BILL NUMBER: SB 448 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 4, 2016
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN SENATE JUNE 17, 2015
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senator Hueso
(Principal coauthor: Senator Galgiani)
( Coauthors: Senators Hall
and Runner )
( Coauthor: Assembly Member
Mathis )
FEBRUARY 25, 2015
An act to amend Sections 290.012, 290.014, and 290.024
290.024, and 290.45 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.
LEGISLATIVE COUNSEL'S DIGEST
SB 448, as amended, Hueso. Sex offenders: Internet identifiers.
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 (the
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.
This bill would state the intent of the Legislature to amend the
CASE Act to further its objectives. 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 for a crime where the use
of the Internet was essential to the commission of the crime 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 any 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.
The bill would require a person who is
convicted of a felony on or after January 1, 2016, requiring
registration pursuant to the Act, under any one of specified
circumstances, including when the person used the Internet to collect
any private information to identify a victim of the crime to further
the commission of the crime, to register his or her Internet
identifiers, as defined, and to send written notice to the law
enforcement agency or agencies with which he or she is currently
registered when he or she establishes or changes an Internet
identifier within 30 working days of the addition or change, as
specified. The bill would require a law enforcement agency to which
this information has been submitted to make the information available
to the Department of Justice. The bill would require a designated
law enforcement entity to only use an Internet identifier submitted
pursuant to these provisions, or to release that Internet
identifier to another law enforcement entity, for the purpose of
investigating a sex-related crime, a kidnapping, or human
trafficking. The bill would prohibit a designated law enforc
ement entity from disclosing or authorizing persons or entities
to disclose an Internet identifier submitted pursuant to these
provisions to the public or other persons, except as required by
court order.
The bill would make other technical, nonsubstantive changes.
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.
This bill would make legislative findings to that effect.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: no. State-mandated
local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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).
SEC. 2. Section 290.012 of the Penal Code is amended to read:
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 (4), inclusive, 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).
SEC. 3. Section 290.014 of the Penal Code is amended to read:
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) (1) If any person who is required to register pursuant to the
Act for a crime where the use of the Internet was essential to the
commission of the crime adds or changes an Internet identifier, as
described in Section 290.024, 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 five working
days. Each person to whom this paragraph applies at the time this
paragraph becomes effective shall immediately provide the information
required by this paragraph within five working days.
(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.
(B) Except as provided in subparagraph (A), 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.
(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.
(b) If any person who is required to register Internet identifiers
pursuant to Section 290.024 adds or changes an Internet identifier,
as defined in Section 290.024, the person shall send written notice
by mail of the addition or change to the law enforcement agency or
agencies with which he or she is currently registered within 30
working days of the addition or change. The law enforcement agency or
agencies shall make the information available to the Department of
Justice.
SEC. 4. Section 290.015 of the Penal Code, as amended November 6,
2012, by initiative Proposition 35, Section 12, is amended to read:
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) If the person is required to register for a crime where the
use of the Internet was essential to the commission of the crime, a
list of any and all Internet identifiers used by the person for
communicative purposes, as defined in Section 290.024.
(4) A list of all Internet identifiers actually used by the
person, as required by Section 290.024.
(5) A statement in writing, signed by the person, acknowledging
that the person is required to register and update the information in
paragraph (4), as required by this chapter.
(6) 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.
(7) 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.
SEC. 5. Section 290.015 of the Penal Code, as amended by Section
17 of Chapter 867 of the Statutes of 2012, is repealed.
SEC. 6. Section 290.024 of the Penal Code is amended to read:
290.024. For purposes of this chapter,
chapter:
"Internet identifier" means an electronic mail address, user name,
screen name, or similar identifier actually used to participate in
online communications, including, but not limited to, Internet forum
discussions, Internet chat room discussions, emailing, instant
messaging, social networking, or similar 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 a lawful commercial
enterprise or government agency concerning a lawful commercial or
governmental transaction with that enterprise or agency.
(a) A person who is convicted of a felony on or after January 1,
2016, requiring registration pursuant to the Act, shall register his
or her Internet identifiers if a court determines at the time of
sentencing that any of the following apply:
(1) The person used the Internet to collect any private
information to identify a victim of the crime to further the
commission of the crime.
(2) The person was convicted of a felony pursuant to subdivision
(b) or (c) of Section 236.1 and used an electronic communication
device, as defined under subdivision (b) of Section 653.2, to traffic
a victim of the crime.
