On December 8, the U.S. Department of Justice (DOJ) adopted a rule specifying the minimum national requirements for registration under the Sex Offender Registration and Notification Act (SORNA). The rule, which takes effect on January 7, 2022, “provides a concise and comprehensive statement of what sex offenders must do to comply with SORNA’s requirements.” The DOJ emphasized that the rule is not intended to create new standards, but instead memorializes current practices under the express language of SORNA, and the guidelines issued to interpret and implement it. The rule does not address the issue regarding the type of sex offender information that the states must publicly disclose, however. The often-incomplete sex offender record information publicly disclosed by the states creates a significant challenge for background screening companies seeking to ensure accuracy while matching these records to the subjects of their reports, yet the DOJ’s rule does not address this problem.

SORNA establishes national standards for sex offender registration and notification by creating registration obligations enforceable under federal jurisdiction and by setting the minimum standards that nonfederal jurisdictions must incorporate into their sex offender registration and notification programs as a condition to receiving federal funding. SORNA authorizes the attorney general to issue guidelines to interpret and implement the statute. The DOJ’s rule reflects express requirements of SORNA, as well as requirements that have been defined by the attorney general pursuant to that statutory authority.

The rule requires sex offenders to self-report a wide range of personal information at the time of registration and to then keep that information up to date going forward. The required information includes accurate identifying and location information (including date of birth information; Social Security number; residence, employment location, temporary lodging, and international travel information; mode of transportation; etc.) and also any “purported” identifying information used by the sex offender for identification purposes (such as aliases, purported dates of birth, and purported Social Security numbers), due to the fact that sex offenders “may provide … false [date of birth or Social Security number] information in seeking employment that would provide access to children or other potential victims.”

The DOJ emphasized that the rule will further SORNA’s public safety objectives by “facilitating the enforcement of, and compliance with, SORNA’s registration requirements.” In particular, the DOJ attests that “[m]ore consistent adherence to these requirements will enable registration and law enforcement authorities to better track and monitor released sex offenders in the community and enhance the basis for public notification regarding registered sex offenders that SORNA requires.” However, although the rule pointedly reminds states of the type of information they should be gathering, the DOJ declined to address the issue of how states should disclose this information to the public — a topic which the DOJ considers “not germane” to the rule. Thus, the rule does not offer any answers or solutions to the challenge faced by consumer reporting agencies and background screeners seeking to ensure the accuracy of their reports in the face of incomplete record information provided by the states.

Troutman Pepper will continue to monitor and provide updates regarding important legal developments that impact the consumer reporting and background screening industry.