BILL ANALYSIS
AB 2208
Page 1
Date of Hearing: April 20, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2208 (Torres) - As Amended: April 14, 2010
SUMMARY : Provides that, commencing January 1, 2011, in any
case in which a defendant is granted probation or parole for an
offense that requires him or her to register as a sex offender,
as specified, and either the victim of the offense was under 18
years of age at the time of the offense, or the Internet was
used in the commission of the crime, the defendant shall be
prohibited form accessing an Internet social networking Web site
during the period of time he or she is on probation or parole.
Specifically, this bill :
1)Includes in the statement of notice registered sex offenders
must sign, the prohibition against using any Internet social
network Web site, as specified, when the offender is on
probation or parole.
2)Mandates that the registering law enforcement agency forward
all electronic mail (e-mail) addresses or Internet identifiers
to the Department of Justice (DOJ) within three days of
receipt.
3)Authorizes the DOJ to release the e-mail addresses of all
registered sex offenders to social networking Web sites and
allows those Web sites, as specified, to conduct searches of
sex offenders' e-mail addresses and purge any prohibited users
from their Web sites. Provided however, the social networking
Web sites share all lists of purged e-mail addresses with the
DOJ, who may then report non-compliant registrants to the
appropriate authorities.
4)Provides that the misdemeanor penalty for a for an offender on
probation or parole, as specified, to use any "Internet social
networking Web site" is up to six months in the county jail
and/or a fine of not more than $1,000.
5)Defines "Internet social networking Web site" as any Internet
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Web site that does all of the following:
a) Allows users through the creation of web pages or
profiles or by other means to provide information about
themselves that is available to the public or to other
users;
b) Offers a mechanism for communication with other users
where such users are likely to include a substantial number
of minors, and;
c) Has as its primary purpose the facilitation of online
social interactions.
6)States that any person on probation or parole, as specified,
who is prohibited from accessing an Internet social networking
Web site and who seeks an exception to the prohibition to use
an Internet social networking Web site for legitimate
professional purposes may apply for an exception through the
appropriate parole or probation supervising agency when that
person is on parole or probation. Approval shall be valid for
one year unless revoked by the supervising agency with notice
to the person required to register. The person may apply to
renew the exception annually.
EXISTING LAW :
1)Requires persons convicted of specified sex offenses to
register, or reregister if the person has been previously
registered, upon release from incarceration, placement,
commitment, or release on probation. States that the
registration shall consist of all of the following [Penal Code
Section 290.015(a)]:
a) A statement signed in writing by the person, giving
information as shall be required by the Department of
Justice (DOJ) and giving the name and address of the
person's employer, and the address of the person's place of
employment, if different from the employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
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registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
2)States every person who is required to register, as specified,
who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
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physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
or she does not need to report the new place or places
until the next required re-registration. [Penal Code
Section 290.011(a) to (d).]
3)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. [Penal Code Section 290.018(a)(b).]
4)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. [Penal Code Section 290.015(b).]
5)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
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the state prison for 16 months, 2 or 3 years. [Penal Code
Section 290.018(a)(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Increasingly,
sex offenders are using social networking Internet websites to
troll for victims. A 12 year old in Anaheim, California was
lured into a hotel where she was sexually assaulted by a
33-year old man she met on MySpace.com. A 14-year old in
Pomona, CA was sodomized by a 47-year old man he met on-line.
Over 80 children between ages 11 and 17 were manipulated into
sending nude photos to a 32-year old man in Riverside, CA. As
the Internet becomes today's playground, social networking
websites are increasingly being utilized by children and
youth. There must be clear restrictions on sex offenders'
access to these websites to protect our children on-line. The
Child Cyber Safety Act of 2010 prohibits registered sex
offenders from using social networking Internet sites.
"Today, 1 in 5 children have been sexually solicited on-line.
Only 25 percent of those children ever told their parents
(David Finkelhar, 2002, Online victimization). Just since
2007, the number of users on social networking sites like
MySpace, Facebook and Bebo has doubled. An estimated 750,000
children between the ages of 8 and 12 use social networking
websites, despite many of these sites prohibiting child users
(Pew Research Center, 20009, Social Media and Mobile Internet
Use among Teens and Young Adults). Many millions more
teenagers use social networking websites as one of their
primary mechanisms for social interactions with other
teenagers or adults. Nearly 80 percent of teen users report
that they are not careful about giving out personal
information online (Pew Internet and American Life, 2005,
Protecting Teens On-line).
"According to the National Criminal Intelligence Service,
internet pedophiles are becoming increasingly adept at using
the Internet to mask their identity and using technology to
assist in their search for victims.
"As the law stands now, the perpetrator who assaulted the
12-year old in Anaheim could serve a prison sentence, be
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released back to the public and log back on to MySpace.com
without penalty. Even if a parent learned about this criminal
suing a social networking site again, law enforcement would
not be able to do a thing to stop his activities.
2)First Amendment and a Chilling Effect on Free Speech : The
First Amendment to the United States Constitution guarantees
to all citizens the right to freedom of speech and
association. The pertinent Clause of the First Amendment,
applied to the States through the Fourteenth amendment.
[Thornhill v. Alabama, 310 U.S. 88, 95 (1940) provides that
"Congress shall make no law?abridging the freedom of speech .
. . ." [United States Constitution. Amend. I).] Generally,
sex offenders who have completed their terms of imprisonment
and completed parole have all of the other rights and benefits
accorded to all citizens.
In Reno v. ACLU (hereinafter Reno) (1997) 521 U.S. 844, the
Supreme Court stated that "The Internet is an international
network of interconnected computers . . . enab[ling] tens of
millions of people to communicate with one another and to
access vast amounts of information from around the world. The
Internet is a unique and wholly new medium of worldwide human
communication." (Id. at 850.)
