BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 448        Hearing Date:    July 14, 2015    
          |Author:    |Hueso                                                |
          |Version:   |June 17, 2015                                        |
          |Urgency:   |Yes                    |Fiscal:    |No               |
          |Consultant:|JM                                                   |
          |           |                                                     |

            Subject:  Sex Offenders: Internet Identifiers; Proposition 35


          Source:   Safer California Foundation; San Diego Police Officers  

          Prior Legislation:Proposition 35 of the 2012 General Elections -  
                         Californians Against Sexual Slavery (CASE) Act

          Support:  AFSCME, Local 685; Association of Deputy District  
                    Attorneys; Association for Los Angeles Deputy  
                    Sheriffs; Californians Against Slavery; California  
                    Association of Code Enforcement Officers; California  
                    College and University Police Chiefs Association;  
                    California Narcotics Association; Crime Victims United  
                    of California; Los Angeles Police Protective League;  
                    Los Angeles Probation Officers Union;  Peace Officers  
                    Research Association of California; Riverside Sheriffs  
                    Association; Safer California Foundation; San Diego  
                    Police Officers Association  

          Opposition:American Civil Liberties Union; California Reform Sex  
                    Offender Laws; California Civil Liberties Advocacy;  
                    One individual


          SB 448  (Hueso )                                          PageB  



          The purpose of this bill is to: 1) require a sex offender, when  
          registering with local law enforcement, to report his or her  
          Internet identifiers used for interactive communications, as  
          specified; 2) provide that Internet identifiers do not include  
          user names, screen names or e-mail addresses used solely to read  
          content, purchase products or communicate with government on  
          line; 3) require the registrant to notify law enforcement within  
          five working days of any changes in these identifiers; 4)  
          provide that a  law enforcement agency may only release the  
          Internet identifier information to another law enforcement  
          agency "for the sole purpose of preventing or investigating a  
          sex-related crime, a kidnapping, or human trafficking"; and 5)  
          authorize the Attorney General to disclose a registrant's  
          Internet identifiers to another person under specified limited  

          Existing law:

             1.   Generally requires a person convicted of enumerated sex  
               offenses and sexually-related human trafficking crimes to  
               register within five working days of coming into a city or  
               county, with law enforcement officials, as specified.    
               (Pen. Code  290.)  Registration generally must be updated  
               annually, within five working days of a registrant's  
               birthday.  (Pen. Code  290.012 (a).)  In some instances,  
               registration must be updated once every 30 or 90 days, as  
               specified.  (Pen. Code  290.011, 290.012.)

             2.   Requires registrants to provide the following  

                         A signed statement giving information as  
                   required by the Department of Justice (DOJ) and giving  
                   the name and address of the person's employer and place  
                   of employment;
                         The fingerprints and a current photograph of the  
                   person taken by the registering official;
                         The license plate number of any vehicle owned  


          SB 448  (Hueso )                                          PageC  
                   by, regularly driven by, or registered in the name of  
                   the person;
                         A signed statement by the registrant  
                   acknowledging that he or she may have a duty to  
                   register in any other state upon  relocation; and
                         Adequate proof of residence.  (Pen. Code   

             1.   Provides that it is a crime for any person who is  
               required to register to willfully violate the requirements  
               of registration.  (Pen. Code  290.018.)  Specifically,  
               current statute includes the following provisions:

