BILL ANALYSIS Ó
SB 448
Page 1
Date of Hearing: June 21, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
448 (Hueso) - As Amended January 4, 2016
As Proposed to be Amended in Committee
SUMMARY: Requires a person convicted of a felony, on or after
January 1, 2017, for which the person is required to register as
a sex offender, to register his or her Internet identifiers, as
defined, to law enforcement. Specifically, this bill:
SB 448
Page 2
1)Replaces sections enacted by Proposition 35, also known as the
Californians Against Sexual Exploitation Act (CASE Act),
approved by California voters on November 6, 2012, that have
been enjoined by pending litigation.
2)States that the provisions of this bill applies to a person
who is convicted of a felony on or after January 1, 2017,
requiring registration pursuant to the Sex Offender
Registration Act, if a court determines at the time of
sentencing that any of the following apply:
a) The person used the Internet to collect any private
information to identify a victim of the crime to further
the commission of the crime;
b) The person was convicted of specified sections
prohibiting human trafficking and used the internet to
traffic a victim of the crime; or,
c) The person was convicted of specified sections
prohibiting child pornography and used the internet to
prepare, publish, distribute, send, exchange, or download
the obscene matter or matter depicting a minor engaging in
sexual conduct, as defined.
3)Defines, for purposes of this bill, "Internet identifier" to
mean "any electronic mail address or user name used for
instant messaging or social networking that is actually used
for direct communication between users on the Internet in a
manner that makes the communication not accessible to the
general public." "Internet identifier" does not include
Internet passwords, date of birth, social security number, or
PIN number.
4)Defines, for purposes of this bill, "private information" to
mean "any information that identifies or describes an
individual, including, but not limited to, his or her name;
electronic mail, chat, instant messenger, social networking,
or similar name used for Internet communication; social
SB 448
Page 3
security number; account numbers; passwords; personal
identification numbers; physical description; physical
location; home address; home telephone number; education;
financial matters; medical or employment history; and
statements made by, or attributed to, the individual."
5)Requires persons subject to the bill's provisions to send
written notice to the law enforcement agency or agencies with
which he or she is currently registered when he or she
establishes or changes an Internet identifier within 30
working days of the addition or change, as specified, and
requires the law enforcement agency to make this information
available to the Department of Justice (DOJ).
6)Specifies that a person who fails to provide his or her
Internet identifiers, as required by this bill, is guilty of a
misdemeanor, punishable by imprisonment in the county jail not
to exceed six months.
7)Excludes Internet identifiers from the information that law
enforcement may disclose to the public regarding a person
required to register as a sex offender when necessary to
ensure the public safety concerning that specific person.
8)Provides, notwithstanding any other law, a designated law
enforcement entity shall only use an Internet identifier or
release that Internet identifier to another law enforcement
entity, for the purpose of investigating a sex-related crime,
a kidnapping, or human trafficking.
9)Authorizes a designated law enforcement entity to disclose or
authorize persons or entities to disclose an Internet
identifier if required by court order.
10)States the Legislative finding and declaration that in order
to protect the rights afforded by the First Amendment to the
United States Constitution, it is necessary that Internet
identifier information provided to law enforcement agencies by
registrable sex offenders as part of their registration not be
SB 448
Page 4
made generally available to the public.
11)States that it is the intent of the Legislature to further
the objectives of the CASE Act, an initiative measure enacted
by the approval of Proposition 35 at the November 6, 2012,
statewide general election, by amending its provisions to
conform with the requirements of the court in the case of Doe
v. Harris (Case numbers 13-15263 and 13-15267).
EXISTING LAW:
1)Requires 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.)
2)Provides generally that a person's sex offender registration
must be updated annually, within five working days of a
registrant's birthday. (Pen. Code, § 290.012, subd. (a).)
3)Specifies that a transient sex offender registrant must
register in the jurisdiction where the registrant is
physically present every 30 days, as specified, as well as
annually, within five working days' of the registrant's
birthday. (Pen. Code, § 290.011.)