"Anyone with access to the Internet may take advantage of a wide
variety of communication and information retrieval methods.
These methods are constantly evolving and difficult to
categorize precisely. [A]ll of these methods can be used to
transmit text; most can transmit sound, pictures and moving
video images. Taken together, these tools constitute a unique
medium - known to its members as cyberspace - located in no
particular geographical location but available to anyone,
anywhere in the world, with access to the Internet."
Following its expansive discussion of the many benefits of the
Internet, the Court turned its attention to First Amendment
issues, finding that the "CDA [Communications Decency Act] is
a content-based regulation of speech. The vagueness of such a
regulation raises special First Amendment concerns because of
its obvious chilling effect on free speech," citing Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1048-1051 (1991). The
Court further stated that the CDA, as a criminal statute, "may
well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images." As a
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practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague
regulations, poses greater First Amendment concerns than those
implicated by the civil regulations reviewed in Denver Area
Educational Telecommunications Consortium, Inc. v. F.C.C., 518
U.S. 727 (1996).
"Given the vague contours of the statute, it unquestionably
silences some speakers whose messages would be entitled to
constitutional protection. The CDA's burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. We are persuaded that the CDA
lacks the precision that the First Amendment requires when a
statute regulates the content of speech. In order to deny
minors access to potentially harmful speech, the CDA
effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted
to serve." (Id. at 874.)
The Court further held that the Government may not reduce the
adult population to only what is fit for children.
"Regardless of the strength of the government's interest in
protecting children, the level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a
sandbox," citing Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 74-75 (1983).
The Court concluded, "As a matter of constitutional tradition,
in the absence of evidence to the contrary, we presume that
governmental regulation of the content of speech is more
likely to interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of
expression in a democratic society outweighs any theoretical
but unproven benefit of censorship." (Id at page 885.)
The United States Supreme Court reaffirmed the principles
recited by Reno v. ACLU, supra, in Ashcroft v. ACLU, 542 U.S.
656 (2004), when it stated, "The purpose [of the strict
scrutiny test] is to ensure that speech is restricted no
further than necessary to achieve the goal, for it is
important to assure that legitimate speech is not chilled or
punished. For that reason, the test does not begin with the
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status quo of existing regulations, then ask whether the
challenged restriction has some additional ability to achieve
Congress' legitimate interest. Any restriction on speech
could be justified under that analysis. Instead, the court
should ask whether the challenged regulation is the least
restrictive means among available, effective alternatives."
(Id.)
In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002),
the Supreme Court further stated that "the mere tendency of
speech to encourage unlawful acts is not a sufficient reason
for banning it. The government 'cannot constitutionally
premise legislation on the desirability of controlling a
person's private thoughts,' citing Stanley v. Georgia, 394
U.S. 557, 566 (1969.) First amendment freedoms are most in
danger when the government seeks to control thought or to
justify its laws for that impermissible end. The right to
think is the beginning of freedom, and speech must be
protected from the government because speech is the beginning
of thought.
"[T]he government may not prohibit speech because it increases
the chances that an unlawful act will be committed at some
indefinite future time," Ashcroft v. The Free Speech
Coalition , supra, at 253, citing Hess v. Indiana, 414 U.S.
105, 108 (1973). "[T]he government has shown no more than a
remote connection between speech that might encourage thoughts
or impulses and any resulting child abuse. Without a
significantly stronger, more direct connection, the Government
may not prohibit speech on the ground that it may encourage
pedophiles to engage in illegal conduct." (Ashcroft, supra,
at 253 - 254.) Is it possible that requiring an offender to
register his or her e-mail or IM identity will create a
chilling effect on his or her on-line communication?
3)Sex Offense Registration : Existing law specifies that if a
person has been convicted of a sexually based offense, he or
she is required to register as a sex offender. [Penal Code
Section 290(c) (includes all offenses where registration is
required if committed on or after July 1, 1944).] The purpose
of sex offender registration is to provide law enforcement
with a list of offenders who may be likely suspects in the
event of another sex offense.
"The purpose of [Penal Code Section 290] is to assure that
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persons convicted of the crimes enumerated therein shall be
readily available for police surveillance at all times because
the Legislature deemed them likely to commit similar offenses
in the future. The statute is thus regulatory in nature,
intended to accomplish the government's objective by mandating
certain affirmative acts." [In re Leon Casey Alva (2004) 33
Cal. 4th 254, 264.] Unlike other states, California requires
lifetime registration for all listed sex offenses. [Penal
Code Section 290(b).]
The registration statute does not distinguish crimes based on
severity and instead requires all persons convicted of a
listed crime must register annually within five days of his or
her birthday and for the rest of his or her life. [Penal Code
Section 290.012(a).] Although most registerable offenses are
felonies, there some alternate felony/misdemeanor penalties
and a few straight misdemeanors. [See Penal Code Section
243.4 (sexual battery); Penal Code Section 266c (obtaining
sexual consent by fraud); Penal Code Section 311.1, 311.2(c),
311.4, 311.11 (child pornography); Penal Code Section 647.6
(annoying or molesting a child); and, Penal Code Section
314(1)(2) (indecent exposure).]
4)Limits for Persons on Probation or Parole : Several states
have placed Internet restrictions or prohibitions on sex
offenders on probation or parole. Although such restrictions
must have a clear nexus or be reasonably related to the
offense, Internet restrictions for probationers and parolees
have withstood constitutional attack. [See U.S. vs.
Thielemann (3rd Cir. 2009) 575 F.3rd 265; U.S. vs. Paul (5th
Cir. 2001) 274 F. 3rd 155; U.S. vs. Granger (4th Cir. 2004)
117 F. App 247.]
California law has long held that probationers and parolees have
fewer constitutional rights than ordinary people, although
conditions of probation or parole must be "reasonable since
parolees and probationers retain constitutional protections
against arbitrary and oppressive official action." [In re
Ramon Stevens (2004) 119 Cal.App.4th 1228, 1233; Morrissey vs.
