Megan's Law: Technology, Enforcement, and Privacy Rights

Introduction

Among the shared duties placed upon law enforcement personnel, crime prevention groups, public safety officials, and community members, few are more critical than the protection of children from harm. It is incumbent upon us to ensure that the laws and resources available to us are formulated to guarantee guardianship for those who cannot guard themselves. As our technological capabilities improve, so too do our abilities to create and enforce legal conditions that can better keep children safe from serial abusers, sexual predators, and repeat offenders. The twin imperatives to strengthen laws aimed at protecting children from potential or known sex offenders and to improve the technology used to do so are at the center of this investigation into Megan's Law. The legislative initiative forged in 1996 is both a source of gratitude for parents, communities, and law enforcement officials and a source of controversy for civil libertarians and defenders of privacy rights.

While its advocates perceive Megan's Law as a critical law enforcement tool that can protect communities, families, and children from the dangers of sexual predators, its critics argue that the law violates constitutional privacy rights and prevents previously convicted sex offenders from achieving rehabilitation or effectively reentering society. As the discussion and annotated bibliography hereafter will demonstrate, the role played by improved technology is only intensifying this debate. The expansion of web usage in information dispersal and law enforcement has given us ever-greater access to permanent databases, making it easier for concerned citizens to learn about convicted sex offenders both locally and nationwide. Simultaneously, it has become ever more difficult for convicted and registered sex offenders to achieve personal privacy or long-term psychological stability. This is the impasse that drives the research conducted hereafter.

Relevant Definitions

Before proceeding to investigate the legal and technological implications of the policy, it is necessary to offer several relevant definitions as they are derived from the terminology of Megan's Law.

Klaas (2012) reports that on May 17, 1996, two years after the brutal rape and murder of seven-year-old Megan Kanka by a previously convicted sex offender, President Clinton signed Megan's Law into action. This law requires all states to create Sex Offender Registration and Community Notification resources so that all convicted sex offenders would thenceforth be identified and known to their communities following release. Based on the premise that sex offenders pose a particular risk of recidivism following release, Megan's Law presumes that the right of communities, families, and children to be informed of and protected from this possibility overshadows questions of privacy rights for past offenders.

Megan's Law is predicated on the requirement that all convicted sex offenders be placed on local, state, and national registries that are consequently available to the general public. According to Klaas, the registration requirement is drawn from the 1994 Jacob Wetterling Act, which required that any such information be made available at the state level. This information is made available to ensure that communities know that a potentially dangerous sex offender may be working or living nearby. It also comprises an important resource for hiring organizations, especially those in daycare, education, or other contexts that might place them in regular contact with children. In this regard, the mandate of Sex Offender Registration is considered a critical avenue for preventing incidents such as that which led to Megan Kanka's death in 1994.

Klaas indicates that states are given independent discretion to determine how to disclose information regarding registered sex offenders. However, all states are required to take active steps to ensure effective notification and information dispersal, especially in communities where registered sex offenders reside. According to Klaas, it is incumbent upon state law enforcement bodies to promote notification that assists law enforcement in investigations, establishes legal grounds to hold known offenders, deters sex offenders from committing new offenses, and offers citizens information they can use to protect children from victimization. A useful example of the notification system — particularly as it correlates to the use of improving technologies — is the Pennsylvania State Police website, discussed at greater length in the Web References section of this paper.

Importance to the Criminal Justice Problem

Directly pertinent to this discussion is the need to consider the implications of the role played by technology in recasting privacy questions in the modern era. As DeVries (2003) points out, it is no longer sufficient to regard the terms of the Fourth Amendment — guaranteeing privacy and protection against unreasonable search and seizure — as adequately addressing issues of privacy in a digital age. From the perspective of the DeVries article, the Fourth Amendment was devised long before the implications of digitization and web interconnectivity could be considered. Today, DeVries points out, we continue to "conceive personal privacy in physical terms, but in the digital world, many of one's most private things, such as medical records, may be stored in a database far from one's person or house. How can one tell if a search of such a database is unreasonable?" (DeVries, 2003).