4)States that sex offender registrants must provide the
following information:
a) A signed statement giving information as required by the
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;
SB 448
Page 5
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.)
5)Provides that it is a crime for any person who is required to
register to willfully violate the requirements of the Sex
Offender Registration Act. (Pen. Code § 290.018.)
6)States that a person who is required to register as a sex
offender based on a misdemeanor conviction who willfully
violates any requirement of the Sex Offender Registration Act
is guilty of a misdemeanor. (Pen. Code § 290.018, subd. (a).)
7)Provides that a person who is required to register as a sex
offender based on a felony conviction who willfully violates
any requirement of the Sex Offender Registration Act is guilty
of a felony. (Pen. Code § 290.018, subd. (b).)
8)Specifies that any person who fails to provide proof of
residence regardless of the offense upon which the duty to
register is based, is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding six months. (Pen.
Code, § 290.018, subd. (h).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "In November of
2012 California voters overwhelmingly approved Proposition 35,
also known as the Californians Against Sexual Exploitation Act
(CASE Act). The act is the most popular initiative in
California's history, and was approved with 81% of the vote
and is the first initiative to receive over 10 million votes.
California voters wanted to insure that sex offenders provide
their online identities to law enforcement. Unfortunately, the
SB 448
Page 6
9th Circuit Court of Appeals has rendered that portion of the
proposition unconstitutional. This bill addresses those
constitutional concerns.
"The internet, with all of its benefits, has become a place
for sexual predators to thrive. In June of this year the
federal government in Operation Broken Heart arrested 1140
child predators in 41 states that were using the internet to
distribute child pornography, entice children for sexual
purposes, sell children into prostitution, and engage in
sexual tourism. This bill would ensure that sex offenders who
have already used the internet in the commission of their
crime provide their online identifiers to law enforcement.
This vital tool will assist law enforcement if they ever have
to investigate these individuals again for future violations."
2)Sex Offender Registration: Existing law specifies that if a
person has been convicted of a sexually based offense, he or
she is required to register as a sex offender. (Pen. Code, §
290, subd. (c) (includes all offenses where registration is
required if committed on or after July 1, 1944).) California
requires sex offenders to register for life, unlike some other
jurisdictions that have a tiering system in place that
dictates the duration of time an offender must register as a
sex offender. This means that even after a person has
completed probation or parole, the person will still be
monitored as a sex offender for the rest of his or her life.
(Pen. Code, § 290, subd. (b).)
"The purpose of [Penal Code Section 290] is to assure that
persons convicted of the crimes enumerated therein shall be
readily available for police surveillance at all times because
the Legislature deemed them likely to commit similar offenses
in the future. The statute is thus regulatory in nature,
intended to accomplish the government's objective by mandating
certain affirmative acts." (In re Leon Casey Alva (2004) 33
Cal.4th 254, 264.)
The registration statute does not distinguish crimes based on
SB 448
Page 7
severity and instead requires any person convicted of a listed
crime to register annually within five days of his or her
birthday. (Pen. Code, § 290.012, subd. (a).) Transient
offenders, however, must register every 30 days in addition to
the annual registration. (Pen. Code, § 290.011.) Although
most registerable offenses are felonies, there some alternate
felony/misdemeanor penalties and a few straight misdemeanors.
(Pen. Code, § 243.4 (sexual battery); Pen. Code, § 266c
(obtaining sexual consent by fraud); Pen. Code, §§ 311.1,
311.2(c), 311.4, 311.11 (child pornography); Pen. Code, §
647.6 (annoying or molesting a child); and Pen. Code, §
314(1)(2) (indecent exposure).)
3)Proposition 35: In November of 2012, California voters
enacted Proposition 35, which modified many provisions of
California's human trafficking laws. Specifically, Proposition
35 expanded the definition of human trafficking and increased
criminal penalties and fines for human trafficking offenses.
