Tracking Sex Offenders on Your Phone: Smart or Paranoid?

For a few days this past August, one of the top ten most popular paid iPhone apps of the summer suddenly went missing.

The POM Offender Locator, a product of ThinAir Wireless, hit the scene on June 2, a nifty little way to keep track of registered sex offenders using GPS technology. ("POM" stands for "peace of mind.") The paid app, which cost 99 cents, provided the convenient capacity for "anyone living in the United States to view Registered Sex Offenders living in their area," according to its official description.

"Knowledge = Safety" it read, followed by the following sales pitch:

"They know where you and your family are … Now it's time to turn the tables so that you know where they live and can make better decisions about where to allow your kids to play."

The app, whose avatar features a creepy cartoon face with menacing eyebrows, quickly became one of the top-selling downloads of the summer -- the sixth most downloaded app on the iPhone by late July. It was written up by ABC, USA Today, and assorted techie blogs.

There was only one problem, it turned out: It might not be legal.

At least that was the impression of numerous users and online commenters. On the website TechCrunch, one person argued on July 25th, "This app is not legal, at least under CA law. Selling the personal information of people (even ex-criminals) for profit is forbidden."

This remark, along with other questions posted online concerning the legality of the POM Offender Locator, was evidently enough to alert Apple that there might be a problem with the wildly popular app. The company wrote to ThinAir Wireless warning that the sale and distribution of the POM Offender Locator might be unlawful in some territories. The paid app came down, with only the free version -- Offender Locator Lite -- remaining.

Less than a week later, however, the app was back, virtually the same as before, with a few differences. Among them: It no longer included data from the state of California. Also, now it cost $1.99.

Is It Keeping You Safe?

On August 15, a California attorney named R. Sebastian Gibson wrote a letter to ThinAir Wireless CEO Trip Wakefield in response to a request that he provide "a legal opinion letter as to the legality of the POM Offender Locator in the State of California."

Gibson advised his client that "the key here is not only to obtain [law enforcement] authorization to disclose the Megan's Law information" -- "Megan's Law" being the 2004 legislation behind the state's current sex offender database  -- "but also to obtain permission to disclose the information in the manner and scope your Application allows for it to be distributed."

In Gibson's legal opinion, this permission hinged on ThinAir Wireless's ability to convince California authorities that the primary purpose of the POM Offender Locator is to keep the public safe. Wakefield, he advised, should "obtain from the law enforcement agency a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders and anyone who is or may be exposed to a risk of becoming a victim of a sex offense committed by a sex offender."

This should also be included in any product description or disclaimer, he wrote.

Reviewing California law shows this to be pretty sound advice. The state used to have strict limits on the dissemination of its records on sex offenders. But with the introduction of Megan's Law and its vast offender database, which includes profiles for some 63,000 registered sex offenders, these restrictions were rolled back the logic being that if it was good for public safety, it made sense to make such information public. The privacy rights of sex offenders largely dissolved, trumped by the right of the public to protect itself from them.

According to California Penal Code 290.45, "any designated law enforcement entity may provide information to the public about a person required to register as a sex offender … by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person."

However, according to Penal Code 290.46, "a person is authorized to use information disclosed ... only to protect a person at risk." Using the information on the Megan's Law website for discriminatory purposes such as the denial of health insurance, loans, credit, employment, education, housing or benefits is prohibited.

"How Accurate is That Data, Anyway?"

Speaking with AlterNet, the California Department of Justice was reluctant to make a definitive statement about the Offender Locator. According to DOJ press secretary Christine Gasparac, the California Justice Department has "no reason to comment," given that "we did not force the provider to [remove California's sex offender data]. That was actually done by Apple."

"What we do is provide the information on our website," she said. "I can't comment on whether it's legal for someone to take that information and sell it."

However, she added, "We would discourage that, because we update the information on the database every 24 hours, whereas the [Offender Locator App] only updates, like, every month. So, this app, the information that it would be providing, wouldn't be current."

Not only would this be a problem for customers, it would also make the app "a liability for the providers," she said, "in the sense that they might be providing people who have downloaded it with inaccurate information."

Indeed, states across the country have struggled to keep their ever-expanding sex offender registries current, meaning that the data appearing in the POM Offender Locator could be even more backlogged.

"Information changes," says Gasparac. Registrants often relocate, or are removed from the database altogether.

"How accurate is that data, anyway?" asks Lee Tien, a senior staff attorney at the San Francisco-based Electronic Frontier Foundation. "From what I'm told, a lot of that data is out of date. People who are relying on it may believe someone is somebody who they are not. Or they may think that because they moved into a [certain] neighborhood … they are living near a sex offender. I don't know how much independent verification there is of of that data, I don't know how often it is updated; data quality, data integrity -- all of this is an issue."

To get a sense of what kind of disparities might exist between the data offered by the Offender Locator and the official stats maintained by the state of, say, New York, where I live, I visited the recently revamped POM Offender Locator website and entered my zip code. I got 49 hits, complete with a photo, address, date of birth, etc. But entering the same zip code in the official New York database produced only 26 profiles -- and a handful of them were duplicates.

Public Safety or Private Profit?