Brewer (1972) 408 U.S. 471, 477.] The Ninth Circuit in U.S.
vs. Reardon affirmed the imposition of a probation condition
prohibiting the defendant from possessing or using a computer
with access to any online service without prior approval of
the probation officer finding that the restriction was
reasonably related to the offense of shipping child
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pornography across state lines. [U.S. vs. Rearden (9th Cir.
2003) 349 F.3rd 608.]
However, the California Court of Appeals rejected an Internet
ban on a paroled child molester because the restriction was
not so narrowly tailored as to avoid suppression of protected
speech.
The Court held, "Here, BPT [Board of Prison Terms, now Board of
Parole Hearings] was legitimately concerned that a released
child molester's unfettered access to a computer might result
in criminal conduct. In contrast to cases such as Crandon,
Paul and Rearden, the broad prohibition on use of the computer
and Internet bore no relation to Stevens's conviction for
child molestation and imposed a greater restriction of his
rights than was reasonably necessary to accomplish the state's
legitimate goal.
"BPT, concerned about Stevens's illegitimate use of the
Internet, sought to prevent his having any access to
cyberspace. One can understand the dilemma BPT faced.
[C]yberspace defies boundaries; it offers unlimited access.
'[T]he openness of this architecture means this: That there
is no "natural" or simple or "automatic" way to keep people
out because there are no natural or real borders that close
off access to those who should not have access.' [internal
citation omitted.]
"But BPT's task was less daunting than it appeared to be. A
focused restriction could be enforced by unannounced
inspections of material stored on Stevens's hard drive or his
removable disks [internal citation omitted]. BPT might also
have explored the implementation of monitoring software which
automatically generates an e-mail to the parole officer should
the parolee engage in an illegal use of his computer. [See,
e.g., McKay, Guardrails on the Information Superhighway:
Supervising Computer Use of the Adjudicated Sex Offender
(2003) 106 W.Va. L. Rev. 203, 242.] Finally, BPT can verify
Stevens's Internet usage with a sting
operation-surreptitiously inviting him to respond to
government-placed Internet ads for pornography [internal
citation omitted].
"BPT cannot, of course, monitor every aspect of Stevens's
behavior. Other than a prohibition on his use of a computer
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to access pornographic sites, BPT would most likely be unable
to monitor Stevens's use of someone else's computer. But like
any other parolee, Stevens's unauthorized use of any computer
would be at his own peril.
"As observed by Sir William S. Gilbert, 'a felon's capacity for
innocent enjoyment is just as great as any honest man's.'
(Gilbert & Sullivan, Pirates of Penzance (1880) act II.)
Rehabilitation of a felon entails integration into society
where he or she can be self-supporting. In appropriate cases,
access to the Internet assists parolees to become law-abiding
citizens." [In re Stevens (2004) 119 Cal.App.4th 1228, 1239.]
5)Dissemination of Information to Social Networking Sites : This
bill requires that lists of sex offender e-mail addresses may
be provided to "Internet social networking Web sites"
presuming those entities notify DOJ of any sex offenders still
on a social network site. This creates serious concerns. As
noted above, the purpose of sex offender registration is to
provide law enforcement with a necessary tool for
investigating other sex offenses. This bill additionally
requires that all registered sex offenders in the California
must provide e-mail addresses as part of their annual
registration. DOJ is then responsible for disseminating that
information to any social networking site that requests the
information as long as they agree to report any offenders on
the site. This bill does not include e-mail addresses on the
public Web site; DOJ is required to disseminate otherwise
inaccessible information to private for profit corporations.
Government agencies should not be disseminating private
information to corporations and corporations should not be
policing the actions of registered sex offenders. Violation
of registration should be investigated where appropriate by
the designated law enforcement agency. Corporations are not
subject to constitutional standards of investigation and chain
of custody requirements. Nor are corporations qualified to
decide what is covered by the statute and what is not.
Furthermore, Penal Code Section 290.46(l)(2) prohibits using
publicly available sex offender registration information from
being used to discriminate against sex offenders in following
cases: health insurance, general insurance, loans, credit,
employment, education, scholarships or fellowships, housing or
accommodations and benefits, privileges, or services provided
by any business establishment. [Penal Code Section
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290.46(l)(2)(A) to (H).] Although this bill does not include
e-mail addresses or Internet identifiers on the "Megan's Law"
database, this bill does specify that DOJ is authorized to
disseminate this information to specified Internet entities.
It is possible the courts will interpret that as public
disclosure of information. If an offender is precluded from a
business-related Web site because he or she is a registered
sex offender, he or she may bring a claim for discrimination.
6)Issues of Immunity : This bill does not provide any civil or
criminal immunity for a social networking site that receives a
list of e-mail addresses and fails to identify an offender on
its site. If subsequent criminal action occurs, the social
networking site may be liable for damages for failure to
properly check the site.
Congress passed the Communications Decency Act (CDA) in 1996 to
address the myriad problems surrounding the regulation of
obscene, illegal, or otherwise tortious content found on the
Internet. [47 U.S.C. 223 (Supp. 2001).] Many of the CDA's
provisions regulating decency have been struck down by the
courts as violations of the First Amendment. [See Reno v.
ACLU (1996) 521 U.S. 844 (holding portions of the CDA
unconstitutional for its overbroad limitations on protected
speech).] One of the surviving elements is a congressional
grant of immunity from suit to ISPs and other interactive
computer services for content originating with third parties.
[47 U.S.C. 230 (Supp. 2001).]