                         Misdemeanor underlying sex crime: Any person who  
                   is required to register based on a misdemeanor  
                   conviction or juvenile adjudication who willfully  
                   violates any requirement of the Act is guilty of a  
                   misdemeanor punishable by imprisonment in a county jail  
                   not exceeding one year.  (Pen. Code  290.018, subd.  
                         Felony underlying sex crime: Except as provided,  
                   any person who is required to register under the Act  
                   based on a felony conviction or juvenile adjudication  
                   who willfully violates any requirement of the Act or  
                   who has a prior conviction or juvenile adjudication for  
                   the offense of failing to register under the Act and  
                   who subsequently and willfully violates any requirement  
                   of the Act is guilty of a felony and shall be punished  
                   by imprisonment in the state prison for 16 months, or 2  
                   or 3 years.  (Pen. Code  290.018, subd. (b).)
                         Transient registrants: Transient registrants who  
                   willfully fail to comply with the requirement of  
                   registering no less than every 30 days is guilty of a  
                   misdemeanor, punishably by jail for at least 30 days,  
                   but not exceeding six months.   "A person who willfully  
                   fails to comply with the requirement that he or she  
                   reregister no less than every 30 days shall not be  
                   charged with this violation more often than once for a  
                   failure to register in any period of 90 days.  Any  
                   person who willfully commits a third or subsequent  
                   violation of the (transient registration requirements)  
                   shall be punished (based on their underlying offense,  
                   as described above).  (Pen. Code  290.018, subd. (g).)
                         Sexually violent predator registrants:  Any  


          SB 448  (Hueso )                                          PageD  
                   person who has ever been adjudicated to be a sexually  
                   violent predator (Welf. & Inst. Code  6600) must  
                   verify his or her address and place of employment,  
                   including the name and address of the employer, no less  
                   than once every 90 days.  (Pen Code  290.12.)

             1.   Provides, with specified exceptions, that a law  
               enforcement entity may inform the public about a registered  
               sex offender by whatever means the entity deems  
               appropriate, when necessary to ensure the public safety  
               based upon information concerning that specific person.  
               (Pen. Code  290.45, subd. (a)(1).)

             2.   Requires the Department of Justice (DOJ) to make  
               available information concerning persons who are required  
               to register as a sex offender to the public via an Internet  
               Web site, as specified.  (Pen. Code  290.46, subd.  

             3.   Includes the Californians Against Sexual Slavery (CASE)  
               Act, enacted pursuant to the passage of Proposition 35 in  
               November of 2012 to expand the definition of human  
               trafficking, increase human trafficking penalties and  
               impose new requirements on persons required to register as  
               sex offenders, as specified.  As relevant to this bill, the  
               CASE Act requires each person registered as a sex offender  
               to provide the following information with his or her  

                           A list of any and all Internet identifiers he  
                    or she established or used;
                           A list of any and all Internet service  
                    providers he or she established or used; and
                           A statement signed by the registrant that he  
                    or she acknowledges the requirement to register and  
                    update the specified Internet-related information.   
                    (Pen. Code  290, subd. (a) and 290.015, subd.  

             1.   Provides that a sex offender registrant must send  
               written notice within 24 hours to his or her registering  
               law enforcement agency if one or more of the following  


          SB 448  (Hueso )                                          PageE  
                 The registrant "adds or changes his or her account" with  
               an Internet service 
                 The registrant "adds or changes an Internet identifier;"  
                 Directs law enforcement agencies to make information  
               about any changes to a 
                    registrants' Internet information available to the  
                    Department of Justice (DOJ).    (Pen. Code  290.014,  
                    subd. (b).)

             1.   Provides the following definitions applicable to  
               registration of Internet information:

                           "Internet service provider" means a business,  
                    organization or entity providing a computer and  
                    communications facility directly to consumers through  
                    which consumers can access the Internet, but does not  
                    include an entity that provides only  
                    telecommunications services, cable services or video  
                    services, or any system operated by a library or  
                    educational institution.
                           "Internet identifier" means an electronic mail  
                    address, user name, screen name, or similar identifier  
                    used for the purpose of Internet forum discussions,  
                    Internet chat room discussions, instant messaging,  
                    social networking or similar Internet communications.  
                    (Pen. Code  290.024.)

          This bill:

             1.   States legislative intent to further objectives of the  
               CASE Act by amending its provisions to conform with the  
               requirements of the court in Doe v. Harris.  (Case Nos.  
               13-15263 and 13-15267 -N. D, of Cal.; 9th Circuit Court of  

             2.   Provides that a registered sex offender must, in his or  
               her annual registration, include the Internet identifiers  
               he or she uses for communicative purposes, as defined.

             3.   Defines an Internet identifier as an email address, user  
               name, screen name or similar identifier actually used to  
               participate in online communications, including, but not  


          SB 448  (Hueso )                                          PageF  
               limited to Internet forum or chat room discussions,  
               e-mailing, instant messaging, social networking or similar  
               methods of online communication.  

