Amended in Senate June 17, 2015

Amended in Senate April 15, 2015

Senate Bill No. 448

Introduced by Senator begin delete Galgiani end delete begin insert Hueso end insert

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(Principal coauthor: Senator Galgiani)

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February 25, 2015

begin delete An act to amend Section 633 of the Penal Code, relating to law enforcement. end delete begin insert An act to amend Sections 290.012, 290.014, and 290.024 of, and to amend and repeal Section 290.015 of, the Penal Code, relating to sex offenders, and declaring the urgency thereof, to take effect immediately. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 448, as amended, begin delete Galgiani end delete   begin insert Hueso end insert . begin delete Law enforcement: communications. end delete begin insert Sex offenders: Internet identifiers. end insert

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Existing law, the Californians Against Sexual Exploitation Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election (CASE Act), requires a person who is subject to the Sex Offender Registration Act to list any and all Internet identifiers established or used by the person and any and all Internet service providers used by the person on his or her sex offender registration. The CASE Act requires a person subject to sex offender registration to send written notice of any addition of, or change to, an Internet identifier or Internet service provider to the law enforcement agency with which he or she is currently registered within 24 hours. Existing case law currently enjoins the application of the above provisions of the CASE Act through the imposition of a preliminary injunction on the grounds that these provisions violate the First Amendment to the United States Constitution. The CASE Act allows its provisions to be amended by a statute in furtherance of its objectives passed in each house of the Legislature by a majority vote of the membership.

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This bill would state the intent of the Legislature to amend the CASE Act to further its purposes. The bill would delete the requirement that a person subject to sex offender registration list on his or her sex offender registration all Internet service providers used by him or her. The bill would require a person subject to sex offender registration to list only those Internet identifiers actually used to participate in online communications, as specified. The bill would require the registrant to send written notice of any addition of, or change to, an Internet identifier to the law enforcement agency with which he or she is currently registered within 5 working days. The bill would authorize a law enforcement agency to which this information has been submitted to make the information available to another law enforcement agency for the sole purpose of preventing or investigating a sex-related crime, a kidnapping, or human trafficking, and would prohibit a law enforcement agency from disclosing this information to the public. The bill would authorize the Attorney General to disclose the information to another person if the Attorney General determines, based on specific, articulable facts, that the disclosure is likely to protect members of the public from sex-related crimes, kidnappings, or human trafficking, and the person to whom the disclosure is made signs an oath, as specified.

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The bill would make other technical, nonsubstantive changes.

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Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

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This bill would make legislative findings to that effect.

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This bill would declare that it is to take effect immediately as an urgency statute.

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Existing law establishes various prohibitions against eavesdropping and recording or intercepting certain communications. Violations of these prohibitions are crimes. Existing law provides that specified law enforcement officers are not prohibited by those provisions from overhearing or recording any communication that they could lawfully overhear or record prior to the enactment of those prohibitions.

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This bill would add uniformed peace officers of the Department of Fish and Wildlife, the Department of Parks and Recreation, the State Department of Developmental Services, and the State Department of State Hospitals, and a special agent of the Attorney General or any district attorney, to the list of law enforcement officers to whom the prohibitions described above do not apply.

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert begin insert

It is the intent of the Legislature to further the
objectives of the Californians Against Sexual Exploitation Act, an
initiative measure enacted by the approval of Proposition 35 at
the November 6, 2012, statewide general election, by amending
its provisions to conform with the requirements of the court in the
case of Doe v. Harris (Case numbers 13-15263 and 13-15267).

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 290.012 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

290.012.  

(a) Beginning on his or her first birthday following
registration or change of address, the person shall be required to
register annually, within five working days of his or her birthday,
to update his or her registration with the entities described in
subdivision (b) of Section 290. At the annual update, the person
shall provide current information as required on the Department
of Justice annual update form, including the information described
in paragraphs (1) to begin delete (5), inclusive end delete begin insert (4), inclusive, end insert of subdivision (a)
of Section 290.015. The registering agency shall give the registrant
a copy of the registration requirements from the Department of
Justice form.

(b) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer,
in a manner established by the Department of Justice. Every person
who, as a sexually violent predator, is required to verify his or her
registration every 90 days, shall be notified wherever he or she
next registers of his or her increased registration obligations. This
notice shall be provided in writing by the registering agency or
agencies. Failure to receive this notice shall be a defense to the
penalties prescribed in subdivision (f) of Section 290.018.

(c) In addition, every person subject to the Act, while living as
a transient in California, shall update his or her registration at least
every 30 days, in accordance with Section 290.011.

(d) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice California Sex and Arson Registry (CSAR).

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begin insert SEC. 3. end insert   

end insert

begin insert Section 290.014 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

290.014.  

(a) If any person who is required to register pursuant
to the Act changes his or her name, the person shall inform, in
person, the law enforcement agency or agencies with which he or
she is currently registered within five working days. The law
enforcement agency or agencies shall forward a copy of this
information to the Department of Justice within three working
days of its receipt.