This is a central problem in the debate over Megan's Law, which often places constitutional conceptions of privacy at odds with the availability of resources that may be used to keep communities and children safer. To the present date, the latter imperative has prevailed over the former, with technological advancement playing a key role in stimulating even further legal strengthening of Megan's Law. This is evidenced by the expanded role of government-maintained informational websites on a national scope one decade after the initial passage of Megan's Law. According to Klaas, "on July 27, 2006, President Bush signed the Adam Walsh Child Protection and Safety Act. One important component requires the U.S. Justice Department to create a publicly accessible, internet-based national sex offender database that allows users to specify a search radius across state lines."

When considering such rapidly advancing technology, it is necessary to recognize that the central legal problem at the heart of this discussion is the poorly defined and even more poorly understood concept of privacy. According to Smith (2004), privacy rights are inherently hazily defined in constitutional law, and judicial inconsistency has done little to correct this problem. Smith argues that "since recognizing a right to privacy in Griswold v. Connecticut, the Supreme Court's approach to privacy has been, at best, confused and disjointed, and has plainly lacked a legal theory of privacy capable of general application. The common law in the United States is no less precise, treating privacy as a bundle of amorphous rights — physical (a property right in one's home and possessions), decisional (control over personal choices), informational (control over information about oneself), and formational (construction of the self) — rather than a single clearly defined principle" (p. 275).

This problematic variance of perspectives and defining standards has promoted great uncertainty among legal scholars over the limits of legal power, both as they have been expanded by the terms of Megan's Law and as they have been affected by the continued enhancement of information technology capabilities.

Conclusion

One of the recurrent points of consideration in the present research is the understanding that Megan's Law has been difficult to enforce. Likewise, its effectiveness in preventing criminal recidivism, in keeping communities safe, and in arming parents with the information needed to protect their children have all been subjected to scrutiny. Questions of privacy rights have also clouded discussions over the value of Megan's Law as a crime-fighting resource. However, these arguments have done nothing to reverse the role of Megan's Law as the national policy concerning the treatment of post-release sex offenders. As the discussion ultimately demonstrates, there are two alternate paths of treatment in the legal community for Megan's Law: those aimed at challenging its constitutionality and those working to advance its effectiveness. The latter have taken a lead role in developing new technologies for doing so.

A recommendation emergent from the Wagner (2008) text is particularly useful as we draw this discussion to its conclusion. The Wagner article describes the opportunities increasingly available for improved enforcement of Megan's Law compliance by way of GPS technologies. Already in use in some state contexts, Wagner calls for an expansion of the use of such tracking systems, advocating that Pennsylvania "should revise current law as necessary to require GPS monitoring for sex offenders caught after failing to register with state or local police as required, and also for sexually violent predators whose victims are children" (p. 2).

This assertion underscores the basic conclusion reached by the present research endeavor. Namely, in spite of all constitutional protestation seeking to revise Megan's Law as it concerns privacy rights, there is both broad public support for its continued existence and for the improvement of its enforcement. Moreover, because Megan's Law is to this juncture the defining legal standard by which questions over sex offender registration and community notification are understood, it is the responsibility of public officeholders, law enforcement agencies, and community members to take any steps necessary and appropriate under the law to ensure its proper and effective implementation.

This points to the role played by such technologies as those described by Wagner, as well as those referenced throughout this discussion. As the various sources consulted in this literature review demonstrate, while there is much disagreement on the effectiveness of Megan's Law, there is little disagreement over the practical role that improved information technologies can play in helping to improve its implementation. With respect to the demands for monitoring, tracking, and keeping in compliance all registered sex offenders; the legal requirement to ensure that effective notification is made available to communities; and the practical imperatives to create a national network of information aimed at strengthening the protective capabilities of Megan's Law — the technological advances that have occurred since the 1996 inception of the policy have helped to improve its potential for effectiveness. It will be up to communities, states, and collective society to seize this potential while simultaneously working to achieve consistency in the area of legally defining privacy rights.