The proposition specified that the fines collected are to be
used for victim services and law enforcement. In criminal
trials, the proposition makes evidence of sexual conduct by a
victim of human trafficking inadmissible for the purposes of
attacking the victim's credibility or character in court. The
proposition also lowered the evidentiary requirements for
showing of force in cases of minors.
Proposition 35 also required all registered sex offenders to
provide the names of their Internet providers and identifiers
to local law enforcement agencies. Such identifiers include
e-mail addresses, user names, screen names, or other personal
identifiers for Internet communication and activity. The
proposition required a registrant who changes his or her
Internet service account or changes or adds an Internet
identifier to notify law enforcement within 24 hours of such
changes. (See Proposition 35 voter guide available at the
Secretary of State's website,
< http://www.voterguide.sos.ca.gov/past/2012/general/proposition
s/35/analysis.htm > (as of Apr. 22, 2015.)
SB 448
Page 8
Immediately following the passage of Proposition 35, a District
Court granted an order enjoining the implementation of the
parts of the proposition that requires registered sex
offenders to provide identifying information about their
online accounts to local law enforcement agencies. On
November 18, 2014, the Ninth Circuit Court affirmed the
District Court's order granting the preliminary injunction,
concluding that "Appellees are likely to succeed on the merits
of their First Amendment challenge." (See Doe v. Harris, 2014
U.S. App. LEXIS 21808 (9th Cir. Nov. 18, 2014).)
Due to litigation, the provisions in Proposition 35 related to
Internet identifiers have never gone into effect. Currently,
these provisions are pending a permanent injunction because
the court has declared them to violate the First Amendment of
the United States Constitution and therefore cannot be
enforced. (See Order Staying Case of April 7, 2015 and
Scheduling Order of October 26, 2015, 12-cv-05713-THE, Doe v.
Harris.) Should this bill be signed into law, the bill's
contents will likely have to be reviewed by the lower court
that issued the original injunction to determine whether the
Constitutional concerns have been addressed.
4)First Amendment Considerations: The First Amendment to the
United States Constitution guarantees to all citizens the
right to freedom of speech and association. The pertinent
Clause of the First Amendment, applied to the States through
the Fourteenth amendment. (Thornhill v. Alabama, 310 U.S. 88,
95 (1940) provides that "Congress shall make no law . . .
abridging the freedom of speech . . . . " (United States
Constitution. Amend. I.) Generally, sex offenders who have
completed their terms of imprisonment and completed parole
have all of the other rights and benefits accorded to all
citizens.
In Reno v. ACLU (1997) 521 U.S. 844, the Supreme Court stated
that "The Internet is an international network of
interconnected computers . . . enab[ling] tens of millions of
people to communicate with one another and to access vast
SB 448
Page 9
amounts of information from around the world. The Internet is
a unique and wholly new medium of worldwide human
communication." (Id. at 850.)
"Anyone with access to the Internet may take advantage of a
wide variety of communication and information retrieval
methods. These methods are constantly evolving and difficult
to categorize precisely. [A]ll of these methods can be used
to transmit text; most can transmit sound, pictures and moving
video images. Taken together, these tools constitute a unique
medium - known to its members as cyberspace - located in no
particular geographical location but available to anyone,
anywhere in the world, with access to the Internet."
Following its expansive discussion of the many benefits of the
Internet, the Court turned its attention to First Amendment
issues, finding that the "CDA [Communications Decency Act] is
a content-based regulation of speech. The vagueness of such a
regulation raises special First Amendment concerns because of
its obvious chilling effect on free speech," citing Gentile v.
State Bar of Nevada (1991) 501 U.S. 1030, 1048-1051. The
Court further stated that the CDA, as a criminal statute, "may
well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images." As a
practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague
regulations, poses greater First Amendment concerns than those
implicated by the civil regulations reviewed in Denver Area
Educational Telecommunications Consortium, Inc. v. F.C.C., 518
U.S. 727 (1996).
