BILL ANALYSIS                                                                                                                                                                                                    



          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          |
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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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