The effect of these rulings has been the emergence of a
comprehensive immunity from suit for Internet service
providers (ISPs) so long as the suits are based on content not
authored by the ISP. Whether or not Congress intended this
result, ISPs and other interactive computer services have used
Section 230 as a complete defense against recent suits brought
by parents upset by child pornography marketed in ISP chat
rooms. [See Doe v. Am. Online, Inc. (Fla. S. Ct. 2001) 783
So. 2d 1010); copyright owners against eBay for facilitating
sales of infringing recordings (See Stoner v. EBay (Cal.
Super. Ct. Nov. 7, 2000) No. 305666, 2000 Extra LEXIS 156);
and taxpayers protesting the accessibility of pornography on
public library computer terminals (see Kathleen R. v. City of
Livermore (Cal. Ct. App. 2001) 87 Cal. App. 4th 684; See also
Doe v. America Online, Inc. (Fla. S. Ct. 2001) 783 So.2nd
1010.]
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Federal statutes and case law grant civil immunity to ISPs but
it is not clear that such immunity is granted to social
networking Web sites for third party conduct. It is also
unclear whether such immunity will be, or even should be,
granted to social networking sites who accept the affirmative
duty of searching hundreds of thousands of members to ensure
no registered sex offenders are participating. This may take
some time given that several e-mail addresses are similar or
exactly the same. For instance, johnkwilliams@gmail.com may
be a registered sex offender and may also be a University of
California, Berkeley chemistry student. Will they both be
removed? Neither? How else will social networking sites
determine who is who? If, for example, Facebook removes the
wrong John K. Williams, are they liable for any subsequent
related criminal activity?
7)Other States : Several other states and the Federal Government
have enacted legislation aimed at regulating sex offender use
of the Internet or social networking sites. New York, in
particular, enacted requirements that a registered sex
offender provide the names of any Internet accounts or screen
names used by the offender. [NYC CLS Correc. Section
168-a(1)(b).] New York also required the relevant state
agency to provide any authorized Internet entity with a list
of Internet identifiers for all registered sex offenders.
Internet entities may prescreen a new member or remove any
existing members who are registered as sex offenders. [NYC
CLS Correc. Section 168-b(A).] New York also creates a
mandatory condition of probation for a sex offender who
commits an offense against a person under the age of 18 and
designated a "level three" sex offender (meaning a high risk
of re-offense). [NYC CLS Correc. Section 65.10(4a); See also
NYC CLS Correc. 168-l(c).]
Florida, Nevada and New Jersey restricted Internet access only
for persons on probation or parole. Nevada states that "if a
defendant is convicted of a sexual offense and the court
grants probation or suspends the sentence, the court shall . .
. order as a condition of probation or suspension of sentence
that the defendant . . . not possess any electronic device
capable of accessing the Internet and not access the Internet
through any such device or any other means, unless possession
of such device or access is approved by the parole and
probation officer assigned to the defendant". [Nev. Rev.
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Stat. Ann. Section 176A.410(1)(g); See also Brant, Comment:
Sentencing "Cyber Sex Offenders": Individual Offenders
Require Individualized Conditions When Courts Restrict Their
Computer Use and Internet Access (hereinafter Brant), 58 Cath.
U.L. Rev. 779, 796.]
Florida law provides that a court must impose a prohibition on
accessing the Internet or other computer services until the
offender's sex offender treatment program, after a risk
assessment is completed, approves and implements a safety plan
for the offender's accessing or using the Internet or other
computer services. [FLA. Stat. Ann. Section 948.30(1)(h).]
New Jersey's sex offender registration law states, "A person
required to register under this act shall provide the
appropriate law enforcement agency with information as to
whether the person has routine access to or use of a computer
or any other device with Internet capability. A person who
fails to notify the appropriate law enforcement agency of such
information or of a change in the person's access to or use of
a computer or other device with Internet capability or who
provides false information concerning the person's access to
or use of a computer or any other device with Internet
capability is guilty of a crime of the fourth degree." [NJ
Stat. Ann. Section 2C: 7-2(d)(2); Brant at 796.]
Federal law requires all sex offenders to provide Internet
identifiers, such as e-mail addresses and designations to the
National Sex Offender Registry. (42 U.S.C. 16915a.) "While
the federal laws that require information sharing and
reporting by Web site operators do not affect offenders as
severely as those state laws that entirely prohibit computer
or Internet access, all of these laws undoubtedly demonstrate
an ever-increasing trend by federal and state legislatures in
tightening the rope on convicted sex offenders." (Brant at
796.)
"However, if the new laws interfere with a judge's discretion to
evaluate release conditions, the question becomes whether a
legislature should set mandatory conditions for offenders, or
whether courts should be free to make case-by-case
determinations based upon the totality of the circumstances."
(Brant at 798.)
This statute appears to be, at least in part, modeled on the New
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York statute passed last year. The New York American Civil
Liberties Union (ACLU) published a legislative memorandum
strongly questioning by constitutional validity and the policy
of the New York statute. The NY ACLU stated:
"The sponsor's memorandum accompanying the e-STOP legislation
speaks of a grave security risk posed by predators who utilize
the internet to perpetrate sex crimes. This assertion is
dubious; recent analyses indicate the alleged problem is
greatly exaggerated. Those concerned the internet is
facilitating the commission of sex crimes often cite a study
by the Crimes Against Children Research Center, which found
that one in seven children had received sexual solicitations
while on-line. According to the author of the report,
however, many of these propositions were 'coming from other
kids, or just people who are acting weird on line.'
"A highly regarded 'Frontline' documentary produced by the
Public Broadcasting System reached a similar conclusion. The
PBS investigation focused on teenagers, 90 percent of whom
used the internet daily - including Facebook, MySpace and
other social networking sites. The producers of the
documentary observed that:
" 'One of the biggest surprises in making this film was the
discovery that the threat of online predators is misunderstood
and overblown. The data shows that giving out personal
information over the Internet makes absolutely no difference
when it comes to a child's vulnerability to predation . . . .
