BILL ANALYSIS Ó ----------------------------------------------------------------- |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 ****