BILL ANALYSIS
AB 179
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 179 (Portantino) - As Amended: March 31, 2009
SUMMARY : Mandates a person required to register as a sex
offender, or a person who is released as a sexually violent
predator (SVP), as specified, must report all electronic mail
(e-mail) addresses and instant messaging (IM) identities at the
time of registration. Specifically, this bill :
1)Requires the Department of Justice (DOJ) to make available to
the public, via an Internet Web site, all e-mail addresses and
IM identities that may be used by a person required to
register as a sex offender.
2)Requires a person required to register as a sex offender, as
specified, notify local law enforcement of any change in
e-mail address or IM identity within five working days of that
change.
EXISTING LAW :
1)Provides that the above information shall also be provided on
the Internet Web site as to any person who has ever been
adjudicated a SVP, as defined. [Penal Code Section
290.46(b)(3).]
2)States that the DOJ shall make available to the public via the
Internet Web site the offender's name and known aliases; a
photograph; a physical description, including gender and race;
date of birth; criminal history; and the community of
residence and ZIP code in which the person resides, but not
the specific address, for a person convicted of specified
offenses generally deemed less serious. [Penal Code Section
290.46(d)(1).]
3)Provides that the DOJ shall make a determination whether the
person has a prior or subsequent conviction of specified sex
offenses. For such a person with additional convictions, the
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address at which the person resides shall be made available.
[Penal Code Section 290.46(c)(1).]
4)Provides that a person may use the information disclosed
pursuant to the DOJ's sex offender Internet Web site only to
protect a person at risk. [Penal Code Section 290.46(l)(1).]
5)States that, except as otherwise provided, it is unlawful to
use any of the information that is disclosed pursuant to this
section for purposes related to health insurance, insurance,
loans, credit, employment, education, scholarships or
fellowships, housing or accommodations, and benefits,
privileges or services provided by any business establishment.
[Penal Code Section 290.46(l)(2).]
6)States every person who is required to register pursuant to
the Act who is living as a transient shall be required to
register for the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
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has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
or she does not need to report the new place or places
until the next required re-registration. [Penal Code
Section 290.011(a) to (d).]
7)States a person who is subject to the Sex Offender
Registration Act (SORA) shall register, or reregister if the
person has previously registered, upon release from
incarceration, placement, commitment, or release on probation
pursuant to existing law. This provision shall not apply to a
person who is incarcerated for less than 30 days if he or she
has registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual
update of registration that is required to occur within five
working days of his or her birthday, as specified, did not
fall within that incarceration period. The registration shall
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consist of all of the following:
a) A statement in writing signed by the person, giving
information as shall be required by the DOJ and giving the
name and address of the person's employer, and the address
of the person's place of employment if that is different
from the employer's main address.
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) Notice to the person that, in addition to the
requirements of the SORA, he or she may have a duty to
register in any other state where he or she may relocate.
e) Copies of adequate proof of residence, which shall be
limited to a California driver's license, California
identification card, recent rent or utility receipt,
printed personalized checks or other recent banking
documents showing that person's name and address, or any
other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable
future, the person shall so advise the registering official
and shall sign a statement provided by the registering
official stating that fact. Upon presentation of proof of
residence to the registering official or a signed statement
that the person has no residence, the person shall be
allowed to register. If the person claims that he or she
has a residence but does not have any proof of residence,
he or she shall be allowed to register but shall furnish
proof of residence within 30 days of the date he or she is
allowed to register. [Penal Code Section 290.015(a)(1) to
(5).]
8)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. [Penal Code Section 290.015(b).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "Children's
Internet safety is a rising concern in California. Social
networking sites allow teenagers to communicate with their
friends and others with ease while putting them at risk of
exposure to predators. Due to the fast-growing popularity of
these types of sites and the danger posed to minors, we must
act now to increase security on the Internet. Internet
predators target young people in chat rooms and on sites such
as MySpace and Friendster. Sites like these take substantial
security measures to protect children from those who would do
them harm. Even with this added protection, minors are at
risk. Predators lie about their age, assuming the identity of
teenagers and pretending to be 'friends'. Teenagers assume
they can trust these people and intentionally or
unintentionally reveal private, personal information.
"According to a 2005 study released by the University of New
Hampshire, 49% of high school students reveal their personal
information on their Web pages, such as their address, age or
name. 20% of middle school and high school students have met
strangers in person who they initially met over the Internet.
National Center for Missing and Exploited Children found 1 in
7 children admit receiving unwanted sexual solicitations on
line; only 5% report these solicitations to a parent or law
enforcement. California has the highest number of sex
offenders in the United States - there are over 63,000 who are
listed on the Megan's Law Web site. Clearly, California has a
duty to protect the public from these crimes.