             4.   Provides that an Internet identifier does not include  
               Internet passwords, or any e-mail address, user name screen  
               name or similar identifier used solely to read content  
               online or for "transactions with a lawful commercial  
               enterprise or government agency concerning a lawful  
               commercial or governmental transaction."

             5.   Provides that where any person registered as a sex  
               offender adds or changes an Internet identifier, as  
               defined, he or she shall send written notice within five  
               working days to law enforcement agency with which he or she  
               currently registered.

             6.   Requires a law enforcement agency to which an Internet  
               identifier is submitted to make the Internet identifier  
               available to the DOJ.

             7.   Finds that restrictions on public disclosure of the  
               Internet identifiers or registrants limits the public'  
               right of access to meetings of public bodies and disclosure  
               of the writings of public officials, as required by the  
               Article I, Section 3 of the California Constitution.

             8.   Finds that the limits on public disclosure of Internet  
               identifiers are necessary to protect the First Amendment  
               rights of sex offender registrants.  

             9.   Provides that a law enforcement agency that receives  
               Internet identifiers from a registrant may only release the  
               information to another law enforcement agency "for the sole  
               purpose of preventing or investigation a sex-related crime,  
               a kidnapping, or human trafficking."

             10.  Prohibits a law enforcement agency from releasing a  
               registrant's Internet identifiers to the public. 

             11.  Authorizes DOJ to 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  


          SB 448  (Hueso )                                          PageG  
               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  


          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  


          SB 448  (Hueso )                                          PageH  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          1.Need for This Bill

          According to the author:

               In November of 2012 California voters approved  
               Proposition 35, also known as the Californians Against  
               Sexual Exploitation Act (CASE).  The act was approved  
               with 81% of the vote.  In order to provide law  
               enforcement with a tool to investigate sex trafficking  
               online, Proposition 35 required all registered sex  
               offenders in California to submit their internet  
               identifiers to the local law enforcement agencies in  
               the jurisdiction in which they are registered.  Upon  
               passage of the Case Act, the ACLU and the Electronic  
               Frontier Foundation filed a lawsuit challenging the  
               Internet registration provisions of Proposition 35.  A  
               temporary restraining was immediately granted.  On  
               November 18th of 2014 the 
               9th Circuit upheld the injunction against the  


          SB 448  (Hueso )                                          PageI  
               provision, finding that it would most likely violate  
               the 1st amendment on the grounds that:

                         The definition of an internet identifier  
                   was too vague and overly broad. 
                         The act did not sufficiently protect  
                   anonymous speech 
                         The one day reporting requirement was  
                   onerous and would have a chilling effect on  

               On April 7th 2015, the district court gave the  
               sponsors of Proposition until the end of this  
               legislative session to address the concerns of the 9th  
               circuit.  This bill addresses those concerns in the  
               following manner:

                         Provides for a clearer definition of  
                   Internet Identifier by striking the Internet  
                   Service Provider language and clarifying that  
                   internet identifiers only include those 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.
                         Clarifies that Internet identifiers do 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.
                         Allows sex offenders to report their  
                   identifiers within five working days. 
                         Prevents the release of the identifiers to  
                   members of the general public, but allows the  
                   Attorney General (AG) to share the identifiers  
                   with a member of the public if the AG determines,  
                   based upon specific facts, that the information  
                   will likely protect the public from sex related  
                   crimes, kidnappings, or human trafficking and the  
                   person receiving the information signs an oath  
                   promising to use the information only for the  


          SB 448  (Hueso )                                          PageJ  
                   identified purpose and to maintain  
                         Only allows a law enforcement agency to  
                   access Internet identifiers if the agency is  
                   investigating a sex related crime, a kidnapping or  
                   human trafficking. 

