This week’s cautionary tale in sloppy, reactionary lawmaking comes courtesy (as it so often does) of the Massachusetts legislature.

Our very own Great and General Court, a full-time, democratically-elected, deliberative body which occupies the very “hub of the solar system” (but hasn’t quite gotten around to formally criminalizing human trafficking)¹ hastily passed a misguided amendment to our criminal laws earlier this year which effectively attempted to regulate the entire Internet. Here’s how it (literally) went down.

Round 1: “If the Legislature wishes…”

On February 5, 2010, the SJC issued a fairly conservative, by-the-book decision in Commonwealth v. Zubiel, 456 Mass. 27 (2010), in which it strictly construed the text of the G.L.c. 272, §31 to find that the statutory definition of “matter harmful to a minor” did not include instant messaging. The defendant in that case was nailed in a classic To Catch a Predator-style sting following a series of online chats with an undercover officer posing as a 13-year-old version of herself. Over the defendant’s objection, the trial court determined that his Internet chats with the officer constituted an attempt to disseminate “matter harmful to a minor” under G.L.c. 272, §31. The SJC reversed this finding and agreed with the defendant that the statutory definition of “matter”—the most relevant portion of which included “handwritten or printed material”—could not have possibly meant to encompass text-only online communications. In conclusion, the Court quite reasonably found that:

While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in §31 do not do so. If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.

Whatever “judicial activism” may be,² clearly this ain’t it. The Court stayed well within the lines here and politely invited the Legislature—as, with mixed results, it so often does—to update one of the Commonwealth’s many hundreds of outdated laws.

So it did.

As of July 11, 2010, the new text of §31 defined “matter” as:

…any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, [the original text of the definition ended here] or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

As someone behind this ridiculously overbroad definition must have known, this kind of thing has been tried on the federal level at least twice within the past fifteen years, and there is a good reason that it has failed both times.³ Rather than targeting creeps who directly and purposefully attempt to inappropriately communicate with children on the Internet, this amendment effectively attempted to criminalize anything on the Internet that a child might see… which is, of course, anything on the Internet.

It is reasonably simple to keep kids out of, say, an adult bookstore or the World Air Sex Championships.⁴ But, as anyone who has lived in a country with free and regular Internet access within the past twenty years should probably understand, it is nearly impossible to effectively prevent determined minors from accessing an adult book reprinted on a freely-accessible site via a Creative Commons license, let alone a particularly excitable blogger’s detailed description of the winning performance at the World Air Sex Championships.

To recap: In response to the SJC politely pointing out that the Legislature had failed to understand how a given law might apply to the Internet, the Legislature proceeded to demonstrate that it did not understand the Internet at all.

Round 2: If You Can’t Beat ‘Em, Enjoin ‘Em

All of this is, of course, the kind of thing to which any given ACLU lawyer can whip up a written opposition before she has finished her first cup of morning coffee. The inevitable request for a preliminary injunction [PDF] came almost as soon as the new definition became law, with the plaintiffs arguing (as summarized above) that the amended statute was overbroad in that it is nearly impossible to control who might access content which might be deemed “harmful to a minor” on the Internet.

In its commendably-thorough briefing [PDF], the Attorney General’s office was effectively forced to concede that the statute as written would be unconstitutional without an explicit requirement that the sender know that he was purposely disseminating the material to a minor, rather than simply posting such material in a place where a minor might have an opportunity to see it. Although this proposition found little support in the text of the statute itself, the AG did its best to argue that a 2006 SJC case⁵  had judicially established this kind of purposeful dissemination as an element of the crime, and otherwise relied on the kinds of generalized public policy arguments which typically signal an appellate party’s own self-awareness that a losing battle is about to be lost.

U.S. District Court Judge Rya Zobel’s decision granting the plaintiffs a preliminary injunction came down almost exactly along welcome and expected lines today. The District Court held that Belcher had not squarely ruled on the level of intent necessary for a conviction under this statute, and that the new definition was otherwise simply so overbroad as to be “without question” facially violative of the First Amendment. Given the procedural posture of the case, the court found that it would be inappropriate to strike the statute down completely, and instead granted the plaintiffs a preliminary injunction while inviting both parties to submit a more formal permanent injunction.

Round 3?

We’ll see. It appears likely that the AG’s office will take the District Court up on its offer to come up with an injunction that both parties can live with, but it also has the right to appeal this decision to the First Circuit. More as it happens…

1. There’s also an argument to be made that we haven’t quite gotten around to criminalizing distribution of methamphetamine, but maybe more on that another time… [↩]
2. And I wouldn’t deny that something approaching this description does occasionally arise in Roberts-era American jurisprudence… but not simply because I disagree with the outcome of a given case. [↩]
3. A much narrower and more appropriately-targeted provision requiring certain schools and libraries to install user-side content filters  seems to have stuck, so far. [↩]
4. This was the only event I could possibly imagine might fall under the purview of the statute’s “dance” provision. [↩]
5. Commonwealth v. Belcher, 446 Mass. 693 [2006] [↩]

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As both of my regular readers may recall, I had a few things to say last year about the lack of both transparency and proper subject-matter jurisdiction of the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS).  To my surprise, this painfully wonky little critique of a mostly-unsung agency has been one of my most consistently-visited posts over the course of the past year.¹

AAO Chief Perry J. Rhew

One of those visitors was new AAO Chief Perry J. Rhew, an accomplished public servant with a resume which includes significant experience and positions of authority in civil, criminal, and administrative law. I have recently had the privilege of conducting a very pleasant email exchange with Chief Rhew, and would like to take an opportunity to update my thoughts on the AAO in light of his gracious response to my concerns.