"Given the vague contours of the statute, it unquestionably
silences some speakers whose messages would be entitled to
constitutional protection. The CDA's burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. We are persuaded that the CDA
lacks the precision that the First Amendment requires when a
statute regulates the content of speech. In order to deny
minors access to potentially harmful speech, the CDA
SB 448
Page 10
effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted
to serve." (Id. at 874.)
The Court further held that the Government may not reduce the
adult population to only what is fit for children.
"Regardless of the strength of the government's interest in
protecting children, the level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a
sandbox," citing Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 74-75 (1983).
The Court concluded, "As a matter of constitutional tradition,
in the absence of evidence to the contrary, we presume that
governmental regulation of the content of speech is more
likely to interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of
expression in a democratic society outweighs any theoretical
but unproven benefit of censorship." (Id at 885.)
The United States Supreme Court reaffirmed the principles
recited by Reno v. ACLU, supra, in Ashcroft v. ACLU (2004) 542
U.S. 656, when it stated, "The purpose [of the strict scrutiny
test] is to ensure that speech is restricted no further than
necessary to achieve the goal, for it is important to assure
that legitimate speech is not chilled or punished. For that
reason, the test does not begin with the status quo of
existing regulations, then ask whether the challenged
restriction has some additional ability to achieve Congress'
legitimate interest. Any restriction on speech could be
justified under that analysis. Instead, the court should ask
whether the challenged regulation is the least restrictive
means among available, effective alternatives." (Id.)
In Ashcroft v. The Free Speech Coalition (2002) 535 U.S. 234,
the Supreme Court further stated that "the mere tendency of
SB 448
Page 11
speech to encourage unlawful acts is not a sufficient reason
for banning it. The government 'cannot constitutionally
premise legislation on the desirability of controlling a
person's private thoughts,' " citing Stanley v. Georgia (1969)
394 U.S. 557, 566. First amendment freedoms are most in
danger when the government seeks to control thought or to
justify its laws for that impermissible end. The right to
think is the beginning of freedom, and speech must be
protected from the government because speech is the beginning
of thought.
"[T]he government may not prohibit speech because it increases
the chances that an unlawful act will be committed at some
indefinite future time," Ashcroft v. The Free Speech
Coalition, supra, at 253, citing Hess v. Indiana, 414 U.S.
105, 108 (1973). "[T]he government has shown no more than a
remote connection between speech that might encourage thoughts
or impulses and any resulting child abuse. Without a
significantly stronger, more direct connection, the Government
may not prohibit speech on the ground that it may encourage
pedophiles to engage in illegal conduct." (Ashcroft, supra,
at 253-254.)
The provisions in the CASE Act that this bill seeks to replace
have been found to violate the First Amendment. (Doe v.
Harris (9th Cir. 2014) 772 F.3d 563.) To begin its analysis,
the Ninth Circuit Court of Appeal determined the Act to be a
content-neutral restriction, even though the Act singles out
registered sex-offenders as a category of speakers. (Id. at
575.) The Court's rationale was that since the restrictions in
the Act did not target certain types of speech, it was
content-neutral, thus intermediate scrutiny was applied. In
order to survive this standard, the Act must be "narrowly
tailored to serve a significant governmental interest, and . .
. leave open ample alternative channels for communication of
the information." (Id. at 576-577, citing Ward v. Rock Against
Racism (1989) 491 U.S. 781, 791.) The Court acknowledged that
California has a substantial interest in protecting children
from sex offenders who use the internet to facilitate the
SB 448
Page 12
internet to facilitate that exploitation. (Id. at 577.)
However, the statute must not "burden substantially more
speech than is necessary to further the government's
legitimate interests." (Ibid.)
The Court concluded that the statute violated the First
Amendment by unnecessarily chilling speech in at least three
ways: (1) the Act does not make clear what sex offenders are
required to report, (2) there are insufficient safeguards
preventing the public release of the information sex offenders
do report, and (3) the 24-hour reporting requirement is
onerous and overbroad. (Ibid.) This bill narrows the
applicability of its requirements and places safeguards on
when this information should be disclosed in order to address
these specific concerns.