               Human Trafficking is a major problem in California.   
               The AG has reported that between July 1, 2010 and June  
               30, 2012, California's nine anti-trafficking task  
               forces initiated 2,552 investigations, identified  
               1,277 victims of human trafficking, and arrested 1,798  
               individuals.  In the age of the Internet, it has  
               become easier for traffickers to find and abuse their  
               victims. The AG reported in 2012:  "The business of  
               sex trafficking ? has moved online. Traffickers use  
               the Internet to increase their reach, both in  
               recruiting victims through social media and finding  
               clients via advertisements posted on classified  
               advertising websites."

          1.Pending Federal Court Case; Permanent Injunction Barring  
            Enforcement of Certain Provisions of the CASE Act Stayed Until  
            September 15, 2015 Pending Legislative Fix

          California Reform Sex Offender Laws, the ACLU and the Electronic  
          Frontier sued in federal court to block enforcement of the  
          provisions of the CASE Act (Prop. 35 of 2012) that required sex  
          offenders to disclose Internet identifiers and service providers  
          when registering with local law enforcement.  On January 13,  
          2013, the United States District Court for the Northern District  
          of California (San Francisco) granted a preliminary injunction  
          barring enforcement of the Act.  

          The Attorney General and intervenors (sponsors of the  
          Initiative) appealed the order to the 9th Circuit Court of  
          Appeals.  On November 18, 2014, the Court of Appeals affirmed  
          the district court order in full.  On April 7, 2015, the  


          SB 448  (Hueso )                                          PageK  
          District Court issued an order enjoining the Attorney General of  
          California from enforcing the Internet identifiers provisions of  
          the CASE Act.  The court stayed enforcement of the injunction  
          until September 15, 2015 to allow the Attorney General and the  
          CASE Act sponsors to seek legislation resolving the matters  
          before the court.  The next hearing in Doe v. Harris is set for  
          October 26, 2015.  (Doe v. Harris, Case No.12-cv-05713-THE  
          (April 7, 2015.)

          This bill was gutted and amended on June 17, 2015 to contain the  
                                                         provisions now before the Committee.

          2.Ninth Circuit Opinion; Federal District Court Injunction  

          In its opinion dated November 18, 2014, The Ninth Circuit Court  
          of Appeals affirmed the district court's order preliminarily  
          enjoining provisions of the CASE Act.  The court noted that the  
          CASE Act "sought to supplement and modernize" existing  
          California law concerning registered sex offenders by adding the  
          following requirements of registration: 

                 Any and all Internet identifiers established or used by  
               the person;
                 Any and all Internet service providers used by the  
               person; and
                 Any changes in the registrant's Internet service account  
               or identifiers, within 24 hours of the change.  (Roe v.  
               Harris, No. 13-15263 D.C. No. 3:12-cv-05713-THE (Nov. 18,  
               2015) at 5.)

          The court explained, the "CASE Act defines the term 'Internet  
          identifier' as 'an electronic mail
          address, username, screen name, or similar identifier used for  
          the purpose of Internet forum
          discussions, Internet chat room discussions, instant messaging,  
          social networking, or similar Internet communication.. . . .   
          The Act defines 'Internet service provider' as 'a
          business, organization, or other entity providing a  computer  
          and communications facility


          SB 448  (Hueso )                                          PageL  
          directly to consumers through which a person may obtain access  
          to the Internet.'" (Id. at 7 (citations omitted).)
          The court found that the sex offenders who are no longer on  
          parole or probation have full First Amendment rights.  (Id. at  
          10-11.)  The court found that the Act did not violate the First  
          Amendment by being facially overbroad, as the Act does not  
          regulate the content of speech.  (Id. at 22.)  The Act is thus  
          "content neutral."  The court specifically found that while the  
          Act regulated registered sex offenders as a class of speakers,  
          it did not do so as a way of suppressing what registrants would  
          or could say.  Therefore, the Act need not be subjected to  
          strict scrutiny, which would require the state to demonstrate a  
          compelling state interest that could not be otherwise advanced.   

