March 2010 Archives

The National Association to PROTECT Children, which describes itself as "a national pro-child, anti-crime membership association. . . . committed to building a powerful, nonpartisan force for the protection of children from abuse, exploitation and neglect," recently issued this rare rebuke of the National Center for Missing and Exploited Children:

The National Center for Missing and Exploited Children (NCMEC) paid its CEO over $1.3 million in salary and compensation in 2008, the St. Petersburg Times reported last week, in an article now drawing fire from the group.

"In 2008, the latest year for which records are available, [Ernie] Allen made $511,069 as head of the center and its international affiliate. He also received $787,126 in deferred compensation and underfunded retirement benefits, as well as $46,382 in nontaxable benefits — a total of $1,344,567," reports Susan Taylor Martin, a veteran investigative reporter.

NCMEC claims that the additional $787,126 it paid Allen in 2008 was for "retirement benefits that have accumulated for more than 20 years." Martin also reports that "the center's 350 employees include 11 who are paid more than $125,000."

Martin asked Sandra Mioniutti of Charity Navigator, which calls itself, "the nation's largest and most-utilized evaluator of charities," about NCMEC's practices. "I think it doesn't pass the smell test with donors... said Mioniutti. "It's very hard for people to wrap their arms around huge salaries, especially right now when we're in a recession.''

The article provoked a rare official response on the issue from the National Center.

"Mr. Allen’s involvement with NCMEC goes beyond the traditional CEO. He was one of the co-founders of both NCMEC and ICMEC. Mr. Allen serves as the full-time chief executive and manages two nonprofit organizations with separate boards of directors, one domestic and one global, and he played a significant role in building both organizations," NCMEC says in the statement on its website. (For a list of the NCMEC Board of Directors, click here.)

"Key facts and information that were provided to Ms. Martin were omitted and the resulting story contained inaccurate and misleading information," claims NCMEC.

Government Salary?

A second issue raised by the St. Petersburg Times is also provoking a defensive response from the Center. The paper's story runs under the headline, "Quasi-governmental missing kids center enjoys key exemptions from federal rules," raising questions about NCMEC's legal status and salaries that dwarf normal government pay scales. Allen's base salary of $511,069 is greater than President Obama's, and nearly three times the salary for a U.S. Senator (source).

"The National Center for Missing & Exploited Children (NCMEC) is not a government agency..." responds the group. "NCMEC is a 501(c)(3) nonprofit organization. It is an information clearinghouse. It assists law enforcement, but does not engage in law enforcement action itself." At NCMEC's 20th anniversary "Tribute to President Ronald Reagan" in 2004, the agency described itself as "a public-private partnership, taking the best of both worlds to better protect America's children."

But NCMEC's legal status is not that simple.

Often referred to as "Congress' Nonprofit," NCMEC operates in a gray area between government and the private sector. Attorney and author Andrew Vachss (a PROTECT National Advisory Board member) calls the agency "the Blackwater of Child Protection."

"Why should we be outsourcing what the government's supposed to do in child protection?" asks Vachss. "Why should this be in private hands?"

By special statutory authority, the ostensibly private Center has access to secure law enforcement databases, warehouses illegal child pornography images and even has federal agents working under its roof. Federal law also gives NCMEC the power to compel private industry to deliver evidence of suspected online crimes, which is then forwarded to law enforcement, effectively making the Center an operational middle man in thousands of criminal investigations.

NCMEC's power and funding have often come at the expense of law enforcement, as Congress starves law enforcement agencies while funding the Center lavishly. When NCMEC took over a critical child pornography database for identifying victims from the FBI, Bureau officials explained sheepishly that "they had the people and we didn't." However, NCMEC says in its official statement that it "is not subject to the Freedom of Information Act (FOIA)," making it impossible for citizens to determine how effectively or quickly thousands of child victims are now being searched for, identified and located.

Many in the law enforcement world resent the power and funding Congress has given to NCMEC and fear its political influence. "I'd rather piss on a Mafia boss' shoes than piss off NCMEC," one former child pornography investigator told PROTECT. That sentiment is whispered among law enforcement nationwide.

Scrutiny Unlikely

It's unlikely, however, that revelations of NCMEC salaries will trigger official action against a massive agency that one top Justice Department official recently called politically "wired."

"It's widely understood on Capitol Hill that openly criticizing or challenging NCMEC is off-limits," says PROTECT executive director Grier Weeks. "Their untouchable status weakened a little after the Foley scandal [Rep. Mark Foley headed NCMEC's Missing and Exploited Children's Caucus], but criticism is still spoken in code and prefaced with effusive disclaimers.

"As far as expecting low- or mid-level bureaucrats at Justice to challenge the Center on issues like million-dollar salaries, forget about it."

NCMEC operates under a $30 million annual "cooperative agreement" with the U.S. Department of Justice. It raises approximately $10 million more a year from private entities, including companies that it has quasi-regulatory power over (see Microsoft settlement, Cuomo prosecution threat).

"The question raised by the St. Petersburg Times is not so much about NCMEC's accountability," says Weeks. "That is what it is. This is about the federal government's accountability. It would be hard to argue at this point that NCMEC is not a re-branded government agency operating outside the bounds of normal government accountability--one free to aggressively influence the political, legislative and budgetary process."

The New York Times editorialized today about sexting:

Schools across the country are understandably concerned about students “sexting” — sending sexually suggestive photos and text messages by cellphone. But a Pennsylvania school district went too far when it referred several female students for criminal prosecution after their images showed up on other students’ phones and they refused to participate in an antisexting education program. A federal appeals court was right to rule last week that parents had the right to block the district attorney from prosecuting the girls.