Chief Rhew initially contacted me with a personal invitation both to the AAO’s first-ever live public conversation with its stakeholders via an interactive conference call, as well as to consider the agency’s progress toward addressing my concerns over the past 12 months. Although I had originally marked my calendar for this unique event earlier this week, I was disappointed when unavoidable client obligations ultimately forced me to miss it.  While I by no means consider myself to be a journalist,² I wanted to be sure to permit the AAO a full and fair opportunity to respond to the issues raised by last year’s post.

While I would have preferred the opportunity to hear the more comprehensive presentation provided in this week’s session, Chief Rhew was kind enough to take the time to summarize his main points for me in his most recent email, which I have reprinted below in its entirety with his permission:

Matt,

I’m sorry you had to miss the call.  Unfortunately there is no transcript or live recording.  We had about 30 people in the room and another 300 or so on the phone, which resulted in a lively discussion for the two hours.

You figured prominently in my opening remarks.  I told those assembled that before coming on board I saw your blog and took the concerns to heart, keeping what you said in mind over the first couple of months to assess the need for change.  With the support of a terrific leader, Alejandro Mayorkas, here’s what we’ve focused on in the past year.  I discussed all of these issues on the call Wednesday.

• More information about the AAO is now available online.  I listened to external stakeholders and USCIS employees over the first few months, then sat down with the Office of Communications and crafted webpages for www.uscis.gov/aao, the first AAO website.  The pages went live in January and we are adding to them as additional information is developed.

• We’ve worked hard to increase our public presence by attending individual stakeholder sessions and listening events across the country.  I visited the Service Centers in Vermont, Nebraska, California, and Texas and field and district offices this past year, speaking to employee groups and at public events.  I was honored to work with the terrific Office of Citizenship and be able to give the keynote address at Naturalization Ceremonies at the Jimmy Carter Presidential Library in Atlanta and at Fort Necessity Battlefield.

• We are adding adjudicators to our staff in an attempt to reduce delays in processing.  We expect to have the new adjudicators trained and drafting decisions by the first of the year, and hopefully will reduce our backlog of H1, I-601, and I-140 cases significantly in the coming months.

• Our stated goal for the year was to achieve a processing time frame of under six months for at least 25 of the 41 types of cases we report online each month.  We ended the year with 31 of the 41 averaging under six months.  Three times during the year we shifted resources and retrained adjudicators to move them to more pressing caseloads.

• We report and update our case processing timelines monthly online.

• After a months long effort yesterday, for the first time in 12 years, the AAO published two Precedent Decisions.

• As I mentioned on the call and have stated before, we hope to soon publish a proposed AAO Reg that will help streamline the appeals process and give the public a much better understanding of what to expect when they file an appeal.  We currently operate under a delegation of authority from the Secretary, but the new Reg will once again codify our jurisdiction.

• We are working with the USCIS Transformation Leadership Team to ensure that the AAO moves forward into the electronic environment.

• We worked with our colleagues at the Office of Chief Counsel, the Office of Policy and Strategy, the Office of Public Engagement, and the DHS Office of General Counsel to strengthen our relationships with those offices and hopefully move serious, high level discussions about common issues to the forefront of conversations.

• I hold frequent meetings with all of my Branch Managers at the AAO to discuss case concerns and resource allocation.

That’s it in a nutshell . . . so far.  I want to thank you again for raising these concerns last year.  It is certainly not always the case, but we now know the answer to that age old question:  What’s the sound of one lone voice crying out in the blogosphere?  In this case, positive moves in the right direction.

Take care,

Perry

Chief Rhew’s summary of his commendable efforts since assuming leadership of the AAO speaks for itself. I would like to reiterate, as I hope was evident from my original post, that it was never my intention to question the AAO’s integrity, efficiency, commitment to its stakeholders, or unquestionable utility to the American immigration system. My only serious stated qualms were with the agency’s (a) transparency (in line with the recommendations of the 2005 ombudsman’s report) and (b) proper subject-matter jurisdiction, an issue which is of enormous importance to me as an appellate advocate. I am fully satisfied that Chief Rhew has personally committed himself to taking significant steps toward improving the former, and I look forward to seeing the proper regulatory restoration of the latter.

On a personal note, I would like to thank Chief Rhew for taking the time to engage in this direct, effective, and (perhaps most importantly) enjoyable dialogue, both with me on a personal level and through the public conversation I was sorry to miss earlier this week. This is open and responsible government at its finest, and a nice reminder of why I have continued to appreciate the opportunity to assist deserving individuals from around the world toward fulfilling their dreams of full participation in our democracy.

1. For as much as I would like to take credit for all of this traffic, this fact likely says more about the historical dearth of publicly-available information on the AAO (one of the main points of contention within my post) than it does about my Google ranking. [↩]
2. Or at least tend to sprinkle my writing with several times more miserable puns and references to Scotch than AP style would typically allow [↩]

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