          The court, however, found that the law did burden anonymous  
          online speech.  (Id. at 32.) The Act must therefore be subjected  
          to "intermediate scrutiny" to determine if the law is "narrowly  
          tailored to serve the government's legitimate, content-neutral  
          interests."  The specific test is whether the means chosen to  
          advance the legitimate state interest "burden substantially more  
          speech than is necessary" to advance the state's legitimate  
          interest.  (Id at 23.)  The court concluded in part:

               California has a substantial interest in protecting  
               vulnerable individuals, particularly children, from  
               sex offenders, and the use of the Internet to  
               facilitate that exploitation is well known to this  
               Court. . . .    

               Although California clearly has a legitimate interest,  
               the more difficult question is whether the means  
               California has chosen "'burden[s] substantially more  
               speech than is necessary to further the government's  
               legitimate interests.'" . . .  "The Constitution gives  
               significant protection from overbroad laws that chill  
               speech within the First Amendment's vast and  
               privileged sphere." . . .  The concern that an  
               overbroad statute deters protected speech is  
               especially strong where, as here, the statute imposes  


          SB 448  (Hueso )                                          PageM  
               criminal sanctions. . . .  

               We conclude that the CASE Act unnecessarily chills  
               protected speech in at least three ways: the Act does  
               not make clear what sex offenders are required to  
               report, there are insufficient safeguards preventing  
               the public release of the information sex offenders do  
               report, and the 24-hour reporting requirement is  
               onerous and overbroad. (Id. at 24-25 (citations  

          District Court Order

          The district court order affirmed by the Ninth Circuit, issued  
          on January 11, 2013. stated that Internet identifiers that must  
          be reported could be narrowed to identifiers actually used to  
          post a comment, send e-mail, enter an Internet chat, or engage  
          in another kind of Internet communication.  With such narrowing,  
          a registrant would not report identifiers used solely to buy  
          products or read content online.  (Or. pp. 8-9.)

          The district court then considered when a registrant would be  
          required to report an identifier that could be associated with  
          interactive Internet use, but is used solely for purchases and  
          reading content.  The state told the court that the registrant  
          would only need to report the identifier within 24 hours of  
          using it for interactive communications.  (Or. pp. 8-9.)

          As to Internet service providers, the state told the court that  
          the plain language of the Act requires the registrant to report  
          only those providers with which the registrant has an account at  
          the time of registration.  The registrant would not be required  
          to report providers he or she only accesses or uses without an  
          account. The registrant must update his report on service  
          providers only when he or she adds or changes an account.  The  
          court made no findings as to the state's description of the  
          plain language of the Act.  The court stated it was permissible  
          to read the Act in that manner and would do so.  (Or. p. 8.)


          SB 448  (Hueso )                                          PageN  

          The court summarized its narrowed construction of the act:  The  
          registrant must report Internet service providers "with which  
          the registrant has a current account at the time of registration  
          or with which [he or she] later creates an account.  He or she  
          must report Internet identifiers "actually used by the  
          registrant to engage in interactive communications with others"  
          within 24 hours of use of the identifier for that purpose.  (Or.  
          p. 9.)

          1.The District Court's Application of Intermediate Scrutiny to a  
            Narrowed Act

          The district court addressed whether the Act as construed was  
          sufficiently narrowly tailored to justify the burden it placed  
          on speech in advancing the state's interests.  The court found  
          that the purposes of the Act were legitimate, content neutral  
          state concerns and that the Internet information required by the  
          Act could advance the legitimate state purpose. The purposes or  
          goals of the Act are as follows:

                 To combat human trafficking;
                 To allow law enforcement to track and prevent online sex  
               offenses and human trafficking; and
                 The Act also "expresses an interest in deterring  
               predators from using the Internet to facilitate human  
               trafficking and sexual exploitation.  

          The court noted that the Internet information could be used to  
          find registrants who used the Internet to recruit human  
          trafficking victims and to determine if a registrant perpetrated  
          a sex offense.  The court noted that these results could only  
          occur if the perpetrator of human trafficking or a sex crime was  
          a registrant and that the "re-offending registrant complied  
          with" the Act.  (Or. p. 10, fn. 8.)  The court stated that  
          although the government provided no "real-life examples ... of  
          Internet information in a sex offender registry to prevent or  
          solve a crime," the challenged provisions could conceivably  
          advance the legitimate purposes of the Act.  (Or. p. 10.)


