Criminal Law

ThinAir iPhone App and Sex Offender Registry

Update

California legislators authorized a payment of $20 million to settle legal claims made by kidnap victim Jaycee Dugard and her family.

Dugard was kidnapped in 1991 when she was 11 years old. She was held captive by convicted rapist Phillip Garrido until she was found in 2009. Although state parole officers were supposed to have been supervising Garrido since 1991, they failed to discover that Dugard was held prisoner in Garrido’s back yard.

Dugard and her two daughters fathered by Garrido claimed the California Corrections Department was negligent in failing to properly supervise Garrido. To settle these claims, and head off an even bigger lawsuit, state lawmakers authorized $20 million to be paid out to the Dugards to provide them with counseling and education.

Original Article

A new iPhone application that tracks sex offenders has been causing a controversy. Offender Locator, created by ThinAir Wireless, uses the iPhone's GPS function to track the locations of registered sex offenders living in an area.

A sex offender is someone who has committed a sex crime. What comprises a sex crime is different in each state. In most states, offenses such as sexual abuse of children, downloading child pornography, rape and statutory rape are all sex crimes. However, in some states public urination, mooning, sexting and streaking may also be designated as a sex crime.

Megan's Law and Online Registry

Megan's Law, requires convicted sexual offenders in all 50 states to register when they move into a community so their location can be tracked and monitored. State police must make that information available to the public; and real estate agents have a duty to disclose the information.

The law is named after seven-year-old Megan Kanka who was kidnapped, raped and murdered by Jesse Timmendequas, a repeat violent sexual offender. Timmendequas had recently moved into the Kankas' neighborhood, where he lived with two other convicted sex offenders. The Kanka family didn't know they were living so close to sexual offenders.

The family demanded legislative action and circulated a petition that received more than 400,000 signatures. The law was passed quickly - 89 days. Megan's home state of New Jersey passed the first so-called "Megan's Law" in 1994 and federal laws followed.

The Violent Crime Control and Law Enforcement Act of 1994 orders community notification when a convicted sexual criminal is released or moves near their homes. The law has been updated several times since the original bill, and different states have different procedures for making the required disclosures.

Sex Offender Web Sites

Most sex offender information is made public through several Web sites. The National/State Sex Offender Public Web site, coordinated by the Department of Justice, allows citizens to search the latest information for the identity and location of known sex offenders. Other Web sites such as Family Watchdog provides users with the address, name and picture of registered sex offenders. The sad truth is that an estimated 23 states have lost track of between 10% - 50% of their sex offenders.

Jaycee Dugard

Most recently the shocking story of Phillip Garrido has inspired people to be even more conscious of sex offenders living in their neighborhood. He is a sex-offender in California who held Jaycee Dugard in his backyard for 18 years. As a result, the new application tracking sexual offenders has been gaining popularity and has become one of the most popular applications on the iPhone.

ThinAir Offender Locator Application

It's estimated that the typical sex offender molests about 117 children. If you have this application, you can simply click on an address and pull up a map with detailed information about the offenders. All of this information is already available on certain Web sites such as Family Watchdog. This application simply compiles it together in a user-friendly way.

While many welcomed this application, many others weren't pleased, resulting in its removal. "Our goal is not to try and reconvict," says ThinAir's Chief Executive, Trip Wakefield, adding that he understands that some people may have been in the wrong place at the wrong time. "It really comes down to giving parents the ability to make better decisions."1

Wakefield adds that people use the application to make a decision on which park to let their kids play in or which house to buy. Stacie Rumenap, President of Stop Child Predators remarks "We applaud ThinAir Wireless for making this technology available to parents who desperately want to protect their children and keep their family safe from predators. Practically speaking, there's no difference between accessing this information on a home computer and a cell phone. Offender Locator is simply a tool that allows busy parents to take advantage of today's technology in helping to keep their children safe."2

Offender Locator is available on the Internet, BlackBerry and Facebook, in addition to the iPhone. It was on the top 10 list of paid applications for weeks before it was removed by Apple.

Why Did Apple Remove the Application?

Apple did not give a reason for its sudden removal of the popular application. However, people guess that Apple did so to comply with a California state law that prohibits the sale of criminal information for a profit.

Is This Application Legal?

Wakefield claims that the application is legal because the information ThinAir uses is publicly available. Nonetheless, it modified the application to comply with California state law by offering the California data only in the free version, and not the paid version of the application.

In addition, ThinAir sent Apple an opinion letter written by an attorney who argues the application's legality and is waiting to hear from the company.

Whether Apple will allow the application back onto its iPhone remains to be seen.

Sources

1Yukari Iwatani Kane, App Watch: Locating Sex Offenders with the iPhone WSJ Blogs, Sept. 8,2009, http://blogs.wsj.com/digits/2009/09/08/app-watch-locating-sex-offenders-with-the-iphone/ accessed Sept. 29, 2009.
2ThinAir Wireless Strengthens Partnership With Stop Child Predators to Immobilize Sex Offenders, FindLaw, Aug. 7, 2009, http://news.corporate.findlaw.com/prnewswire/20090807/07aug20091602.html, accessed Sept. 29, 2009.

Questions for Your Attorney

  • If a private company or individual provided incorrect information about a sex offender registered under a Megan's Law, would there be any liability to those harmed by the mistake, or who relied on the information?
  • If I own property where a sex offender used to live, and the address still appears in public or private lists of registered sex offenders, can I require the removal of my property's information from the list?
  • I'm selling a house, and I was not aware that a registered sex offender is currently living several houses away - the buyer discovered this, and now wants out of the contract. Can I enforce the contract - the period for inspection of the home and attorney review of the contract have passed.
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