ThinAir Wireless CEO Howard J. Wakefield III, otherwise known as Trip, describes himself as a born-again Baptist and "serial entrepreneur," who, according to one professional profile, has "had a few successes, some spectacular failures but learned from each of them." Based in Houston, TX, his professional goal is to "Positively Impact 20 Million People By The Year 2020." It's not clear exactly how he would measure his progress, but it probably has something to do with getting people to buy his products, which include tracking devices for "children, pets, and vehicles." (Currently, "by becoming part of that mission, you can save up to 50% on both the POM Pilot GPS Tracker and the POM Altert System.")

Wakefield and fellow developers of the POM Offender Locator argue that their product is all about public safety. On its official Facebook page, which has 24,890 monthly active users and more than 5,000 fans, they make the case:

Due to the overwhelming increase in registered sexual predator's (sic) living among us, it just makes sense to want to help everyone to have the tools and foresight necessary to be able to make the right decisions about where they allow their kids to play.
By not knowing where Registered Sex Offenders live, it is like playing "Russian Roulette" with the safety of your loved ones. These individuals know who you are, and worse, know who your kids are!
It's time to "turn the tables" so that we can all make the best decisions about our kids' safety and keep them from becoming another statistic. They are counting on us to protect them, because they, like you, have no idea with whom they might inadvertently mingle and these predators tend to repeat their offenses at an alarming rate.

"Together we can make a difference!" the Facebook page says. "We have made it so easy for you to do your part, by first educating yourself, then helping to educate others by sharing this application."

Sharing the application via Facebook may be free, but at $1.99 a pop, it's hard to separate the iPhone version from the countless games, news sites, and assorted gimmickry available to iPhone consumers, all of which have been designed with a different aim in mind: profit.

This spring, the Christian Science Monitor ran a story about the money to be made off of iPhone apps, describing the dash to design them as "a high-tech gold rush."

"Since Apple opened the [App Store] through iTunes in July 2008, it's been a mad rush to get apps onto the store," it reported. And no wonder: "The most popular iPhone applications have been downloaded sometimes at a rate of 10,000 times a day. And at an average rate of 99 cents per download, Apple is generating serious money. It takes a 30 percent cut from what the App earns and the rest goes to the developer."

That means big bucks for those lucky enough to break into the Top Ten, as the POM Offender Locator did this summer.

Even free apps are reportedly moneymakers, thanks to advertising and their ability to up-sell consumers. According to data released in May by the iPhone advertising platform AdWhirl, free apps that make it into the top 100 most popular can earn between $400 to $5,000 a day -- "a wide range to be sure, but even at the low end that works out to around $12,000 a month," pointed out a blogger at TechCrunch.

Like many free apps, the complimentary version of the POM Offender Locator is a thinly veiled way to rope customers into purchasing the $1.99 one. Upon downloading it, you are immediately invited to "Download the full version" -- and sticking with the free version doesn't get you very far. Upon entering your address or allowing it to use your current location, it provides you with ten names, along with photos, physical descriptions, addresses, etc -- but that's it.

After browsing the names for a few minutes, it informs you: "No more free searches are available today please retry tomorrow or purchase the full version."

Feedback in the iPhones App Store reflect this (along with no small amount of frustration). Although the app gets a rating of four and a half (out of five) stars -- there are plenty of reviewers who rave about it, citing its usefulness for women and people who live by themselves -- others argue that it is merely a way to turn fear into profit.

"Just another excuse to make the general public to spend their money on their (sic) parinoia," wrote a commenter named Master Mac on Sept 17. "Hope the public are able to go out of the front door after being so scared & paranoid for their safety.")

Another commenter calls it a "Money making app."

"Kicks u out of this app if u dont purchase the full version. Only allows u to view 10 offenders around ur house ... dont waste time find another app who ares about ur safety than ur money!"

"The makers of this want you to pay money for this information when if they cared about safety they wouldn't limit the number of 'criminals' or the times of day you can use it," said another commenter, who also called it "a bit stalkerish."

According to a recent press release, ThinAir Wireless says it intents gives a small percentage of its profits to organizations like Stop Child Predators. ("Our mission is to positively impact families and help them create a safer environment for their loved ones," said Wakefield.)

As with state sex offender databases, the actual offenses listed in the Offender Locator are a little confusing; in my New York zipcode, the sampling ranged from "Actual sexual contact;" to "No designation applies" to two instances of "Lifetime Registration Subject to petition for Relief” (which may explain the discrepancy between the app and the state database.)

Critics of sex offender registries have long argued that they may encourage vigilantism against people who have ostensibly already paid their debt to society, and it's not hard to see how, particularly now that this information is available in such a mainstream, mobile form. Wakefield says this is not his intention. "Our goal is not to try and reconvict," he told the Wall Street Journal this summer, while also acknowledging that there are some people who don't belong on the sex offender database to begin with. Ultimately, he argues, "We're taking data that's already public, and we're just making easier to access.”

In his legal letter, Sebastian Gibson holds he knows of no law that prohibits selling this kind of personal information for profit -- an opinion echoed by EFF attorney Tien. Besides, Gibson argues, "ThinAir is not really selling the information. ThinAir is selling its Application which combines the data from all 50 states and allows a user of the App to learn whether he or she or their children live, work, play or go to school near Registered Sex Offenders.”

“The names and likenesses of the Registered Sex Offenders are not being utilized to sell coffee mugs or t-shirts," he says.

Maybe not, but others warn that the app is putting out unverified information in a haphazard, even dangerous way.

“When you play with and put out apps that use these kinds of labels and use this kind of data, and exploit this kind of fear and concern," says Tien, "that's volatile data."


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