          SB 448  (Hueso )                                          PageO  
          The court, the parties and the interveners considered a Utah  
          statute that had been initially found unconstitutional, but was  
          later upheld as amended.  (Doe v. Shurtleff (10th Cir. 2010) 628  
          F.3d 1217.)  The Utah statute initially required registrants to  
          report Internet identifiers and addresses that are similar to  
          those in the Act.   The law was struck down because it included  
          no limits on the state's use of the information, "implicating  
          protected speech and criminal activity alike."  (Or. p. 11,  
          quoting the district court in Shurtleff.)  

          The Utah law was substantially narrowed to limit use of the  
          Internet information to investigations of committed kidnapping  
          and sex-related crimes and apprehending the offenders.  The  
          legislature amended the state public records act to make  
          reported Internet identifiers confidential, to be disclosed only  
          pursuant to court order or legislative subpoena.  The  
          information could be shared only if the receiving government  
          agency complied with the restrictions on use.  The information  
          could not be disclosed to the public.  The Federal 10th Circuit  
          Court of Appeals found the amended statute constitutional in  
          that it did not unnecessarily interfere with a registrant's  
          freedom to speak anonymously. 

          California law enforcement may disclose the information to the  
          public if the agency finds disclosure necessary to protect the  
          public and their children from sex offenders.  In this regard,  
          the court found that the California registration disclosure law  
          is comparable to the original, unconstitutional, Utah law.   
          California law is also similar to an unconstitutional Georgia  
          law that gave law enforcement wide discretion to disclose the  
          information to "law enforcement agencies for law enforcement  
          purposes" and to the public "as necessary" for public  
          protection.  Disclosures under Georgia law could allow members  
          of the public to search and monitor communications by a  
          registrant on matters of public policy, violating the First  
          Amendment.  (Or. pp. 12-13.)

          The Attorney General in Doe v. Harris asserted that there must  
          be some nexus between Internet information and criminal activity  
          before law enforcement could access the information.  However,  
          no such nexus was required by the Act and the court could not  


          SB 448  (Hueso )                                          PageP  
          presume that the state would comply with a self-imposed  
          limitation.  The Act thus improperly chilled speech because a  
          registrant has no guarantee that the state would not share  
          Internet identifiers the registrant could use for protected,  
          anonymous speech.  (Or. p. 13.)

          A reporting time limit of 72 hours in the Georgia law improperly  
          chilled speech.  The chilling effect of the California law is  
          "heightened" because disclosure of Internet identifiers could be  
          made to law enforcement at the time the registrant speaks, or in  
          no less than 24 hours, during which time the registrant's speech  
          could be continuing.  A contemporaneous disclosure requirement  
          burdens speech more than an after-the-fact disclosure because  
          contemporaneous disclosure directly ties the speaker to the  
          message.  (Or. p. 13.) 

          The court also found that California law also substantially  
          chills speech because a violation of the Internet identifier  
          reporting requirement is punishable by a prison term of up to  
          three years.<1>  A registrant who is not certain what he or she  
          must disclose could be very reluctant to speak anonymously  
          online.  The chilling effect is heightened further because the  
          federal court's narrowing of the Act is not binding on  
          California state courts.

          <1>   The court actually substantially understated the potential  
          sentence a registrant faces for failing to report an identifier.  
           Most crimes requiring registration are serious felonies.  A  
          person who has been previously convicted of a serious felony is  
          subject to a doubled Two Strike sentence when convicted of any  
          felony in the current case.  Further, most registrants with two  
          prior serious felony convictions would be subject to a sentence  
          of 25-years-to-life for failing to report  identifiers, although  
          that crime is not a serious felony.  While most defendants  
          convicted in the current case of a non-serious felony are not  
          subject to a life term Three Strike sentence, very many  
          registrants have been convicted of a so-called "super strike,"  
          felony.  A super strike includes any sex crime committed by  
          force, duress, threats or deceit, and any conviction for a  
          sexually motivated touching of a child under the age of 14.