In the fall of 2008, officials in the Tunkhannock Area School District discovered nude and seminude pictures of female students on cellphones belonging to other students. After they found out that male students had been exchanging these images, the officials turned the phones over to the district attorney to investigate.

The district attorney wrote to parents of at least 16 students, who either owned the confiscated phones or appeared in the photos, threatening to prosecute the students on child pornography charges. If the students enrolled in an education program covering sexual harassment, sexual violence and related issues, he said, they would not be charged.

The parents of three girls refused to enroll their daughters. The parents of one girl, who was photographed speaking on a phone in a white bra, said she was simply being a “goof ball.” Another girl was seen in a towel, looking like she had gotten out of the shower.

These parents sought a temporary restraining order to block the district attorney from bringing criminal charges against their daughters, which the court granted. The cases against two students were dropped and the United States Court of Appeals for the Third Circuit, in Philadelphia, has since upheld the lower court. It said the third student and her parents are likely to succeed with their constitutional claims.

The prosecutor’s threat to bring charges, the appeals court ruled, would be retaliation for the exercise of protected constitutional rights — the parents’ 14th Amendment right to parental autonomy, and the child’s First Amendment right against compelled speech. Students in the program are required to write about how their actions were wrong.

The court said the prosecutor was trying to retaliate, rather than simply enforce the law, because there was so little basis for believing the three students had engaged in illegal activity — that they ever possessed the images or were involved in transmitting them.

Schools have a strong interest in maintaining an appropriate learning environment, indeed a duty to do so. But as students use more — and more elaborate — forms of technology, school officials will need to do a better job of upholding decorum without creating felony prosecutions out of misbehavior that should be handled by parents.

The long awaited decision in the first sexting case to reach a federal appeals court was issued yesterday by a unanimous Third Circuit. The verdict: "appearing in a [sexting] photograph provides no evidence as to whether that person possessed or transmitted the photo."

In other words, as I correctly opined here in December, a minor depicted in a sexting image is only guilty of a child pornography offense if the prosecutor can prove that they possessed or distributed their image; a teen's appearance in a sexting image (even an image of bona fide child pornography) is not, in and of itself, a violation of current law.

As the Third Circuit stated:

Assuming that the sexual abuse of children law applies to a minor depicted in the allegedly pornographic photograph, and that the photo in question could constitute a “prohibited sexual act” (issues on which we need not opine), we discern no indication from this record that the District Attorney had any evidence that Doe ever possessed or distributed the photo.

The Court threw out the prosecutor's case against the sexting students for reasons totally unrelated to the content of the images basing its decision instead on First Amendment constitutional rights related to the prosecutor's threats of prosecution, the imposition of a mandatory educational class and a parent's fundamental Constitutional right to control their child's education (concerning the prosecutor's proposed class).

Bottom line: despite the use of the term "First Amendment Rights," the Court's Constitutional analysis is completely unrelated to the content of the sexting images. The Court side-stepped the entire issue at the heart of the sexting debate by basing its decision on procedural issues and not the substantive issues of whether or not sexting constitutes child pornography and whether or not sexting teens have a Constitutional right to produce lurid images of themselves.

The question of whether or not sexting = child pornography will have to wait for another day which will certainly come since this fad shows no signs of abating.

Appellate decisions regarding foster care are rare and decisions that focus on foster children are rarer still. So when two decisions appear in the space of about a week they deserve some commentary. One is from the Maryland Court of Appeals, Maryland's highest court, and addresses an issue of great interest: under what circumstances and to what extent does a foster child's attachment to foster parents impact the rights of the biological parents when such parents are confronting the termination of their parental rights? The other case, from the New York Appellate Division, also addresses an issue of interest: can foster children sue foster parents for negligent supervision?

A lesson that can be learned from both cases is that the laws that affect foster care in general and foster children in particular are far from uniform. Each case provides insight into these important issues and suggests how the law may evolve.

Broadcast today on The Kojo Nnamdi Show on WAMU in Washington, DC:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Listen to the re-broadcast here.

This just in from Philly.com:

A group of Lower Merion and Harriton High School parents met to discuss ways to derail the possibility that a federal lawsuit over laptop spying could lead to a lengthy and expensive class-action case against their district.

Bryn Mawr resident Michael Boni, one of the organizers, said yesterday: "We have spoken to our neighbors and friends, and it seemed that there was a groundswell of opposition to one family with one lawyer bringing this action on behalf of the community."

He said the parents were "not suggesting there weren't problems" with how the district has handled the laptop issue. "But we don't think [a class-action lawsuit] is the answer."

The group, which calls itself lmsdparents.org, is limited to parents of students at the two high schools. Between 300 and 400 parents had signed on by yesterday afternoon, said Bob Wegbreit, another founder.

A related group calling itself Parents in Support of the Lower Merion School District, which said it shared the same objectives, had garnered more than 700 signatures on an online petition by yesterday evening.

Andy Derrow, a Harriton junior's father who has joined the new group, said yesterday: "There are a lot of us who are incredibly skeptical of the motives of the Robbins family." He said the district was a "pioneer" in buying laptops for students to use at home as well as in school.

"It is so easy to second-guess the decision [to use the laptop theft-tracking device], but there was no handbook out there for how to do it," he said. "We are all waiting for all the facts to be known, but so far, our attitude is that we want to help the school district fix whatever needs to be fixed and to move on."

Read the entire story here.