BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   March 22, 2011
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                 AB 543 (Torres) - As Introduced:  February 16, 2011


           SUMMARY  :  Makes it a misdemeanor, punishable by up to six months 
          in the county jail and/or a fine of not more than $1,000, for 
          any person who is granted probation or placed on parole for the 
          conviction of a crime that requires him or her to register as a 
          sex offender to use any Internet social networking Web site, as 
          defined, during that period of probation or parole if 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. 
           Specifically,  this bill  :   

          1)Includes in the statement of notice any registered sex 
            offender must sign, the prohibition against using any Internet 
            social network Web site, as specified, when the offender is on 
            probation or placed on parole. 

          2)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.   

          3)Defines "Internet social networking Web site" as any Internet 
            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 








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               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. 

           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 İPenal 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 
               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 








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               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 
               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. 








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             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 includes 
               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.  İPenal 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.  İPenal 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.  İPenal 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 
            the state prison for 16 months, 2 or 3 years.  İPenal 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.  Cases of this sort 
            abound.  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 
            online.  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 








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            online.  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 prohibition 
            on child users (Pew Research Center, 2009. 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 Online). 

          "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 
            released back to the public and log back on to MySpace.com 
            without penalty.  Even if a parent learned about this criminal 
            using a social networking site again, law enforcement would 
            not be able to do a thing to stop his activities.  

          "The increase in use of social networking sites by youth and 
            children has turned the internet into a new playground.  
            Increasingly, sex offenders are using social networking 
            Internet websites to troll for victims.  These types of cases 
            abound.  For example, recently a 12-year-old girl in Anaheim, 
            CA was lured into a hotel where she was sexually assaulted by 
            a 33-year-old man who befriended her on MySpace.com.

          "Under current law registered sex offenders can to troll on 
            social networking sites frequented by children without 
            restriction.  Law enforcement does not have the legal tools to 
            prevent them from socializing with children online.  If a 
            parent becomes aware that a registered sex offender is 
            communicating with their child, the parent's only option is to 
            ask their child to stop communication.  Under current law the 
            very same 33-year-old sex offender who assaulted the child in 
            Anaheim, while on probation or parole could log back on to 








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            MySpace.com without restriction."

           2)First Amendment "Chilling Effect"  :  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.  İThornhill v. Alabama, 310 U.S. 88, 
            95 (1940) provides that "Congress shall make no law?abridging 
            the freedom of speech . . . ."  İUnited States Constitution. 
            Amend. I).]  Generally, sex offenders who have completed their 
            terms of imprisonment and completed parole has 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 . . . enabİling] 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.  İA]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 İCommunications 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 
            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 








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            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 İof 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 
            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 








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            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.

          "İT]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).  "İT]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.)  

           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.  İPenal 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 İPenal Code Section 290] is to assure that 
            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."  İIn re Leon Casey Alva (2004) 33 








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            Cal. 4th 254, 264.]  Unlike other states, California requires 
            lifetime registration for all listed sex offenses.  İPenal 
            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.  İPenal Code 
            Section 290.012(a).]  Although most registerable offenses are 
            felonies, there some alternate felony/misdemeanor penalties 
            and a few straight misdemeanors.  İSee 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 challenge.  İSee 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."  İIn 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 
            pornography across state lines.  İU.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 








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            speech.  

          The Court held, "Here, BPT İBoard 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.  
            İC]yberspace defies boundaries; it offers unlimited access.  
            'İT]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.'  İinternal 
            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 İinternal 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.  İSee, 
            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 İinternal 
            citation omitted]. 

          "BPT cannot, of course, monitor every aspect of Stevens's 
            behavior.  Other than a prohibition on his use of a computer 
            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 








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            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."  İIn re Stevens (2004) 119 Cal.App.4th 1228, 1239.]

           5)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.  İIn 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 
            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.  İKennedy 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:








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          "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."  İE.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 
            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 








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            requirement clearly outweighs the proclaimed lack of 
            regulatory, non-punitive intent.  İSee 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.  İSee 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 
            found beyond a reasonable doubt by a jury."  (Ibid.)  İPeople 
            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.  İIn 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.  

           6)Arguments in Support  :  According to the  Child Abuse Prevention 
            Center  , "AB 543 would make it a misdemeanor for any person 
            granted probation or on parole for conviction of a crime that 
            requires registration as a sex offender to use any internet 
            social networking website, if the victim was under 18 years of 
            age or the internet was used in the commission of a crime.  
            Additionally, it authorizes the person seek an exception to 
            the prohibition for legitimate professional purposes by 
            applying through the appropriate parole or probation 
            supervising agency.  Millions of California children who use 
            the internet everyday are at risk from sexual predators.  The 
            internet has provided an alternative avenue for predators to 
            victimize unsuspecting youth; child predators, in particular, 
            are moving from the playground to the web in their search for 
            unsuspecting children.  In this regard, AB 543 provides 
            assistance in limiting the ability for predators to victimize 
            our children via highly popular social networking channels."








