BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 448 (Hueso) - Sex offenders: Internet identifiers
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|Version: August 18, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: Yes |Mandate: No (See Staff |
| |Comments) |
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|Hearing Date: August 24, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 448, an urgency measure, would delete the
requirement that a person subject to sex offender registration
list on his or her registration all internet service providers
used by him or her. This 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, and to notify law
enforcement of any additions or changes within five working
days. This bill would additionally authorize the Attorney
General to disclose internet identifier information to other
persons, as specified.
Fiscal
Impact:
Department of Justice (DOJ) : Major one-time and ongoing costs
(General Fund) of $2.3 million in 2015-16, $1.6 million in
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2016-17, and $1.3 million in 2017-18 and annually thereafter
for new activities, including modification of the existing
California Sex and Arson Registry (CSAR) system,
implementation of a new case management system to track and
manage information to be released, and ongoing workload
related to case assessments of identifier information to be
disclosed. Additionally, potential workload associated with
litigation related to the release of this information.
Local law enforcement agencies : Potentially significant
one-time and ongoing state-reimbursable local law enforcement
agency costs in the hundreds of thousands to millions of
dollars (General Fund) annually to the extent the workload
involved to make determinations, both retroactively and
prospectively, of sex offender registrants who committed
crimes where "the use of the internet was essential to the
commission of the crime," in order to determine required
submission of internet identifiers, is considered a higher
level of service. There are roughly 100,000 active sex
offender registrants currently in the CSAR who may require
this determination.
Background: In 2012, the voters approved Proposition 35, the Californians
Against Sexual Exploitation (CASE) Act, which, among its
provisions, expanded the definition and penalties for human
trafficking, and imposed supplemental reporting obligations for
registered sex offenders by requiring offenders to provide "[a]
list of any and all Internet identifiers established or used by
the person," "[a] list of any and all Internet service providers
used by the person," and a statement signed by the registrant
that he or she acknowledges the requirement to register and
update the specified Internet-related information. (Penal Code §
290.015(a)(4)-(6).) The Act also requires registered sex
offenders to send written notice to law enforcement within 24
hours of adding or changing an Internet identifier or an account
with an Internet service provider.
On the day the CASE Act took effect, a class of registered sex
offenders who regularly use the Internet to advocate anonymously
on behalf of sex offenders and to comment on news articles filed
suit, asserting that the CASE Act violates their First Amendment
rights to freedom of speech and association and that the
statutory provisions are void for vagueness in violation of the
Fourteenth Amendment. In Doe v. Harris (2014), the appellate
court concurred with the district court that the CASE Act
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unnecessarily chills protected speech in at least three ways:
(1) it does not make clear what sex offenders are required to
report; (2) it provides insufficient safeguards preventing the
public release of the information sex offenders do report; and
(3) the 24-hour reporting requirement is onerous and overbroad.
Proposed
Law: This bill states legislative intent to further the
objectives of the CASE Act by amending its provisions to conform
to 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.) Specifically, this bill:
Provides that if a registered sex offender is required
to register for a crime where the use of the internet was
essential to the commission of the crime, in his or her
annual registration, he or she must include a list of any
and all Internet identifiers he or she uses for
communicative purposes, as defined.
Defines "Internet identifier" as an email address, user
name, screen name or similar identifier actually used to
participate in online communications, including, but not
limited to Internet forum or chat room discussions,
e-mailing, instant messaging, social networking or similar
methods of online communication.
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."
Provides that where any person registered as a sex
offender for a crime where the use of the Internet was
essential to the commission of the crime 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. (current
law requires notice when add/change to identifier or
provider within 24 hours)
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Requires a law enforcement agency to which an Internet
identifier is submitted to make the Internet identifier
available to the DOJ.
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.
Finds that the limits on public disclosure of Internet
identifiers are necessary to protect the First Amendment
rights of sex offender registrants.
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,
kidnapping, or human trafficking."
Prohibits a law enforcement agency from releasing a
registrant's Internet identifiers to the public.
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
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."
Related
Legislation: Proposition 35 (2012), the CASE Act, among its
provisions, expanded the definition and penalties for human
trafficking, and imposed supplemental reporting obligations for
registered sex offenders, as specified.
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Staff
Comments: The DOJ has indicated General Fund costs of $2.3
million in 2015-16, $1.6 million in 2016-17, and $1.3 million in
2017-18 and annually thereafter to meet the requirements
specified in this measure. Specifically, the Bureau of Criminal
Identification and Investigative Services (BCIIS) anticipates
the need for one Program Technician II to research and file
court, crime report, and oath documentation, as well as perform
data imaging and data entry into the new case management system.
The BCIIS also anticipates additional criminal intelligence
specialists (CIS) required to log and respond to phone calls and
inquiries from law enforcement agencies, sex offender
registrants, and the public. The CIS would review and analyze
documentation to evaluate and justify whether internet
identifier information should be subject to disclosure.
Additional resources would be required on a limited-term basis
to modify the existing CSAR system, as well as develop and
implement a new case management system to track and manage the
internet identifier information that is released. The DOJ has
indicated these limited-term resources would be required to
analyze, design, develop, test, and deploy the user interface
modifications, reports and forms, and the database
modifications.
The DOJ has also indicated an unknown, but potentially
significant increase in workload due to possible litigation
regarding the disclosure of internet identifier information of
registered sex offenders.
This bill requires a registered sex offender for a crime "where
the use of the internet was essential to the commission of the
crime," to provide his or her internet identifiers, as defined.
It is estimated that local law enforcement will incur new
workload to make such a determination for each registered sex
offender, both retroactively for about 100,000 current active
registrants, as well as prospectively, as new offenders are
required to register. While it is unclear how this determination
will be made in the absence of a definition of "essential" to
clearly determine which registrants must provide their internet
identifier information, to the extent the workload involved is
considered a higher level of service on local agencies could
result in significant one-time and ongoing state-reimbursable
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costs (General Fund). The magnitude of costs would be dependent
on the number of registrants impacted and the workload involved
to make the determination for each registrant, which would
likely vary.
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