BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 448|
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THIRD READING
Bill No: SB 448
Author: Hueso (D), et al.
Amended: 8/18/15
Vote: 27 - Urgency
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Sex offenders: Internet identifiers
SOURCE: Author
DIGEST: This bill requires a sex offender, when registering
with local law enforcement, to report his or her Internet
identifiers used for interactive communications, as specified if
Internet use was essential to commission of the offense for
which registration is required; provides 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; requires the registrant to
notify law enforcement within five working days of any changes
in these identifiers; provides 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 authorizes the Attorney General to disclose a
registrant's Internet identifiers to another person under
specified limited circumstances.
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ANALYSIS:
Existing law:
1) Requires, generally, 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) 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;
b) The fingerprints and a current photograph of the person
taken by the registering official;
c) The license plate number of any vehicle owned by,
regularly driven by, or registered in the name of the
person;
d) A signed statement by the registrant acknowledging that
he or she may have a duty to register in any other state
upon relocation; and
e) Adequate proof of residence. (Pen. Code § 290.015.)
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3) 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:
a) Misdemeanor underlying sex crime: Any person who is
required to register based on a misdemeanor conviction or
juvenile adjudication who willfully violates any
registration requirement is guilty of a misdemeanor
punishable by imprisonment in a county jail not exceeding
one year. (Pen. Code § 290.018, subd. (a).)
b) 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 two or three years. (Pen. Code §
290.018, subd. (b).)
c) 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, punishable 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).)
d) Sexually violent predator registrants: Any person who
has ever been adjudicated to be a sexually violent predator
(Welf. & Inst. Code § 6600) must verify his or her address
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and place of employment, including the name and address of
the employer, no less than once every 90 days. (Pen Code §
290.12.)
4) 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).)
5) Requires 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).)
6) 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) A list of any and all Internet identifiers he or she
established or used;
b) A list of any and all Internet service providers he or
she established or used; and
c) 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).)
7) Provides that a sex offender registrant must send written
notice within 24 hours to his or her registering law
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enforcement agency if one or more of the following occur:
a) The registrant "adds or changes his or her account" with
an Internet service provider;
b) The registrant "adds or changes an Internet identifier;"
or
c) Directs law enforcement agencies to make information
about any changes to a registrants' Internet information
available to DOJ. (Pen. Code § 290.014, subd. (b).)
8) Provides the following definitions applicable to
registration of Internet information:
a) "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.
b) "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.)
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2) Provides that a registered sex offenders who was convicted
of a offense in which use of the Internet was essential to the
commission of the offense must, in his or her annual
registrations, include the Internet identifiers he or she uses
for communicative purposes, as defined.
3) Defines an Internet identifier as an email address, user
name, screenname 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.
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
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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 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."
Background
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 (Proposition 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 sponsors of the Initiative appealed the
order to the Ninth Circuit Court of Appeals. On November 18,
2014, the Court of Appeals affirmed the district court order in
full. On April 7, 2015, the District Court issued an order
enjoining the Attorney General of California from enforcing the
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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.)
The opinion of the Ninth Circuit 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:
1)Any and all Internet identifiers established or used by the
person; 2)
Any and all Internet service providers used by the person; and
3) 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 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.)
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The court did find that the law burdened 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. ? [T]he 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 criminal sanctions. ? [] ...[T]he
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).)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
According to the Senate Appropriations Committee, major one-time
and ongoing costs (General Fund) of $2.3 million in 2015-16,
$1.6 million in 2016-17, and $1.3 million in 2017-18 and
annually thereafter for new activities by DOJ, including
modification of the existing California Sex and Arson Registry
(CSAR) system, implementation of a new case management system to
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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.
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.
SUPPORT: (Verified8/28/15)
AFSCME, Local 685
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
Californians Against Slavery
California Association of Code Enforcement Officers
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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: (Verified8/28/15)
American Civil Liberties Union
California Reform Sex Offender Laws
California Civil Liberties Advocacy
Prepared by:Jerome McGuire / PUB. S. /
8/31/15 18:48:43
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