5)Constitutional Challenges to Similar Policy in Other
Jurisdictions: Recently similar statutes have been found to
be unconstitutional in Illinois, Michigan and Nebraska. In
Illinois, a state court ruled that an Illinois law that
requires all email addresses and sites a sex
offender uses or plans to use, including Facebook and Ebay, to
be registered with police is overly broad and therefore
unconstitutional. The judge that issued the order stated that
"ordering a sex offender to report all access to Internet
sites 'clearly chills offenders from engaging in expressive
activity that is otherwise perfectly proper, and the statute
is therefore insufficiently narrow.'" He additionally noted
that the purpose of restrictions on sex offenders who live in
the community "are not meant as a penalty, but for the safety
of those living around them." (Brady-Lunny, "Judge: Sex
Offender Rule Unconstitutional"
< http://www.pantagraph.com/news/judge-sex-offender-requirement-
is-unconstitutional/article_8c569d46-b7a8-5175-8359-dfe58c0ab7a
6.html > (June 11, 2015).)
Michigan and Nebraska have also had similar statutes enjoined
or held unconstitutional. (Doe v. Snyder , 2015 U.S. Dist.
LEXIS 41675 (E.D.Mich. Mar. 13, 2015); (Doe v. Nebraska
SB 448
Page 13
(D.Neb. 2012) 898 F. Supp. 2d 1086).) On the other hand, the
Tenth Circuit Court found that Utah's statute did not violate
the Constitution. (Doe v. Schurtleff (10th Cir. 2010) 628
F.3d 1217.) The rulings by courts in these other
jurisdictions are not binding on California courts. Thus,
whether this bill adequately addresses the Ninth Circuit
Court's concerns raised in Doe v. Harris (2014 U.S. App. LEXIS
21808 (9th Cir. Nov. 18, 2014)) is yet to be determined.
6)Argument in Support: According to Safer California
Foundation, a co-sponsor of this bill, "In order to provide
law enforcement with a tool to investigate sex trafficking
online, Proposition 35 required all registered sex offenders
in California to submit their Internet identifiers to the
local law enforcement agencies in the jurisdiction in which
they are registered.
"Between July 1, 2010 and June 30, 2012, California's nine
anti-trafficking task forces initiated 2,552 investigations,
identified 1,277 victims of human trafficking, and arrested
1,798 individuals. 72% were Americans.
"In the age of the internet, human trafficking has become
increasingly easier for traffickers to find and abuse their
victims. According to a 2012 report by the Attorney General,
'The business of sex trafficking, in particular, has moved
online. Traffickers use the Internet to increase their reach,
both in recruiting victims through social media and finding
clients via advertisement posted on classified advertising
websites."
7)Argument in Opposition: According to California Reform Sex
Offender Laws, "Requiring an individual to reveal his or her
internet identifier is a violation of that individual's
constitutional right of free speech. Specifically, it is a
violation of the First Amendment of the U.S. Constitution
which protects a person's right to exercise free of speech
SB 448
Page 14
'anonymously.'
"The U.S. Supreme Court recently determined: 'Anonymity is a
shield from the tyranny of the majority. It thus exemplifies
the purpose behind the Bill of Rights and of the First
Amendment in particular: to protect unpopular individuals from
retaliation - and their ideas from suppression - at the hand
of an intolerant society.' McIntyre v. Ohio Elections
Commission, 514 U.S. 334, 357 (1995)
"If SB 448 becomes law, the anonymity of registered citizens,
who are unpopular individuals in today's intolerant society,
would be suppressed. That is, they will be unable to express
their opinions on topics such as SB 448 due to fear of
retaliation.
"The right of anonymous speech is of great importance in the
context of internet sites. The U.S. Supreme Court has
strongly implied and lower appellate courts have affirmatively
ruled that when accessed from one's home the internet
constitutes a "public forum" for purposes of the First
Amendment. Doe v. Harris, 772 F.3d 563, 574 (9th Cir. 2014),
quoting Reno v. ACLU, 521 U.S. 844, 870 (1997)."
