BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 448 (Hueso) - Sex offenders: Internet identifiers ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 18, 2015 |Policy Vote: PUB. S. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: Yes |Mandate: No (See Staff | | |Comments) | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 24, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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 SB 448 (Hueso) Page 1 of ? 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 SB 448 (Hueso) Page 2 of ? 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) SB 448 (Hueso) Page 3 of ? 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. SB 448 (Hueso) Page 4 of ? 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 SB 448 (Hueso) Page 5 of ? 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. -- END --