from Scott Bernstein:
Make no doubt about it. NCMEC is a government front that exaggerates claims about what they do, statistics about success rates and their self-proclaimed nobility. Celebrities have come to their side to voice their support for NCMEC and if you like to drink from the Kool Aid, you will get poisoned also. The simple question is where are the children? Just ask the hundreds or thousands of parents who reported to NCMEC and ask them where their children are today?
The National Center for Missing and Exploited Children, NCMEC, was created out of the publicity generated from the Adam Walsh disappearance and death back in 1981. The claim raised at the time before Congress was that there was no government-affiliated agency in existence to assist the parents of abducted children. The figures at the time portrayed the situation as grim, insisting that tens, if not hundreds of thousands of children a year were abducted by strangers. As it turned out, long-term abductions by strangers figured only in the tens per year. Since its inception, NCMEC has received millions of dollars each year from Congress. Presently, Congress allocates $50 million per year to the Center. But how is the money used? And how does NCMEC work? NCMEC describes itself as a Missing Children Clearinghouse, meaning that it disseminates information, but plays no active role in the actual recovery of missing children. Today, NCMEC has hundreds of staff and its salaries alone are running close to $30 million a year.
But what does it do? Well, it gathers information and disseminates it. Does this help when a child goes missing? Perhaps, but not significantly. Basically, what happens is that NCMEC posts a photo of the child on their website. They have partner programs with Wal-Mart and with ADVO to distribute photos of parentally abducted children, which have been successful to a small degree. But what about those few children that are actually in peril; the ones that Congress originally intended a national missing children center to be structured for; the kids like Adam Walsh? The answer is, not a whole lot of help gets channeled from NCMEC.
Take the case of Shawn Hornbeck, who had been abducted by a stranger for four years. Or that of Shasta Groene, the little girl, who was abducted after her whole family was murdered. Or Elizabeth Smart, who was with her kidnapper less than a quarter of a mile away from her house with a clear trail any competent bloodhound handler could find. Where was NCMEC then? Nowhere to be found. Does America Need a $50 Million a Year Missing Children Clearinghouse……or, rather, a $50 Million a Year Missing Children Emergency/Ongoing Response Team?
The National Center For Missing & Exploited Children is a private and conservatively funded front organization that works hand in hand with the corporate media to exploit the fear for one’s children in order to help get laws passed which are fully unconstitutional. They are secretive about their operations and routinely refuse to even cite their data sources as they spread false and misleading statistical information to a nervous but clueless public. What is most startling is the seemingly limitless connections this organization has, despite their secretive nature.
They seem to have instant access to nearly any politician or corporate television program, and no journalists ever look into the group itself, but merely parrot the misleading information and often false statistics passed along to them. CNN and Oprah are notorious for doing this, and yet they reach such an unbelievably wide audience that it’s as though what the NCMEC says simply becomes fact when spread through these media outlets, with nobody bothering to verify anything.
It’s as though the claim that they stand for defenseless children somehow excludes them from scrutiny, but their clear involvement in political matters and influencing of the legal system begs some real investigative journalism. To the journalists who try, don’t be surprised when you hit a few walls. NCMEC is nothing more than a patriarchal organization designed to control women who leave a situation where they are being dominated and by doing so, it sends a message to other women caught in an abusive relationship, that they had better not leave or their abuser will hunt them down like dogs with the assistance of Ernie Allen and the justice departments in various countries.
I feel this is an assault on the rights of women and of course, most especially on mothers who are raising the next generation. For me, this is a straightforward attempt to silence women and the women’s movement through the re-victimization of the most vulnerable. If NCMEC’s Going to try to regulate the Internet for Child Porn, It Should At Least Be Subject to FOIA. NCMEC’s job is simply too important to be entrusted to a nonprofit group–such a task can only be performed by a fully trained and funded law enforcement agency (one, which conveniently enough, is subject to the Freedom of Information Act, congressional oversight, and constitutional requirements for due process.)
Congress is unlikely to address the problem of NCMEC’s accountability given the sensitivity of the issue of child protection. But, fortunately, we live in a republic, not a pure democracy: Our third branch of government, the judicial branch, exists to enforce the rule of law; being somewhat insulated from political pressure, the courts provide a final check on the authority even of the almighty NCMEC. So it’s never been high on the Obama administration’s list of czarist reforms. But simply by ordering NCMEC to comply with FOIA, the Lazaridis courthttp://about.bloomberglaw.com/law-reports/district-court/) could, with the stroke of a pen, bring accountability to NCMEC’s law enforcement functions.
