminal History
X
X
SSN
 
X
 Identifying information
X
 
Home Address 
 
X
 Blood
X
 
Work Address
X
 
 Saliva
X
 
Occupation
X
 
 DNA
X
 
Table 1: Information Gathered in Sex Offender Registries [4] 
 
From this table, one can see a difference in the type of information obtained by these two states.  Massachusetts, it seems, tracks enough information to identify the offender, determine his proximity to a given place, and determine the danger he poses based on his previous record.  California's information, on the other hand, appears to go beyond simple identification.  With the data in California's registry one can do all the things Massachusetts can do, but can also follow the offender's movements by tracking his vehicle and test him against evidence in other crimes without his permission. (Normally a warrant or the person's permission is required to get a blood or DNA sample.)  Both of these acts, whether performed by law enforcement agencies or individual citizens, are more severe intrusions into an offender's privacy than simple identification.

The federal Freedom of Information Act,  designed to help citizens arm themselves with information, encourages government agencies to strike a balance between public safety concerns and the right to personal privacy in a section called exemption 7(c). Here the act specifically discusses the harm that can come from the release of criminal history information, and the special confidentiality provisions that should be made to protect offenders from that harm. Knowing this, one might expect California's confidentiality provisions to be stricter than Massachusetts' in order to balance the increased threat posed by the personal nature of the information it gathers.  The following discussion of the laws of both states will show that this is not, in fact, true, and that California's laws put its offenders at an equal, if not greater risk of invasion of privacy attacks.

Access to Sex Offender Registry Information

One of the simplest ways to ensure a person's privacy is to limit the dissemination of his or her personal information.   Sex offender registry programs vary in how and to whom they provide information, and thus vary in the level of confidentiality they afford.  There are several questions that can be asked to classify a particular access scheme, including the following. The answers to these and other questions determine the degree to which an offender's personal privacy is protected by a particular access scheme.  In Alaska, for example, the sex offender registry is online, which means any person can get information from the registry with no restrictions.  There is obviously no expectation of confidentiality in that arrangement.

Both California and Massachusetts, unlike Alaska, exercise some control over the information in their sex offender registries.  We now look at the controls they offer, and the implications of those controls on privacy, by answering the questions listed above.

Is information broadcast or must it be requested?

California and Massachusetts use access mechanisms that are primarily request driven.  In California, the public can access registry information about a particular person through a 900 number.  They can also ask to scan the registry of serious offenders on a CD-ROM, which is available at local law enforcement agencies.

Massachusetts citizens access registry information by making requests either of the state Criminal History Systems Board (CHSB) or in person at local law enforcement offices.  They can request confirmation of a person's presence in the registry, a statement of the offenders living or working within a one mile radius of a particular address, on a given street, or in a given neighborhood.

Although both states use a mostly request driven access scheme, they do use broadcast notification to alert the public to the presence of more dangerous offenders.  In Massachusetts, law enforcement is required to notify community organizations and neighbors whenever moderate or high risk offenders enter the area.  The risk of an offender is determined according to such factors as severity of crimes and risk of recidivism, and is expressed in terms of three levels.  These levels form a three tiered classification scheme with the following guidelines:

In California, community notification is given only when dealing with serious offenders, and is usually restricted to schools and other organizations dealing with children. [1] 
 
Is all the data provided or is some subset of it withheld?

Along this dimension, the laws of Massachusetts and California are fairly similar.  In both states, only a subset of registry information is provided to the public.  California will provide confirmation of a person's listing in the registry on the 900 number, and lists more detailed information about offenders on the "Megan's Law CD-ROM".

In Massachusetts, the level of detail provided also depends upon the medium in which the request is made.  Requests to the Criminal History Systems Board receive information about whether or not  person is in the registry and, if he is, the offense(s) and date(s) of conviction.  For walk-in requests at local law enforcement agencies, more information is provided.  There the offender's name, offense(s), date(s) of conviction, personal characteristics, and photograph are released.  In those cases where a request was made relative to a specific geographic area, the home and work addresses of the offender may also be released.

Does a requester need to provide personal information about him or herself and a reason for the request?

Both Massachusetts and California force requesters to provide some proof of identification, and to provide justification for their requests, in exchange for more information about the offenders in question.  Limited information is provided over California's 900 number and Massachusetts' CHSB because these mechanisms do not force requesters to produce any information about themselves.  In order for photographs and addresses to be obtained, proof of identification and a valid reason must be given on a form that must be notarized before being submitted for processing [6]. (It is also interesting to note that Massachusetts laws provide explicit confidentiality protection for the personal identification information provided by people requesting information from the sex offender registry.)

Implications of Access Restrictions on Confidentiality

The access rules described in the previous section have two major implications in terms of the confidentiality afforded to convicted sex offenders.  First, the use of a request driven access scheme is thought to increase the degree of privacy an offender will experience.  Although no empirical evidence is currently available, it is expected that fewer people will make the effort to request information than would see it if it were broadcast publicly. [2] As a result, the dissemination of personal information will be less widespread and so the risk of exposure to regsitry-related privacy invasions will likely decrease.  Also, by requiring requesters to provide personal information about themselves and their motivations, lawmakers hope to protect registrants from unwarranted invasions of privacy. Some states using this type of scheme, including California, even charge a fee for the release of registry information to deter people who might want to use it to violate the offender's privacy or harass him.

