[IP] Re: Judge: Americans need background checks to date internationally

[David Farber <dave@farber.net>]

Begin forwarded message:

From: leslie.sussan@verizon.net
Date: April 4, 2007 6:56:06 PM EDT
To: dave@farber.net
Subject: Re: [IP] Judge: Americans need background checks to date  
internationally
Reply-To: leslie@abanet.org

> From: David Farber <dave@farber.net>
> Date: 2007/04/04 Wed PM 02:38:26 CDT
> To: ip@v2.listbox.com
I don't claim to know a great deal about this particular area of law,  
but since I have apparently claimed the status of a resident lawyer  
among you other interesting people, I thought I might point out some  
caveats made clear by even a cursory review of the statute.  The  
posting in its histrionics about Americans not being about to date  
without background checks greatly overstates what is happening.

First, the law does NOT restrict Americans from contacting any sexy  
foreigners who take their fancy.  Instead, its effect is limited to  
international marriage brokers who are defined to include only  
services that  charge fees to provide American clients with personal  
contact information for potential matchmaking with foreign nationals,  
etc.  The clients are not subject to restriction or penalty, only the  
brokerages.  Second, it does not single out match.com as an exception  
but rather excludes from the requirement of collecting detailed  
background information any matchmaking services that charges the same  
fees and provides the same services to all comers regardless of  
nationality and gender, as well traditional cultural or religious  
matchmaking groups.

None of this is to say that the law is a particularly good way to get  
at the problem it seems to target of unsavory American men paying  
large sums to obtain contact information of foreign women in order to  
bring them to the US under the claim of matrimonial intentions.  Nor  
is it to say that such abusive ventures are a big problem needing  
regulation.  I am not sure about either premise. IMBRA's disclosure  
requirements are reasonably related to Congress' legitimate interest  
in preventing fraud and deception and addressing domestic abuse and  
human trafficking against so-called “mail-order brides.”

The court decision (which can be found in Westlaw at ) does a pretty  
thorough and extensive job of summarizing the history of mail order  
bride legislation and the information on which Congress based its  
concerns.  What the court did was to refuse to grant an injunction to  
prevent the law from being enforced.  Courts generally avoid  
preemptively enjoining enforcement of any law in a vacuum (that is,  
before anyone specific has been charged with doing something  
specific).  If a law COULD be implemented in a way that would keep it  
within Constitutional bounds, courts generally presume that it WILL  
be implemented constitutionally unless forced to conclude otherwise  
by actual enforcement actions.  Also the court here determined that  
the dating service could only assert its own constitutional rights,  
not those of a theoretical potential client chilled by the thought of  
making disclosures to get a mail order bride, and the company's  
interests in speech here were purely commercial.  (They charged large  
fees to American men, and none to the women they recruited, and made  
additional money from kickback shares from lawyers doing the K-1  
visas at a discounted flat rate and from translated phone conferences  
and trips.)  Commercial speech can be subjected to regulation for  
reasons less compelling than would be required to infringe on  
personal or political speech.  Here, the court found that "IMBRA's  
disclosure requirements are reasonably related to Congress'  
legitimate interest in preventing fraud and deception and addressing  
domestic abuse and human trafficking against so-called 'mail-order  
brides.'"  Matching services that are charged under the law are not  
precluded by this decision from attacking the constitutionality of  
the law by this decision, but the court is saying that it doesn't  
look like the argument is strong enough to justify striking down the  
law in advance.

Just hope that clarifies the legal status a little.

Leslie



> Subject: [IP] Judge: Americans need background checks to date  
> internationally

> Begin forwarded message:
>
> From: Richard Forno <rforno@infowarrior.org>
> Date: April