8)Prior Legislation:
a) AB 755 (Galgiani), of the 2011-12 Legislation Session,
would have required every registered sex offender to inform
the law enforcement agency with which he or she last
registered of all Internet identifiers or service providers
and must sign a statement acknowledging this
responsibility. AB 755 failed passage in this Committee.
b) AB 543 (Torres), of the 2011-12 Session, would have made
it a misdemeanor, punishable by up to six months in the
county jail and/or a fine of not more than $1,000, for any
person who is granted probation or placed on parole for the
conviction of a crime that requires him or her to register
as a sex offender to use any Internet social networking Web
SB 448
Page 15
site, as defined, during that period of probation or parole
if the victim of the offense was under 18 years of age at
the time of the offense and the Internet was used in the
commission of the crime. AB 543 failed passage in the
Committee on Appropriations.
c) AB 653 (Galgiani), of the 2011-12 Legislation Session,
would have required a person required to register as a sex
offender report his or her Internet accounts and Internet
identifiers, defined to include e-mail addresses and
designations used for the purposes of chatting, instant
messaging, social networking, or other similar Internet
communication, to local law enforcement. AB 653 died in
this Committee.
d) AB 179 (Portantino), of the 2009-10 Legislative Session,
would have mandated a person required to register as a sex
offender, or a person who is released as a sexually violent
predator, as specified, to report all e-mail addresses and
IM identities at the time of registration. AB 179 was
considerably narrowed to address costs and was ultimately
gutted and amended into a bill related to corporate
taxation laws.
e) AB 1850 (Galgiani), of the 2009-10 Legislative Session,
provided that any person sentenced to probation or released
on parole for an offense that requires him or she to
register as a sex offender, as specified, from using the
Internet under certain circumstances. AB 1850 was held on
the Assembly Appropriations Committee's Suspense File.
f) AB 2208 (Torres), of the 2009-10 Legislative Session,
provided that, commencing January 1, 2011, in any case in
which a defendant is granted probation or parole for an
offense that requires him or her to register as a sex
offender, as specified, and either the victim of the
offense was under 18 years of age at the time of the
offense, or the Internet was used in the commission of the
crime, the defendant shall be prohibited from accessing an
SB 448
Page 16
Internet social networking Web site during the period of
time he or she is on probation or parole. AB 2208 was held
on the Assembly Appropriations Committee's Suspense file.
g) SB 1204 (Runner), of the 2009-10 Legislative Session,
requires every registered sex offender to inform the law
enforcement agency with which he or she last registered of
all of his or her online addresses, e-mail addresses, and
IM user names by December 31, 2011 and thereafter at the
time of original registration and within 30 days of
establishing a new online account. This information, may,
upon request, be shared with the DOJ or other law
enforcement agencies. SB 1204 was held on the Assembly
Appropriations Committee's Suspense File.
h) AB 841 (Portantino), of the 2007-08 Legislative Session,
would have provided that any time a person required to
register or re-register as a sex offender, as specified, he
or she shall provide all e-mail addresses and IM addresses
that he or she may use or is using. AB 841 was
significantly narrowed in Assembly Appropriations Committee
and ultimately gutted and amended in the Senate into a bill
related to health care.
REGISTERED SUPPORT / OPPOSITION:
Support
Safer California Foundation (Co-Sponsor)
San Diego Police Officers Association Inc. (Co-Sponsor)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California Against Slavery
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
Crime Victims United of California
Los Angeles County District Attorney's Office
Los Angeles County Probation Officers' Union AFCSME, Local 685
SB 448
Page 17
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
Peace Officers Research Association of California
Sacramento County District Attorney's Office
Riverside Sheriffs' Association
Opposition
California Reform Sex Offender Laws
Legal Services for Prisoners with Children
15 private individuals
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744