(b)  begin insert (1) end insert begin insert   end insert If any person who is required to register pursuant to
the Act begin delete adds or changes his or her account with an Internet service
provider or end delete adds or changes an Internet identifier, begin insert as described in
Section 290.024, end insert the person shall send written notice of the addition
or change to the law enforcement agency or agencies with which
he or she is currently registered within begin delete 24 hours. end delete begin delete The law
enforcement agency or agencies shall make this information
available to the Department of end delete begin delete Justice. end delete begin insert five working days. end insert Each
person to whom this begin delete subdivision end delete begin insert paragraph end insert applies at the time
this begin delete subdivision end delete begin insert paragraph end insert becomes effective shall immediately
provide the information required by this begin delete subdivision. end delete begin insert paragraph
within five working days. end insert

begin insert

(2) (A) A law enforcement agency to which an Internet identifier
is submitted pursuant to this subdivision, Section 290.012, or
Section 290.015 shall make the Internet identifier available to the
Department of Justice.

end insert begin insert

(B) A law enforcement agency to which an Internet identifier
is submitted pursuant to this subdivision, Section 290.012, or
Section 290.015 may only release that Internet identifier to another
law enforcement agency for the sole purpose of preventing or
investigating a sex-related crime, a kidnapping, or human
trafficking.

end insert begin insert

(C) Notwithstanding Sections 290.45 and 290.46, a law
enforcement agency shall not disclose an Internet identifier
submitted pursuant to this subdivision, Section 290.012, or Section
290.015 to the public, except that the Attorney General may
disclose an Internet identifier to another person if the Attorney
General has determined, based on specific, articulable facts, that
the disclosure is likely to protect members of the public from
sex-related crimes, kidnappings, or human trafficking, and the
person to whom the disclosure is made signs an oath promising
to use the information only for the identified purpose, to maintain
the confidentiality of the information, and to refrain from disclosing
the information to anyone who has not been granted access to the
information by the Attorney General.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 290.015 of the end insert begin insert Penal Code end insert begin insert , as amended
November 6, 2012, by initiative Proposition 35, Section 12, is
amended to read: end insert

290.015.  

(a) A person who is subject to the Act shall register,
or reregister if he or she has previously registered, upon release
from incarceration, placement, commitment, or release on probation
pursuant to subdivision (b) of Section 290. This section shall not
apply to a person who is incarcerated for less than 30 days if he
or she has registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual update
of registration that is required to occur within five working days
of his or her birthday, pursuant to subdivision (a) of Section
290.012, did not fall within that incarceration period. The
registration shall consist of all of the following:

(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person’s employer, and the
address of the person’s place of employment if that is different
from the employer’s main address.

(2) The fingerprints and a current photograph of the person
taken by the registering official.

(3) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.

(4) A list of any and all Internet identifiers begin delete established or end delete used
by the begin delete person. end delete begin insert person for communicative purposes, as defined in
Section 290.024. end insert

begin delete

(5) A list of any and all Internet service providers used by the
person.

end delete begin delete

(6)

end delete

begin insert ( end insert begin insert 5) end insert  A statement in writing, signed by the person, acknowledging
that the person is required to register and update the information
in begin delete paragraphs (4) and (5), end delete begin insert paragraph (4), end insert as required by this
chapter.

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(7)

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begin insert ( end insert begin insert 6) end insert  Notice to the person that, in addition to the requirements of
the Act, he or she may have a duty to register in any other state
where he or she may relocate.

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(8)

end delete

begin insert ( end insert begin insert 7) end insert  Copies of adequate proof of residence, which shall be limited
to a California driver’s license, California identification card, recent
rent or utility receipt, printed personalized checks or other recent
banking documents showing that person’s name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.

(b) 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
Department of Justice.

(c) (1) If a person fails to register in accordance with subdivision
(a) after release, the district attorney in the jurisdiction where the
person was to be paroled or to be on probation may request that a
warrant be issued for the person’s arrest and shall have the authority
to prosecute that person pursuant to Section 290.018.

(2) If the person was not on parole or probation begin insert or on postrelease
community supervision or mandatory supervision end insert at the time of
release, the district attorney in the following applicable jurisdiction
shall have the authority to prosecute that person pursuant to Section
290.018:

(A) If the person was previously registered, in the jurisdiction
in which the person last registered.

(B) If there is no prior registration, but the person indicated on
the Department of Justice notice of sex offender registration
requirement form where he or she expected to reside, in the
jurisdiction where he or she expected to reside.

(C) If neither subparagraph (A) nor (B) applies, in the
jurisdiction where the offense subjecting the person to registration
pursuant to this Act was committed.

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begin insert SEC. 5. end insert   

end insert

begin insert Section 290.015 of the end insert begin insert Penal Code end insert begin insert , as amended by
Section 17 of Chapter 867 of the Statutes of 2012, is repealed. end insert

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290.015.  

