BILL ANALYSIS                                                                                                                                                                                                    






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        SB 448|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   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.








                                                                     SB 448  
                                                                    Page  2




          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.)









                                                                     SB 448  
                                                                    Page  3


          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  







                                                                     SB 448  
                                                                    Page  4


               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  







                                                                     SB 448  
                                                                    Page  5


            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.)







                                                                     SB 448  
                                                                    Page  6




          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  







                                                                     SB 448  
                                                                    Page  7


            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  







                                                                     SB 448  
                                                                    Page  8


          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.) 







                                                                     SB 448  
                                                                    Page  9




          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  







                                                                     SB 448  
                                                                    Page  10


          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







                                                                     SB 448  
                                                                    Page  11




          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








                                                                     SB 448  
                                                                    Page  12



                                   ****  END  ****