The legal question is simple: Does NCMEC qualify as an “agency,” which FOIA defines as an “authority of the Government of the United States?” If so, NCMEC must not only respond to requests for certain of its “records,” but it must also follow a rule-making process akin to that required of federal agencies when they make policy decisions, offering the public appropriate notice and the opportunity to comment on proposed regulations—instead of, say, threatening Internet companies behind closed doors (sometimes the same companies that later make generous donations to NCMEC) or cutting deals with state attorneys general. It turns out that this is not a new issue.
Federal courts have had to decide whether a number of quasi-governmental entities qualify as “agencies” over the years, especially given the trend towards privatization over the last three decades. Some organizations, like the Smithsonian Institution, have decided to comply with FOIA even though courts have held that they’re not required to do so. NCMEC could have allayed all these concerns years ago by doing the same thing, but absent a change in management at the organization, it seems only a court order will force the organization to open its “black box” of decision-making to public inquiry. In a number of other circumstances, courts have required nominally private organizations to comply with the federal FOIA or its state equivalents. A thorough (if dated) treatment of this issue can be found in the 1999 law review article, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities Under Federal Law by Craig Feiser, Florida’s deputy solicitor general and an adjunct at FSU Law. Feiser explains: When Congress amended FOIA in 1974, it added section 552(f)(1) and broadened the definition of “agency” to include entities not explicitly mentioned under the APA, but which “perform governmental functions and control information of interest to the public.”
In deciding whether a private organization qualifies as an agency subject to FOIA, courts have considered two factors. One factor asks whether the entity has substantial independent authority in performing a function of the government, making it the functional equivalent of the government. The other factor asks whether the government substantially controls the entity’s day-to-day operations or organizational framework. In using either factor, the court is essentially asking to what degree the entity is performing a government function.
In one case, the government is pulling nearly all of the strings; in the other case, the entity is making decisions independently for the government. Financially, NCMEC is largely a creature of government: 70% of NCMEC’s $42 million budget in 2007 came from the government. But as Feiser notes, funding does not always mean control. Government control over NCMEC’s internal decisions is unclear. Indeed, the very lack of government control over an organization essentially regulating the Internet and imposing criminal sanctions that could follow convicted “sex offenders” for life would by itself be an enormous problem.
But given what NCMEC actually does, it obviously qualifies as an “agency” subject to FOIA under the “functional equivalence factor,” which as Feiser explains, basically represents the opposite situation from the control factor. Here, the entity is functioning independently, but making decisions for the government, as opposed to having its decisions made by the government. In effect, it is the functional equivalent of the federal government, and, therefore, it should be an “agency” under the FOIA. I am hoping that the court sees NCMEC for what it is: a private organization tasked with implementing not just any government function, but the enforcement of laws against the most vulnerable victims in society. Absent such a recognition, NCMEC will continue to grow into an unaccountable regulator for the Internet.
Today, the only public oversight of NCMEC required by law is the requirement that NCMEC (like any non-profit with federal tax-exempt 501(c)(3) non-profit status) file a Form 990 each year disclosing basic information about its finances. That report does not list NCMEC’s donors, because donors have a First Amendment right to remain anonymous, but a more transparent organization would, like my own think tank, at least identify its major donors. NCMEC’s CEO, Ernie Allen, was paid $359,191 plus $411,636 in benefits in 2006 (PDF p. 46) and $409,821 plus $426,540 in benefits in 2007 (PDF p. 19), for a total of $1.6 million in two years (roughly $800,000/year); I’d be reluctant to suggest that anyone at NCMEC was more interested in money than inprotecting children, but if given the choice, we’d all prefer to do well while doing good. So if Allen were smart, he’d realize that a court order subjecting NCMEC to FOIA might be the best of all possible worlds: Requiring real accountability would neutralize calls for nationalizing NCMEC, allowing the organization to continue operating as a non-profit that can pay quite a bit better than the Federal civil service. Even the Senior Executive Service, for agency heads, maxes out at a measly $197,000/year.
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