(3) The person was convicted of a felony pursuant to Chapter 7.5
(commencing with Section 311) and used an electronic communication
device, as defined under subdivision (b) of Section 653.2, to
prepare, publish, distribute, send, exchange, or download the obscene
matter or matter depicting a minor engaging in sexual conduct, as
defined in subdivision (d) of Section 311.4.
(b) For purposes of this chapter:
(1) "Internet identifier" means any electronic mail address or
user name used for instant messaging or social networking that is
actually used for direct communication between users on the Internet
in a manner that makes the communication not accessible to the
general public. "Internet identifier" does not include Internet
passwords, date of birth, social security number, or PIN number.
(2) "Private information" means any information that identifies or
describes an individual, including, but not limited to, his or her
name; electronic mail, chat, instant messenger, social networking, or
similar name used for Internet communication; social security
number; account numbers; passwords; personal identification numbers;
physical description; physical location; home address; home telephone
number; education; financial matters; medical or employment history;
and statements made by, or attributed to, the individual.
SEC. 7. Section 290.45 of the Penal
Code is amended to read:
290.45. (a) (1) Notwithstanding any other provision of
law, and except as provided in paragraph (2), any
designated law enforcement entity may provide information to the
public about a person required to register as a sex offender pursuant
to Section 290, by whatever means the entity deems appropriate, when
necessary to ensure the public safety based upon information
available to the entity concerning that specific person.
(2) The law enforcement entity shall include, with the disclosure,
a statement that the purpose of the release of information is to
allow members of the public to protect themselves and their children
from sex offenders.
(3) Community notification by way of an Internet Web site shall be
governed by Section 290.46, and a designated law enforcement entity
may not post on an Internet Web site any information identifying an
individual as a person required to register as a sex offender except
as provided in that section unless there is a warrant outstanding for
that person's arrest.
(b) Information that may be provided pursuant to subdivision (a)
may include, but is not limited to, the offender's name, known
aliases, gender, race, physical description, photograph, date of
birth, address, which shall be verified prior to publication,
description and license plate number of the offender's vehicles or
vehicles the offender is known to drive, type of victim targeted by
the offender, relevant parole or probation conditions, crimes
resulting in classification under this section, and date of release
from confinement, but excluding information that would identify the
victim. It shall not include any Internet identifier submitted
pursuant to this chapter.
(c) (1) The designated law enforcement entity may authorize
persons and entities who receive the information pursuant to this
section to disclose information to additional persons only if the
entity determines that disclosure to the additional persons will
enhance the public safety and identifies the appropriate scope of
further disclosure. A law enforcement entity may not authorize any
disclosure of this information by its placement
placing that information on an Internet Web site.
site, and shall not authorize disclosure of Internet
identifiers submitted pursuant to this chapter, except as provided in
subdivision (h).
(2) A person who receives information from a law enforcement
entity pursuant to paragraph (1) may disclose that information only
in the manner and to the extent authorized by the law enforcement
entity.
(d) (1) A designated law enforcement entity and its employees
shall be immune from liability for good faith conduct under this
section.
(2) Any public or private educational institution, day care
facility, or any child care custodian described in Section 11165.7,
or any employee of a public or private educational institution or day
care facility which in good faith disseminates information as
authorized pursuant to subdivision (c) shall be immune from civil
liability.
(e) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.
(2) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than five
hundred dollars ($500) and not more than one thousand dollars
($1,000).
(f) For purposes of this section, "designated law enforcement
entity" means the Department of Justice, every district attorney, the
Department of Corrections, the Department of the Youth Authority,
and every state or local agency expressly authorized by statute to
investigate or prosecute law violators.
(g) The public notification provisions of this section are
applicable to every person required to register pursuant to Section
290, without regard to when his or her crimes were committed or his
or her duty to register pursuant to Section 290 arose, and to every
offense described in Section 290, regardless of when it was
committed.
(h) (1) Notwithstanding any other law, a designated law
enforcement entity shall only use an Internet identifier submitted
pursuant to this chapter, or release that Internet identifier to
another law enforcement entity, for the purpose of investigating a
sex-related crime, a kidnapping, or human trafficking.
(2) A designated law enforcement entity shall not disclose or
authorize persons or entities to disclose an Internet identifier
submitted pursuant to this chapter to the public or other persons,
except as required by court order.
SEC. 7. SEC. 8. The Legislature
finds and declares that Section 3 of this act,
which amends Section 290.014 290.45 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:
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
registerable sex offenders as part of their registration not be made
generally available to the public.
SEC. 8. SEC. 9. 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:
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.