Most importantly, all the kids we met, without exception, told
us the same thing: They would never dream of meeting someone
in person they'd met online.'
"As for children under the age of twelve who are the victims of
child abuse, the perpetrator in more than 90 percent of such
crimes is a family member or a known friend of the family.
Kidnapping or sexual abuse of a child by a stranger is an
extremely rare occurrence. These findings and observations
are consistent with the results of on-line sting operations,
including sweeps of networking sites. Aggressive policing of
the internet has uncovered few instances of registered
offenders engaged in criminal conduct.
"Recidivism rates among registered sex offenders offer further
evidence that the risk of harm posed by registered offenders
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is greatly overstated. Following release from state prison,
sex offenders are rarely subject to arrest or conviction for
another sex offense. A recent study by New York's Division of
Probation and Correctional Alternatives found that of 19,827
offenders registered as of March 31, 2005, the re-arrest rate
for a new sex crime within one year from the date of first
registration was 2 percent; re-arrest within two years was 3
percent; within five years, 6 percent; and within eight years,
8 percent.
"The proposed regulatory scheme is flawed by vagueness and
overbreadth. When government acts to restrict speech based on
the identity of the speaker or the content of his speech, such
restrictions must be narrowly tailored in furtherance of a
compelling government interest. Courts have recognized that a
greater degree of deference may be granted to restrictions
upon conditions of probation; however these restrictions must
not undermine constitutional rights in ways unrelated to
rehabilitation. There is no question that the state has a
compelling interest in preventing sex crimes against minors.
However, e-STOP is not tailored to restrict only - or even
primarily - speech that may be related to the commission of
such crimes. The bill's stated objective is to prevent former
offenders from communicating with minors through social
networking sites.
"But a tremendous amount of communication takes places between
adults on social networking sites. Many people visit MySpace,
for example, to engage in political speech or advocacy, or to
learn about music performances. However the proposed e-STOP
law would subject to criminal suspicion and prosecution former
offenders engaged in lawful speech that is directed to an
adult audience, without any intent that the speech reach
minors. The law would also make criminal the mere act of
viewing the MySpace web site, even if done with the intent to
learn about social or political events. As a consequence the
proposed regulatory scheme fails to pass constitutional
muster."
[.]
Although other states and the Federal Government may have
enacted Internet restrictions on sex offenders, California and
Missouri are the only states that require lifetime
registration for all registerable sex offenders with virtually
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no opportunity for removal. [NIC/WCL Project on Addressing
Prison Rape under NIC Cooperative Agreement; American
University, Washington College of Law, August 2009; see
Missouri Law V.A.M.S. 589.400(3) ("Registration is a
lifetime requirement unless the offender has been pardoned or
the conviction has been reversed, set aside or vacated.").]
California provides for removal only where an offender can
show consensual adult activity that resulted in a conviction
for sodomy or oral copulation prior to January 1, 1976 or
where the offender is granted a certificate of rehabilitation
for offenses not explicitly registerable. [Penal Code Section
290.019(a); Penal Code Section 290.5.]
8)Luring Statutes : Existing law punishes contact with a minor
with the intent to commit a specified sex offense. Every
person who contacts or communicates with a minor, or attempts
to contact or communicate with a minor, who knows, or
reasonably should know, that the person is a minor with the
intent to commit a kidnapping, willful injury to a child,
sodomy, lewd and lascivious conduct, use of a minor in harmful
matter, as specified, or certain pornography-related offenses
is punished as if the offender attempted to commit the
specified sexual offense. For instance, if the offender
contacted the minor with the intent to commit lewd and
lascivious conduct, as specified, he or she may be punished by
18 months, 3 or 4 years in prison. [Penal Code Section
288.3(a).]
Additionally, Penal Code Section 288.4(a) states, "Any person
who, motivated by an unnatural or abnormal sexual interest in
children, arranges a meeting with a minor or a person he or
she believes to be a minor for the purpose of exposing his or
her genitals or pubic or rectal area, having the child expose
his or her genitals or pubic or rectal area or engaging in
lewd or lascivious behavior, shall be punished by up to one
year in the county jail or by fine of up to $5,000 or both
imprisonment and fine". If that person arranges to meet a
minor and goes to that meeting place, he or she shall be
punished by a term of two, three, or four years in state
prison. [Penal Code Section 288.4(b).] As noted above, these
statutes punish contact with a minor and do not require a
completed act. Hence, any person who attempts to use the
computer to lure a person under the age of 18 into a sex act
is already guilty of a crime.
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9)Penalties for Failure to Register : Existing law states any
person who is required to register as a sex offender based on
a misdemeanor conviction or juvenile adjudication that
willfully violates any requirement of registration is guilty
of misdemeanor punishable by up to one year in the county
jail. [Penal Code Section 290.018(a).] If registration is
based on a conviction for a felony and a person violates any
requirement of registration, he or she is guilty of a felony
and shall be sentenced to state prison for a term of 16
months, two or three years, except as otherwise specified.
[Penal Code Section 290.018(b).] Although this bill creates a
misdemeanor for any person to use an "Internet social
networking Web site", this bill also expands the current
registration requirement to include all e-mail addresses or
Internet identifiers.
If an offender gets a new e-mail address or changes an existing
e-mail address, he or she is required to notify the
appropriate local law enforcement agency within five days.
Failure to do so will be considered a violation of
registration requirements. As noted above, when the
conviction requiring registration is a felony, he or she will
be exposed to a state prison sentence for failure to provide
any change of e-mail address. This also includes any change
to a business-related e-mail address. This seem an
unreasonable burden on a person who is no longer on probation
or parole and who may have been crime-free for years to
repetitively visit local law enforcement every time he or she
changes an e-mail address or gets a new e-mail address. If
the person fails to continually provide this information, he
or she is guilty of a crime, and in some cases, may be
punished with imprisonment in the state prison. As will be
explained below, placing an increasing number of penalties on
persons who are required to register may put the entire
registration scheme in constitutional jeopardy.