 4, 2007 3:25:35 PM EDT
> To: Infowarrior List <infowarrior@attrition.org>
> Cc: Dave Farber <dave@farber.net>
> Subject: Judge: Americans need background checks to date  
> internationally
>
>
>
> US Judge Affirms IMBRA: Americans Must Have Criminal Checks Before
> Contacting Foreigners on Internet
>
> http://www.prweb.com/releases/2007/4/prweb515227.htm
>
> A new federal law that makes it a crime for Americans to communicate
> with
> foreigners on dating websites without criminal background checks is
> upheld
> by a federal judge.
>
> Washington, DC (PRWEB) April 2, 2007 -- On March 26, 2007, a new
> federal law
> restricting Americans from contacting foreigners through internet  
> dating
> sites was upheld by a federal court after a Constitutional challenge
> by an
> internet dating company. In European Connections v. Alberto Gonzales,
> 1:06-CV-0426-CC, Judge Clarence Cooper of the US District Court for  
> the
> Northern District of Georgia dismissed a lawsuit by European  
> Connections
> which claimed that the law violated the right to freedom of speech
> contained
> in the First Amendment to the United States Constitution. The
> plaintiff had
> failed to challenge the law based on the First Amendment right to
> assemble.
>
> According to Tristan Laurent, President of the advocacy group Online
> Dating
> Rights, "We will now have to take legal action from the point of view
> of the
> users of online dating sites. The whole idea that it is now a crime  
> for
> American men to send emails to women in other countries is so
> preposterous
> it is beyond belief. The judge's ruling that there is no  
> Constitutional
> violation in forcing Americans to divulge all sorts of highly personal
> information to a complete stranger or scammer abroad before the
> American can
> even say hello or know to whom he is writing is only exceeded in
> foolishness
> by Congress in making the law."
>
> The law was originally called the International Matchmaker Regulation
> Act,
> but it did not pass Congress in previous years by that name and it
> was later
> named the International Marriage Broker Regulation Act (IMBRA)  
> before it
> passed on December 17th, 2005. The law, which was attached to the
> reauthorization of the Violence Against Women Act (VAWA) was
> apparently not
> debated in public and Mr. Laurent says that no dating company or
> dating site
> user was invited to a closed-door Senate hearing in July 2004.
>
> IMBRA makes it a felony for an internet dating company, that primarily
> focuses on introducing Americans to foreigners, to allow any  
> American to
> communicate with any person of foreign nationality without first
> subjecting
> that American to a criminal background check, a sex offender check and
> without first having the American certify any previous convictions or
> arrests, any previous marriages or divorces any children and all
> states of
> residence since 18. Match.com is excluded from the law, and the judge
> found
> that this exception posed no challenge to the Fifth Amendment equal
> protection clause because American women are supposedly not abused by
> American men that they meet on the internet, and thus are not in  
> need of
> protection.
>
> The law was sponsored by Sen. Sam Brownback, R-KS and Sen. Maria
> Cantwell,
> D-WA and was championed by key women's groups. The law was passed  
> after
> these groups made claims that foreign women who marry American men are
> subjected to higher rates of abuse than are American women.  
> However, the
> only study that addresses this issue was done by the INS in 1999  
> and it
> found that the rate of abuse in such international marriages is one-
> seventh
> the rate of abuse in domestic marriages. See
> http://www.online-dating-rights.com/index.php?
> ind=downloads&op=entry_view&id
> en=24
>
> Online Dating Rights Director of Public Relations Jim Peterson said
> of the
> judge's ruling: "It is a sad day for freedom in our country when an
> American
> has to have a criminal background check before he can say 'Hello" to a
> foreigner through the internet." He also said that "America is the  
> only
> country in the world that regulates communication between two  
> consenting
> adults seeking to communicate via internet, with the possible
> exceptions of
> China and North Korea. Without new email technology, IMBRA could not
> have
> been even feasible because people generally sent paper letters to each
> other's home addresses just a few years ago. Is it right for the US
> government to make a form of communication illegal when it was the
> only form
> of communication possible just a few years ago?"
>
> The law has been attacked in a bipartisan fashion by prominent  
> feminist
> Wendy McElroy
> http://www.ifeminists.net/introduction/editorials/2006/0111.html  
> and by
> men's rights supporter David Usher
> http://capitolhillcoffeehouse.com/more.php?id=2444_0_1_0_M and by
> immigration attorney Gary Bala
> http://www.online-dating-rights.com/index.php?
> ind=downloads&op=entry_view&id
> en=21
>
> Mr. Laurent says that his organization has undertaken a fundraising
> drive to
> raise $100,000 for a class-action suit against the government on
> behalf of
> all the men who can no longer contact women in Canada, England,  
> Germany,
> Russia and the Philippines due to this law. Contributors are asked to
> visit
> the website at www.online-dating-rights.com.
>
> Both Mr. Laurent and Mr. Peterson are available for media  
> interviews but
> since both have to work for a living and do not receive federal  
> taxpayer
> funding, arrangements for telephone interviews should be made by
> email if
> possible. Contact Mr. Laurent at onlinedatingrights @ yahoo.com and  
> Mr.
> Peterson at veterans @ veteransabroad.com
>
>
>
>
> -------------------------------------------



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