BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
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
HISTORY
Source: Safer California Foundation; San Diego Police Officers
Association
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
of?
PURPOSE
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
circumstances.
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
information:
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
of?
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 §
290.015.)
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.
(a).)
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
of?
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.
(a)-(b)(1).)
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
registration:
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.
(a)(4)-(6).)
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
occur:
SB 448 (Hueso ) PageE
of?
The registrant "adds or changes his or her account" with
an Internet service
Provider;
The registrant "adds or changes an Internet identifier;"
or
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
Appeals.)
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
of?
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
of?
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."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
overcrowding.
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
of?
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.
COMMENTS
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
of?
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
speech.
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
of?
identified purpose and to maintain
confidentiality.
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
of?
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
Affirmed
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
of?
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.
(Id.)
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
of?
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
omitted).)
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
of?
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
of?
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
of?
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
of?
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
of?
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
of?
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
of?
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
public.
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
of?
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
confidential.
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.
DOES THIS BILL RESOLVE THE CONSTITUTIONAL MATTERS BEFORE THE
FEDERAL COURT?
WHAT FURTHER RECOURSE WILL BE AVAILABLE TO THE STATE IF THE STAY
OF THE PERMANENT INJUNCTION IS LIFTED IN THE FALL?
SB 448 (Hueso ) PageV
of?
-- END -