          SB 448  (Hueso )                                          PageQ  

          The Act is not Narrowly Tailored, as it Applies to all  
          Registrants, Regardless of Risk

          The court stated that the chilling effect of the Act might be  
          justified if the law was narrowly tailored, but it is not.  All  
          75,000 California registrants must report their Internet  
          identifiers.  A registrant must report identifiers regardless of  
          the risk he or she presents to reoffend generally and, in  
          particular to reoffend through use of the Internet.  The court  
          noted that the majority of registrants paroled since 2005 tested  
          as low or moderate-low risk on the Static-99 risk-classification  
          instrument.  The court also commented with some significance  
          that the risk of re-offense is lower for online conduct than  
          other offenses.   (Or.  pp. 13-15.) 

          The court rejected the Intervener's argument that the Act's  
          reporting requirements are justified because pedophiles who  
          molest boys and rapists of adult women have recidivism rates of  
          52% and 39% respectively, or that overall recidivism rates for  
          all registrants is between 14% and 20%.     

          The state argued that the Static 99 could not be used to limit  
          the number of registrants who must provide Internet information  
          because the instrument and the Act served different purposes.   
          Specifically, the state argued that the purpose of the Act is to  
          provide the ability "to find somebody if we need to," while  
          Static-99 is used to estimate a sex offender's risk of  
          re-offense after release.   (Or. p. 16.)

          The court found that the issue is not whether registrants  
          recidivate.  Instead, the problem is that the government has not  
          explained why the collection of Internet-identifying information  
          from registrants who present a low or moderately low risk of  
          re-offending, and a potentially even lower risk of re-offending  
          online, is narrowly tailored to the Act's purpose.  Based on the  
          State's own risk assessments, the uniform application of the  
          CASE Act appears overbroad.  (Or. p. 15.)


          SB 448  (Hueso )                                          PageR  
          The court also found that if the Act were limited to registrants  
          whose risk of recidivism justified Internet identifier  
          reporting, the Act "extend[s] to too much speech."  The court  
          noted that the court in the case that struck down the Georgia  
          statute - White v. Baker (N.D.Ga. 2010) 696 F.Supp.2d 1289 -  
          found that online solicitation for sexual exploitation generally  
          does not occur in communications that are posted publicly on  
          sites dedicated to discussions of issues of public interest and  
          concern.  "The government has not shown the utility of requiring  
          registration of Internet identifiers used" for such "public  
          commentary. (Or. p. 16.)    Nonetheless, the CASE Act...  
          extend[s] to all such websites," improperly chilling anonymous  
          commentary on matters of public, political and civic concern.   
          (Or. p. 16.)

          1.Comparing the Federal Court Order With This Bill

          Internet Identifiers required under SB 448

          This bill limits the information a registrant must provide to  
          law enforcement. Specifically, the registrant must disclose  
          identifiers for use in online communications - chat rooms,  
          Internet forums and e-mail.  These are forms of communication  
          through which one could recruit human trafficking victims and  
          lure sex crime victims, although they could be used for a wide  
          range of other speech.  The court noted that solicitation for  
          sexual exploitation "generally does not occur" in publicly  
          posted comments on sites dedicated to public, political or  
          social issues.  (Or. p. 16.)  The provisions in SB 448 defining  
          Internet identifiers subject to reporting include identifiers  
          that could be used for publicly commenting on sites dedicated to  
          public issues.   It appears that SB 448 could be subject to a  
          challenge that the required identifiers are overly broad. 

          Time Allotted to Report Internet Identifiers  

          The bill gives a registrant five working days to report Internet  
          identifiers in an annual registration and when the registrant  
          obtains a new identifier.  The court clearly found that granting  
          a registrant 24 hours to report was insufficient.  A person  


          SB 448  (Hueso )                                          PageS  
          would be forced to disclose his or her identifiers at the time  
          he or she is would seek to speak anonymously on matters of  
          public concern.  The likelihood that the registrant's speech  
          would be directly and contemporaneously tied to identifier has  
          an improper chilling effect.  The court did note that a 72-hour  
          or 3-day requirement in a Georgia law was unconstitutional.  It  
          is not clear whether the court would approve the time frame in  
          the bill of five working days.  As noted, the court was  
          particularly concerned about the chilling effect of requiring  
          disclosure of identifiers while the registrant was still  
          speaking on matters of public concern and intending to remain  
          anonymous while doing so.