Second, both Massachusetts and California afford confidentiality privileges on the basis of the danger a particular offender poses, making the "punishment" (read  "loss of privacy")  fit the crime. The use of a classification scheme in Massachusetts to determine the need for broadcast notification is an attempt by legislators to be sensitive to the offender's right to confidentiality, as is California's restriction of both community notification and the CD-ROM to "serious" sex offenders. [1]

Punishment for Violation of An Offender's Privacy

 The final provision for confidentiality in most sex offender registry laws is punishment for violation of that confidentiality.   All citizens who access the registry in California are required to sign a statement saying that they understand the proper, intended uses for the information they are to receive.  Should they violate any of the rules contained in that statement or in California Assembly Bill 1562, they are subject to the following penalties:
  In Massachusetts, users of the sex offender registry are presented with the following warning message detailing the punishment for misuse of personal information:
 
                    Information contained in the sex offender report shall not be used to commit any
                   crimes against any sex offender or to engage in illegal discrimination or
                   harassment of an offender. Any person who uses information disclosed pursuant
                   to this act to commit a crime shall be punished by not more than two and one half
                   years in a House of Correction or by a fine of not more than one thousand dollars
                   ($1,000.00) or by both, such fine and imprisonment pursuant to Massachusetts
                   General Laws, Chapter 6, Section 178C.

                   In addition, any person who uses information disclosed pursuant to this act to
                   threaten to commit a crime may be punished by a fine of not more than one
                   hundred dollars ($100.00) or by imprisonment for not more than six months
                   pursuant to Massachusetts General Laws, Chapter 275, Section 4. [5]

As in California, both jail time and fines are imposed on individuals using information from the state sex offender registry in a manner other than that for which it was originally intended.

Conclusions

Based on the information presented in this comparison, it appears as though the confidentiality provisions given to registered sex offenders in California and Massachusetts are quite similar.  There are, however, a few key differences that tip the scales in favor of privacy for Massachusetts' offenders versus those in California.

First is the difference in information collected.  As was mentioned before, California records more potentially intrusive information about its sex offender than does Massachusetts.  Although the most sensitive information is not released to the public, it is accessible to law enforcement agencies, who are just as capable of invading the privacy of a citizen.   Mark Kappelhoff, Legislative Counsel for the ACLU, who have traditionally opposed sex offender registries because of the privacy risk they impose, said that "it's a problem when you put a very vague power in the hands of law enforcement officials." "The chances for abuse are great, and there appears to be no court oversight," [7].  

The second provision granting more privacy to Massachusetts registrants is the restriction of information based on the risk posed by the offender.  California does have a mechanism by which offenders are classified as "serious" or "high risk", but those classifications do not appear to limit the actions of law enforcement officials in broadcasting information.  No information found in this research indicated that the confinement of community notification to serious offenders was mandatory, leaving the door open for the unfair humiliation of a less serious offender.

Finally, it seems as though California's punishments for the misuse of information do not go as far to protect the rights of registered offenders before they have been violated.  In the California code, all punishments are for the misuse of information or commission of a crime against the offender's privacy. These penalties are, in fact, stricter than those in Massachusetts, but they happen after the fact.  Massachusetts laws allow for the punishment of an individual who even threatens to violate the confidentiality agreement imposed as part of access to registry information, potentially stopping that individual before any serious damage is done.

In closing, it is clear that the debate over confidentiality with respect to sex offender registries is far from over. We have seen some ways in which lawmakers have tried to protect the rights of released offenders and other ways that laws expose them to unusually high risk.  As these laws mature and some evidence is gathered about the effectiveness of sex offender registries, we can only hope that the best course of action will become clear.  Until then we are forced to wrestle with the issue in both our legislatures and our hearts, guided by the wisdom of those to whom the issue is most personal:

        "While the many new laws aimed at people like me are sometimes difficult to live with, as they result in constant
        surveillance, their benefits outweigh the inconvenience...  Sex offending is an addictive behavior.  It can't be
        cured, but it can be controlled if the addict never lets himself forget he is an addict.  The new law increasing
        public access to sex offenders' names have that effect." -- Jake Goldenflame, registered California sex offender
        (San Francisco Examiner -- August 18, 1997) [8]

References

[1] Sex Offender Information and How to Use It - Office of the Attorney General of California

[2] An Overview of Sex Offender Community Notification Practices: Policy Implications and Promising Approaches

[3] The First Year - Lifting the Shroud of Secrecy

[4] Klasskids  - Advocating Legislation to Protect our Children

[5] Massachusetts Sex Offender Registry

[6] Representative Cele Hahn - 8/2/97 - A Look at the Sex Offender Registry

[7] May 8, 1996: House Endorses Sex Offender Legislation

[8] What Citizens and Law Enforcement Have to Say About Megan's Law...
 


This paper was written by Megan Burns for Information Technology and Social Accountability, a class in the Heinz School of Management and Public Policy at Carnegie Mellon University.