Robin Vander Wall
It is the notification aspect of the regime where we believe there is the strongest possibility of a meaningful challenge and that is what we are primarily focused on. What is needed is a clear strategy that has the best hope of winning. And that’s what we’ve set about to do.
Think about this pragmatically. Right now, every registered person in America is marked, right? All one needs to do is search a sex offender registry. There are all the sex offenders, marked. Exposed. For all the world to see. So, as marking goes, clearly the Courts have yet to see that as a huge problem. And the case law, so far, is clear and controlling: it’s perfectly constitutional for a state to publish the fact of one’s conviction. We don’t like that. But that is current law and it would be foolish at this stage to attempt to argue otherwise. Anyone who wants to spend money challenging the basic requirement to register may do so. But he/she is very (extremely) unlikely to prevail on such a challenge. The point being that if it’s currently permissible for a government to publicize the truth of one’s prior conviction via the worldwide internet, it’s probably just as permissible for the State Dep’t to mark a person’s passport. Overcoming the simplicity of that analogy would require a strange brew of legal magic. Attorneys aren’t magicians, no matter how much they’re paid or how experienced they may be.
The notification aspect of the regime is a different animal because that’s a more aggressive and proactive vehicle for creating very damaging conditions for an American citizen who wants to travel abroad. This is where we will focus our energies, most likely.