          Requiring all Registrants to Report Internet Identifiers

          The court found the CASE Act to be over-inclusive in requiring  
          all registered sex offenders to report Internet identifiers to  
          law enforcement when registering or updating registration.  The  
          court specifically questioned whether registered sex offenders  
          should be screened or evaluated for risk or reoffending  
          generally, but more importantly, risk of re-offending online.  

          The court noted that since 2005, the state's risk assessment  
          tool - the Static 99 - assessed the majority of sex offenders  
          released on parole to be at low or moderate-low risk for  
          re-offense.  Paroled offenders were not specifically assessed  
          for risk of reoffending online.  However, the court noted that  
          the risk of online offense was lower than general re-offense.  

          The bill does not distinguish among registered sex offenders in  
          determining which registrants must disclose Internet  
          identifiers.  As in the original version of the law, all  
          registrants must provide their Internet identifiers.  This  
          appears to leave open the issue of whether the court would find  
          the Act as amended by this bill over-inclusive as concerns those  
          who must register.

          Limits on Disclosure and use of Identifiers


          SB 448  (Hueso )                                          PageT  

          The court faulted the Act for including insufficient limitations  
          on disclosure of Internet information submitted by registrants  
          to law enforcement.  The court specifically noted that  
          California law authorized a law enforcement agency to release  
          sex offender registrant information to the public if the agency  
          concluded that release was necessary to protect the public. 

          The bill authorizes a law enforcement agency to release the  
          information only to another law enforcement agency, and only for  
          preventing or investigating a sex-related crime, kidnapping or  
          human trafficking.

          The bill includes an exception to the prohibition on disclosure  
          of the Internet information to the public.  Specifically, the  
          Attorney General may disclose the information "to another  
          person" ... "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."

          The court compared the original Act unfavorably with a Utah  
          statute that authorized disclosure of the information even to  
          law enforcement only to investigate kidnappings or sex crimes  
          that had already been committed and to apprehend the  
          perpetrators.  From the court's description of the  
          constitutional Utah statute, it appears that law enforcement  
          must obtain a warrant or legislative subpoena to access the  
          information.  The information may not be disclosed to the  

          This bill authorizes disclosure of the information to prevent or  
          investigate human trafficking, kidnapping or a sex crime.   
          Authorization of disclosure to prevent crimes is arguably a very  
          broad standard.  One of the basic stated purposes of the Act is  
          to prevent the noted crimes.  It appears that prevention could  


          SB 448  (Hueso )                                          PageU  
          be based on information providing probable cause for a warrant,  
          or prevention could mean use algorithmic analysis of the  
          information provided by all registrants.

          The authorization of the Attorney General to disclose the  
          information is also relatively broad.  The reference to  
          disclosure to "another person" appears to mean any number of  
          persons.  It is not clear what would constitute specific,  
          articulable facts to protect the public, and it appears that the  
          Attorney General would determine if such facts exist.  It is not  
          clear what it means for a person receiving the disclosure to  
          sign an oath promising to keep the information confidential and  
          use it for authorized purposes.  An oath is essentially an  
          affirmation or declaration - an assertion generally made under  
          penalty of perjury.  (Civ. Code  14; Code of Civ. Proc.  17,  
          subd. (a); Pen. Code  7, 118-119.) It would appear that a  
          promise is something less than that.  This provision is arguably  
          redundant or could be interpreted to mean that a person  
          receiving the information would sign an oath stating that he or  
          she would promise at some later point to keep the information  

          Members may wish to consider whether SB 448 adequately addresses  
          the constitutional infirmities of the CASE Act found by the  
          federal court.  Further, members may wish to ask the sponsor and  
          author what the next step will be in responding to the court's  
          granting of a stay on the effective date of the injunction  
          prohibiting enforcement of the Internet identifier disclosure  
          provisions of the CASE Act. 

          FEDERAL COURT?




          SB 448  (Hueso )                                          PageV  
                                      -- END -