10)Constitutionality of Sex Offender Registration : Both the
California and the United States Supreme Court have ruled
that, generally, sex offender registration laws do not run
afoul of constitutional prohibitions against ex post facto,
double jeopardy and cruel and unusual punishment. [In re Leon
Casey Alva (2004) 33 Cal. 4th 254; Smith vs. Doe (2003) 538
U.S. 84.] In making such a finding, both courts applied the
Mendoza-Martinez test which outlines several guiding factors
in determining whether a law is punitive. The factors include
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whether the "regulatory scheme" has been regarded in history
and tradition as punitive, imposes an affirmative disability
or restraint, promotes the traditional aims of punishment, has
a rational connection to a non-punitive purpose, or is
excessive with respect to its purpose. The state may not make
publicity and stigma an integral part of the objective of such
regulation. [Kennedy vs. Mendoza-Martinez (1963) 372 U.S.
144.] Sex offender registration has been viewed as a
non-punitive regulatory scheme because it is designed only to
keep law enforcement and to some extent, the public aware of
dangers.
For the most part, sex offender registration laws have been
remarkably resilient to constitutional challenges. While a
few courts have held that retroactive community-notification
provisions are punitive and thus violate the Ex Post Facto
Clause, the overall legal trend has been to find community
notification regulatory and not punitive in nature. However,
several courts have enjoined community-notification provisions
under the Fourteenth Amendment, holding that states must
provide minimum due-process protections, such as hearings and
a state burden of clear-and-convincing evidence for those
hearings, before infringing upon either state privacy rights
or the right not to be defamed by the government. The courts
generally recognized that the increased burden on the state
was necessitated by the relatively serious liberty interest of
the registrant when compared to the insubstantial value of
community notification to the state. As stated by the Third
Circuit:
"An erroneous underestimation of an individual's dangerousness
will not necessarily result in harm to protected groups . . .
. On the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm to
the offender: his conviction becomes public, he is officially
recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." [E.B. vs. Verniero (1997) 119 F.3rd 1077;
Garfinkle, COMMENT: Coming of Age in America: The
Misapplication of Sex-Offender Registration and Community -
Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163,
202.]
The California Court of Appeals for the Fourth District held
that after the residency restrictions in Jessica's Law passed
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in November of 2006, sex offender registration may no longer a
regulatory scheme but instead a form of punishment. The court
stated:
"We conclude, based on our analysis of the salient
Mendoza-Martinez factors, Jessica's Law's residency
restriction has an overwhelming punitive effect. It
effectuates traditional banishment under a different name,
interferes with the right to use and enjoy real property near
schools and parks, and subjects housing choices to government
approval like parole or probation. It affirmatively restrains
the right to choose a home and limits the right to live with
one's family. It deters recidivism and comes close to
imposing retribution on offenders. While it has a
non-punitive of protecting children, it is excessive with
regard to that purpose. It would oust a person never
convicted of any offense against a child from his family home
near a school or park, forcing him to leave his family or
consigning the family to perpetually threatened transience.
Relocation would be limited to the few outskirts of town
lacking a school or park. Yet the residency restriction would
allow a convicted child molester to stroll past the school,
eat ice cream in the park, and live next door to small
children-as long as he retreats at night to housing far from a
school or park. Building exclusion zones around all schools
and parks for all registered sex offenders is excessively
punitive.
"The severe punitive effect of Jessica's Law's residency
requirement clearly outweighs the proclaimed lack of
regulatory, non-punitive intent. [See Smith, supra, 538 U.S.
at p. 92 ('clearest proof' of punitive effect outweighs lack
of punitive intent).] We are not the first jurists to
recognize the overwhelming punitive effect of a residency
restriction. [See State v. Pollard, supra, 886 N.E.2d at p.
74 (residency restriction is punitive); Mikaloff, supra, 2007
WL 2572268 at pp. 9-10 (same); Leroy, supra, 828 N.E.2d at p.
793 (dis. opn. of Kuehn, J.) (same); Miller, supra, 405 F.3d
at p. 726 (conc. & dis. opn. of Melloy, J.) (same).]
"Because the residency restriction is punitive, its imposition
by the court increases the penalty for a nonsexual offense
beyond the prescribed statutory maximum based upon the jury
verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus,
the facts required to impose the residency restriction must be
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found beyond a reasonable doubt by a jury." (Ibid.) [People
vs. Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by
the California Supreme Court].
The lower court did not directly rule on the constitutionality
of Jessica's Law or sex offender registration and the
California Supreme Court has recently held that various
provisions of Jessica's Law were not unconstitutional as
applied to four parolees. [In re E.J et. al. (2010) 47
Cal.4th 1258.] Nevertheless, by placing greater requirements
on a person who is required to register as a sex offender, it
may be more likely seen as punitive by the courts. If the
scheme is designed to gravely disable the offender or is seen
as a way to further punish sex offenders, courts may
re-examine sex offender registration with the attitude that it
is all designed to further the punish the offender and require
it be proven to the jury as an additional penalty. This may
result in some offenders escaping registration.
11)Updates to the Violent Crime Information Network (VCIN) : SB
172 (Alquist), Chapter 579, Statutes of 2007, required the DOJ
to renovate and update the VCIN on or before July 1, 2010.