(a) A person who is subject to the Act shall register,
or reregister if he or she has previously registered, upon release
from incarceration, placement, commitment, or release on probation
pursuant to subdivision (b) of Section 290. This section shall not
apply to a person who is incarcerated for less than 30 days if he
or she has registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual update
of registration that is required to occur within five working days
of his or her birthday, pursuant to subdivision (a) of Section
290.012, did not fall within that incarceration period. The
registration shall consist of all of the following:

(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person’s employer, and the
address of the person’s place of employment if that is different
from the employer’s main address.

(2) The fingerprints and a current photograph of the person
taken by the registering official.

(3) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.

(4) Notice to the person that, in addition to the requirements of
the Act, he or she may have a duty to register in any other state
where he or she may relocate.

(5) Copies of adequate proof of residence, which shall be limited
to a California driver’s license, California identification card, recent
rent or utility receipt, printed personalized checks or other recent
banking documents showing that person’s name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.

(b) 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
Department of Justice.

(c) (1) If a person fails to register in accordance with
subdivision (a) after release, the district attorney in the jurisdiction
where the person was to be paroled or to be on probation may
request that a warrant be issued for the person’s arrest and shall
have the authority to prosecute that person pursuant to Section
290.018.

(2) If the person was not on parole or probation or on postrelease
community supervision or mandatory supervision at the time of
release, the district attorney in the following applicable jurisdiction
shall have the authority to prosecute that person pursuant to Section
290.018:

(A) If the person was previously registered, in the jurisdiction
in which the person last registered.

(B) If there is no prior registration, but the person indicated on
the Department of Justice notice of sex offender registration
requirement form where he or she expected to reside, in the
jurisdiction where he or she expected to reside.

(C) If neither subparagraph (A) nor (B) applies, in the
jurisdiction where the offense subjecting the person to registration
pursuant to this Act was committed.

end delete

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 290.024 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

290.024.  

For purposes of this chapter, begin delete the following terms
apply: end delete

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(a) “Internet service provider” means a business, organization,
or other entity providing a computer and communications facility
directly to consumers through which a person may obtain access
to the Internet. An Internet service provider does not include a
business, organization, or other entity that provides only
telecommunications services, cable services, or video services, or
any system operated or services offered by a library or educational
institution.

end delete

begin delete (b) end delete begin delete   end delete “Internet identifier” means an electronic mail address, user
name, screen name, or similar identifier begin insert actually end insert used begin delete for the
purpose of end delete begin insert to participate in online communications, including, but
not limited to, end insert Internet forum discussions, Internet chat room
discussions, begin insert emailing, end insert instant messaging, social networking, or
similar begin delete Internet communication. end delete begin insert methods of communicating online.
For the purpose of this chapter, an “Internet identifier” does not
include Internet passwords, or any electronic mail address, user
name, screen name, or similar identifier used solely to read online
content, or solely for transactions with end insert begin insert a lawful commercial
enterprise or government agency concerning a lawful commercial
or governmental transaction with that enterprise or agency. end insert

begin insert

begin insert SEC. 7. end insert   

end insert begin insert

The Legislature finds and declares that Section 3 of
this act, which amends Section 290.014 of the Penal Code, imposes
a limitation on the public’s right of access to the meetings of public
bodies or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes
the following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:

end insert begin insert

In order to protect the rights afforded by the First Amendment
to the United States Constitution, it is necessary that Internet
identifier information provided to law enforcement agencies by
registrable sex offenders as part of their registration not be made
generally available to the public.

end insert

begin insert

begin insert SEC. 8. end insert   

end insert begin insert

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

end insert begin insert

In order to protect the rights afforded by the First Amendment
to the United States Constitution while furthering the objectives
of the Californians Against Sexual Exploitation Act, an initiative
measure enacted by the approval of Proposition 35 at the
November 6, 2012, statewide general election, at the earliest
possible time, it is necessary that this act take effect immediately.

end insert

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SECTION 1.  

Section 633 of the Penal Code is amended to
read:

633.  

(a) Nothing in Section 631, 632, 632.5, 632.6, or 632.7
prohibits the Attorney General, any district attorney, or any
assistant, deputy, special agent, or investigator of the Attorney
General or any district attorney, any officer of the California
Highway Patrol, any uniformed peace officer of the Department
of Fish and Wildlife, the Department of Parks and Recreation, the
State Department of Developmental Services, or the State
Department of State Hospitals, any chief of police, assistant chief
of police, or police officer of a city or city and county, any sheriff,
undersheriff, or deputy sheriff regularly employed and paid in that
capacity by a county, any police officer of the County of Los
Angeles, or any person acting pursuant to the direction of one of
these law enforcement officers acting within the scope of his or
her authority, from overhearing or recording any communication
that they could lawfully overhear or record prior to the effective
date of this chapter.

(b) Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders
inadmissible any evidence obtained by the above-named persons
by means of overhearing or recording any communication that
they could lawfully overhear or record prior to the effective date
of this chapter.

end delete