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           7)Arguments in Opposition  :  According to the  California Public 
            Defenders Association  , "This proposed legislation would create 
            a new misdemeanor adding Penal Code Section 290.96 prohibiting 
            persons granted probation or placed on parole for a sexual 
            offense that requires him to register where the victim was 
            under 18 years of age or the Internet was used in the 
            commission of the crime, from accessing an Internet social 
            networking website during the period of probation or parole, 
            and making conforming changes to 290.015.  

          "For the purposes of this section, 'Internet social networking 
            Web site' is defined as an Internet Web site that does all of 
            the following:  (1) Allows users, through the creation of 
            Internet Web pages or profiles or by other means, to provide 
            information about themselves that is available to the public 
            or to other users.  (2) Offers a mechanism for communication 
            with other users where those users are likely to include a 
            substantial number of minors.  (3) Has as its primary purpose 
            the facilitation of online social interactions. (italics 
            added). 

          "This proposed legislation is unnecessary, wastes money and 
            endangers the public.  Evidence based research recognized by 
            the California Sex Offender Management Board shows that 
            reintegration of sex offenders into the community reduces the 
            risk of re-offense.  That means that 290 registrants 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 finds jobs through social network 
            websites; i.e., Craig's List, Facebook or Twitter.  Indeed, 
            facilitating job searches is an advertised focus of social 
            networking sites.  Many companies have Facebook accounts and 
            encourage users to follow their business on Facebook.  This is 
            even more likely to be true in the future.  To deny 290 
            registrants an opportunity to find employment is short sighted 
            and bad public policy.  

          "Further, this legislation is unnecessary as existing law 
            already authorizes the terms and conditions of probation or 
            parole to be tailored to achieve legitimate purposes of 
            rehabilitating a defendant to avoid future criminality.  If 








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            the particulars of the commitment offense make prohibition 
            again internet access appropriate under the circumstances, the 
            mechanism presently exists not only impose such a condition 
            but to enforce compliance through a violation of probation or 
            parole." 

           8)Related Legislation  :  

             a)   AB 653 (Galgiani) requires a person required to register 
               as a sex offender report his or her Internet accounts and 
               Internet identifiers to local law enforcement and defined 
               to include e-mail addresses and designations used for the 
               purposes of chatting, instant messaging, social networking, 
               or other similar Internet communication.  AB 653 is pending 
               hearing by this Committee. 

             b)   AB 755 (Galgiani) requires, inter alia, by July 1, 2012, 
               any person or entity that collects and makes available, in 
               any format, the personal data of California minors, to 
               certify with the Department of Justice a plan to obtain 
               information and implement reasonable policies to restrict 
               or block access to that information by persons required to 
               register pursuant to the Sex Offender Registration Act.  AB 
               755 is pending hearing by this Committee.  

           9)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 Committee 
               and ultimately gutted and amended in the Senate into a bill 
               related to health care. 

             b)   AB 179 (Portantino), of the 2009-10 Legislative Session, 
               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, to 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. 









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                                                                 Page 16

             c)   AB 1850 (Galgiani), of the 2009-10 Legislative Session, 
               prohibits any person sentenced to probation or is released 
               on parole for an offense that requires him or she to 
               register as a sex offender, as specified, from using the 
               Internet under certain circumstances.  AB 1850 is 
               substantially similar to this bill and was held on the 
               Assembly Appropriations Committee's Suspense File. 

             d)   AB 2208 (Torres), of the 2009-10 Legislative Session, is 
               substantially similar to this bill was held on the Assembly 
               Appropriations Committee's Suspense File.  

             e)   SB 1204 (Runner), of the 2009-10 Legislative Session, 
               requires every registered sex offender to inform the law 
               enforcement agency with which he or she last registered of 
               all of his or her online addresses, e-mail addresses, and 
               IM user names by December 31, 2011 and thereafter at the 
               time of original registration and within 30 days of 
               establishing a new online account.  This information, may, 
               upon request, be shared with the DOJ or other law 
               enforcement agencies.  SB 1204 was held on the Assembly 
               Appropriations Committee's Suspense File. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California State Sheriffs' Association
          Child Abuse Prevention Center
           
          Opposition 
           
          American Civil Liberties Union
          California Public Defenders Association 
           

          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916) 
          319-3744