DOJ is required to correct all software deficiencies affecting
data integrity and include designated fields for all mandated
sex offender data; consolidate and simplify program logic,
thereby increasing system performance and reducing system
maintenance costs; provide all necessary data storage,
processing, and search capabilities; provide law enforcement
agencies with fill Internet access to sex offender data and
photos; and, incorporate a flexible design structure to
readily meet future demands for enhanced system functionality,
including public access to sex offender information on the DOJ
Megan's Law Web site. [Penal Code Section 290.022(1) to (5).]
Requiring the DOJ to expand the database to include e-mail
addresses will increase the workload to update the VCIN which
must be updated by July 2010.
According to information provided by DOJ, "The DOJ is
statutorily mandated to renovate the Violent Crime Information
Network (VCIN) by July 2010. The DOJ's development vendor is
contractually obligated to: analyze system requirements,
design, code, test and implement the new system. Creation of
the California Sex and Arson Registry (CSAR) has been underway
for most of last year and continues today. As such, the
requirements for the system must now be static, as coding is
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being performed, to meet the statutorily mandated July 2010
implementation date and also, to stay within the budget
appropriated several fiscal years ago. Any proposed CSAR
requirement changes or enhanced features/functionality sought
today will derail the implementation schedule resulting in
significant, unfunded costs to the State, the inability of the
DOJ to meet the statutorily mandated implementation date or
legal liability associated to a contractual dispute. So,
starting last year the DOJ began asking for a January 1, 2012
implementation date for any legislation that imposes
registration or functionality changes to the State's sex or
arson offender registry. This date will allow the CSAR to be
stabilized before any major enhancements are initiated."
12)Law Enforcement and DOJ Resources : Assume that a sex
offender registrant changes e-mail addresses frequently, or
uses a number of different e-mail addresses, each for a
different purpose. All of the e-mail addresses, and all of
the changes, are required to be reported to the registering
law enforcement agency, which is then required to transmit
this information to DOJ. In a state such as California (which
has the largest number of registered sex offenders in the
country), the work involved in merely processing this
information would be considerable.
Do municipalities with large numbers of registered sex offenders
have the personnel and capacity to obtain, process, and
transmit all of this data? Because of life-time registration,
some registrant's may have been crime-free for many years;
moreover, their initial crime requiring registration may have
been nothing related to child sexual abuse. Is receipt and
processing of all of this information regarding computer
identifications a wise use of limited resources? Does this
bill require the sex offenders to notify law enforcement that
they are no longer using the previously registered e-mail
addresses and instant messaging (IM) identities or in
instances in which sex offender registrants have ceased using
Internet resources? Without such a requirement, law
enforcement will be burdened with countless pieces of outdated
and useless information. Moreover, for persons who are no
longer on probation or parole, this bill authorizes DOJ to
decide if an exception is granted. There are no
specifications in the bill for a proper hearing or opportunity
to appeal. It is possible that DOJ and the Administrative Law
Office would have to establish a formal procedure for
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requesting an exception and outline available remedies if such
an exception is denied by the agency.
13)Recommendations of the Sex Offender Management Board Report :
AB 1015 (Chu), Chapter 338, Statutes of 2005, created the Sex
Offender Management Board (SMOB). According to the author of
AB 1015:
"The SOMB created under this bill will be tasked with an
assessment of California's current management practices for
adult sex offenders residing in California communities and of
best practices around the nation. Based on their findings,
SOMB will make recommendations to improve California's
management of sex offenders, with the goal of improving
community safety."
"Sex offenders in California are currently managed through a
complex system involving multiple state and local departments.
Yet, there is no centralized infrastructure that coordinates
communication, research or decision-making amongst the various
agencies.
"In California, there are over 100,000 registered sex offenders
living in the community, an estimated 14,000 to 25,000 in
California prisons and an additional unknown number in
California jails. Almost all convicted sex offenders will
eventually return to the community, with a short period of
time under direct supervision, either on parole, probation or
conditional release. It is integral that during this period
of time when sex offenders are under direct supervision, there
is a comprehensive and cohesive network of interventions
available to control the behavior of sex offenders and prevent
recidivism.
"AB 1015 will bring the major participants in the management of
sex offenders together to assess current practices in managing
adult sex offenders under supervision, identify best practices
and make recommendations on how to implement these changes.
Efforts such as the one proposed in this bill has been met
with much success in other states and within California
counties, including San Diego County, Orange County, Colorado,
Oregon, Connecticut and Pennsylvania."
The SOMB released some recommendations in January 2010. The
Report states:
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"Sexual crimes rightly outrage communities. The legacy of
sexual assault in the lives of victims is often profound and
long-lasting. In the aftermath of an assault, communities
often demand with great vehemence that policymakers and public
safety professionals DO SOMETHING. The root of the desire to
acknowledge the serious nature of the crime is difficult to
disparage but, when combined with fear, misinformation and the
heat of media inquiry, the flame of community outrage can
create a political environment that rewards swift action over
more methodical, effective approaches. On occasion, these
swift approaches may address short-term community outrage at
the cost of directing resources and skilled personnel away
from investments in strategies for long-term safety.
"Every child, woman and man in California deserves to be safe
from sexual violence. Even though a known sex offender living
near a park may seem like the most obvious threat, far more
Californians will be sexually victimized in their own homes by
acquaintances or family members. The lack of significant
in-home intervention and prevention resources is symptomatic
of an approach that fundamentally misunderstands the complete
extent and nature of sexual violence. The CASOMB acknowledges
this broader context of sexual victimization, and recognizes
the limitations of our mandate that is focused on already
identified offenders.
"No two sex offenders pose the same level of risk, nor can they
be managed or supervised in identical ways. Laws and policies
that fail to take into account the real differences in risk
that individual offenders might pose will misallocate valuable
resources and misunderstand potential threats. The ultimate
success of California's sex offender management system will
depend on its ability to understand the myriad of ways that
sexual offending occurs and then adjust to intervene and
manage that risk.
