A federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel.

Respecting the IML passport identifier provision, the court pointed out that

the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b).

Citing a State Department declaration, the court pointed out that “the State Department ha[s] not completed the necessary process to begin implementation of § 8, and thus no U.S. passports have received the unique identifiers required by the IML.  Nor is the State Department prepared to begin placing such identifiers on U.S. passports at this time.”

Moreover, based solely on the statutory language,

it is not clear, for example, what form the identifier will take, which citizens will be required to carry a passport with the identifier, or whether the identifier will appear on the face of the passport or will be readable only by a scanner.

Accordingly, the plaintiffs were “unable to clearly articulate which acts they seek to have enjoined or why.”

And it may be some time before they are able to do so.  The State Department’s “best estimate” is that it will not be prepared to implement the passport identifier provisions “until at least some time in the fourth quarter of calendar year 2016.”  Moreover, regulations on issuance of passports under the IML may be subject to notice and comment, which could push full implementation back even further.

Finally, the court noted that

at the hearing, plaintiffs’ counsel indicated that plaintiffs would not oppose the passport identifier “if it were limited to [those with] convictions for child trafficking and tourism.” In other words, plaintiffs do not necessarily seek to enjoin the entire passport identifier provision. Plaintiffs’ counsel reiterated that the purpose of the IML was to address child sex trafficking, which she asserted was not what her clients were convicted of and not what resulted in their being required to register as sex offenders.

This raised a question for the court as to whether plaintiffs are mounting a facial constitutional challenge to the law, as they claim, or an as-applied challenge.

A separate challenge to the IML’s requirement that the United States notify foreign countries of forthcoming visits by U.S. sex offenders, fell victim to similar threshold issues.  In assessing the plaintiff’s likelihood of success, the court ruled that the plaintiffs lacked standing to maintain the claim because they were already subject to similar notification requirements via programs currently operated by the U.S. Marshall’s Service and Department of Homeland Security:

Both the USMS and ICE HSI have had international notification provisions in place for over five years, and representatives of both agencies have indicated that the agencies do not anticipate that the nature of their notifications will change as a result of the IML. Moreover, the Operation Angel Watch and USMS notification schemes currently in effect utilize procedures to identify only registered sex offenders who travel, and do not make notifications regarding persons not currently subject to registration requirements.

Because plaintiffs are not challenging the pre-existing notification provisions, they have not shown that an alleged injury resulting from implementation of the IML would be redressable. Further, any injury that plaintiffs might be asserting relating to such notifications would not be fairly traceable to the IML, and cannot be said to be “certainly impending.” In light of these facts, the court finds that plaintiffs cannot show a likelihood of success on the notification claim.

The government justifies the passport identifier requirement as an attempt to close a loophole in the current notification scheme, whereby a person can travel to an intermediate country then proceed to their final destination in a third country.

The court also rejected an argument that the notification provisions violated the Fifth Amendment by burdening the fundamental right to travel, citing Supreme Court cases for the proposition that no constitutional right to international travel has been recognized by the courts.

We will continue to follow the case.