"Similarly, policymakers and the public should be suspicious of
any one technology or strategy which promises to solve the
problem of sex offenders. Sexual offending is a complex
problem that will require thoughtful, multifaceted approach to
effectively address, and ultimately, prevent." (California
Sex Offender Management Board, Decrease Victimization;
Increase Community Safety, Recommendations Report, January
2010, pp. 9-11.)
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14)Argument in Support : According to Facebook , "Protecting the
people that use out service, especially many teenagers, has
always been a top priority for Facebook. That is why we have
consistently supported bills that criminalize usage of social
networking sites by RSOs. Facebook devotes significant
resources to developing innovative and complex system to
proactively monitor the site and its users, including those
not on a sex offender registry, for suspicious activity (such
as contacting minors or users of predominately one gender).
We also have established a large team of professional
investigators to evaluate reports of potential abuse,
including those surfaced by our system or from users.
"Additionally, we aggressively enforce a policy prohibiting RSOs
from Facebook and have worked proactively with states'
attorneys general to run their lists of registered sex
offenders against our user base. We welcome the addition of
criminal penalties, as outlined in AB 2208, for those that
violate our policy and we are committed to working with you to
ensure your legislation is enacted. Facebook will continue to
partner with policymakers, law enforcement, parents and
educator to make the Internet safer for everyone."
15)Arguments in Opposition :
a) According to the California Public Defenders
Association , "This proposed legislation would create a new
misdemeanor adding Penal Code Section 290.96 to bar sex
offenders from using any social networking computer sites
and making conforming changes to 290.015. This proposal
wastes money and endangers the public. Evidence based
research recognized by the California Sex Offender
Management Board has shown that the re-integration of sex
offenders into the community is crucial to prevent
re-offense. That means that sex offenders need jobs and
housing in order to maintain stability and rebuild their
lives. If sex offenders are able to find gainful
employment and appropriate housing, they are less likely to
re-offend, thus less likely to endanger the public.
Currently, many people find jobs through social network
sites, i.e. Craig's List. This is even more likely to be
true in the future. To deny sex offenders the opportunity
to find employment is short-sighted, bad public policy and
vindictive.
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"Enforcing a new misdemeanor would entail police, prosecution
and defense resources which the counties do not have to
expend. It is especially ironic to obligate these county
resources under the auspices of protecting children while
budgetary constraints are forcing these counties to cut
children's programs that provide food, health care and
education."
b) According to the American Civil Liberties Union , "This
legislation raises significant free speech concerns by
placing significant and constitutionally impermissible
burdens on the use of the Internet for legitimate and
lawful purposes. It is virtually impossible to list the
wide range of websites this bill seeks to prohibit former
offenders from accessing. It makes it a crime to passively
review or download information from a broad range of
'social networking' sites which includes sites that allow
comments such as newspapers, or site sharing information on
products, music, ect. For example, the bill would bar
posting information regarding political advocacy or musical
events on MySpace-a central information exchange that
provides access to music that may be sampled at no cost
without violating copyright laws. It applies to websites
that enable job searches such as LinkedIn and Monster.com.
Moreover, such websites are constantly evolving; the
proposed definition will inevitably preclude access to
dynamic and evolving internet information hubs.
"There is governmental interest in prohibiting lawful
communication between and among consenting adults even via
a communication medium used by minors. When Congress tried
to enact a similarly broad bar to conveying a particular
type of speech over a medium of expression-the internet
writ large-the Supreme Court unanimously held that such
'unnecessary broad suppression of speech' is barred by the
First Amendment. Courts have repeatedly struck down such
'prophylactic provisions' that seek to proscribe broad
classifications of speech.
"Notwithstanding the constitutional infirmities of this bill,
public policy considerations also argue against such a
broad ban. Keeping former offenders connected to their
communities, families and friends is a critical factor in
preventing recidivism. Reducing opportunities for
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registered sex offenders to use the internet-a primary tool
of learning and communication in the 21st Century-removes
former offenders from social groups and supportive
relationships, which are important in minimizing
recidivism."
16)Related Legislation :
a) AB 179 (Portantino) would have mandated a person
required to register as a sex offender, or a person who is
released as a sexually violent predator, as specified, must
report all e-mail addresses and IM identities at the time
of registration. AB 179 was considerably narrowed to
address costs and was ultimately gutted and amended into a
bill related to corporate taxation laws.
b) AB 1850 (Galgiani) requires a person required to
register as a sex offender to register his or her Internet
accounts and Internet identifiers, defined to include
e-mail addresses and designations used for the purposes of
chatting, IM, social networking, or other similar Internet
communication. AB 1850 was never heard in the Assembly
Committee on Public Safety.
c) SB 1204 (Runner) prohibits a person who is required to
register as a sex offender, as a condition of any parole,
from opening an account on, or otherwise participating in,
a social networking Internet Web site, as defined. The
prohibition would apply to all registrants who are paroled
on or after January 1, 2011 and to all previously
registered parolee 10 days after receiving notice or after
re-registration. SB 1204 is pending hearing by the Senate
Committee on Public Safety.
17)Prior Legislation :
a) AB 841 (Portantino), of the 2007-08 Legislative Session,
would have provided that any time a person required to
register or re-register as a sex offender, as specified, he
or she shall provide all e-mail addresses and IM addresses
that he or she may use or is using. AB 841 was
significantly narrowed in Assembly Appropriations and
ultimately gutted and amended in the Senate into a bill
related to health care.
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b) AB 2681 (Smyth), of the 2007-08 Legislative Session,
would have required specified registered sex offenders to
inform the registering agency whether they have access to a
computer, and adds computer-related conditions of probation
or parole. AB 2681 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs Association
Child Abuse Prevention Center
City and County of San Francisco
Crime Victims United of California
Facebook
Peace Officers Research Association of California
One private citizen
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744