"AB 179 was introduced to protect the public from sex predators.
We currently require sex offenders to tell us where they live
but don't require them to tell us where they are on the
internet. This bill requires sex offenders already required
to report physical addresses to report e-mail addresses on the
same form. The e-mail information would be available to the
public on the Megan's law Web site. Social networking sites
would be able to access the Web site and voluntarily undertake
steps to block sex predators from their sites.
"The online industry has sponsored Model Legislation to pursue
and control child predators. Contained in this language is
the proposal contained in AB 179 to require sex predators to
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report their e-mail addresses and social network usernames.
At least 21 states have adopted portions of this model
legislation."
2)Purpose and Requirements of Sex Offender Registration :
California was the first state to require sex offender
registration in 1947. The stated purpose for sex offender
registration is to deter offenders from committing future
crimes, provide law enforcement with an additional
investigative tool, and increase public protection. [Wright
vs. Superior Court (1997) 15 Cal.4th 521, 526; Alissa Pleau
(2007) Review of Selected 2007 California Legislation:
Closing a Loophole in California's Sex Offender Registration
Laws, 38 McGeorge L. Rev. 276, 277; Hatton vs. Bonner (2004)
365 F. 3rd 955, 961.] Penal Code Section 290 requires
life-time registration by persons convicted of specified sex
crimes that reside in, attend school or work in California.
[Penal Code Section 290(a).] Sex offenders are required to
register annually within five working days of his or her
birthday. [Penal Code Section 290(b).] If the offender has
no fixed address, he or she is required to register every 30
days. [Penal Code Section 290.011(a).] A person is also
required to notify law enforcement of any change of address
within five days of moving. (Penal Code Section 290.014.) A
person who fails to register as a sex offender within the
period required by law is guilty of a felony punishable by 16
months, 2 or 3 years. [Penal Code Section 290.018(b).]
In 1996, California enacted "Megan's Law" allowing the public to
access an address list of registered sex offenders. Before
2003, members of the public could only obtain the information
on the Megan's Law list by calling a "900" or visiting certain
designated law enforcement agencies. However, in 2003,
California required the DOJ to put the Megan's Law list of
offenders on a public access Web site with the offender's
address, photo and list of offenses. [See Penal Code Section
290.46(a).] For some offenders with less serious offenses,
only his or her ZIP code is listed. Now, a citizen can enter
his or her address and see if there are registered sex
offenders living in his or her community or even next door.
This bill states that in addition to other information, the
offender's e-mail address and IM identity must also be
included on the Web site. It is unclear how seeing an
offender's e-mail address will achieve the stated goals of sex
offender registration. This bill may also lead to direct
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attacks on persons registered as sex offenders if a viewer can
access a person's e-mail address and contact the offend. This
could impact a registrant's employment by creating a scenario
where he or she will have to register a work e-mail address
and may cause the registrant to be harassed at work or expose
the employer to harassment for employing a sex offender.
3)Updates to the Violent Crime Information Network (VCIN) : SB
172 (Alquist), Chapter 579, Statutes of 2007, required the DOJ
to renovate and update the VCIN on or before July 1, 2010.
DOJ is required to correct all software deficiencies affecting
data integrity and include designated fields for all mandated
sex offender data; consolidate and simplify program logic,
thereby increasing system performance and reducing system
maintenance costs; provide all necessary data storage,
processing, and search capabilities; provide law enforcement
agencies with fill Internet access to sex offender data and
photos; and, incorporate a flexible design structure to
readily meet future demands for enhanced system functionality,
including public access to sex offender information on the DOJ
Megan's Law Web site. [Penal Code Section 290.022(1) to (5).]
Requiring the DOJ to expand the database to include e-mail
addresses and IM identities will increase the workload to
update the VCIN which must be updated by July 2010.
4)Law Enforcement and DOJ Resources : Assume that a sex offender
registrant changes e-mail addresses frequently, or uses a
number of different e-mail addresses, each for a different
purpose. All of the e-mail addresses, and all of the changes,
are required to be reported to the registering law enforcement
agency, which is then required to transmit this information to
DOJ. In a state such as California (which has the largest
number of registered sex offenders in the country), the work
involved in merely processing this information would be
considerable. Do municipalities with large numbers of
registered sex offenders have the personnel and capacity to
obtain, process, and transmit all of this data? Because of
life-time registration, some registrant's may have been
crime-free for many years; moreover, their initial crime
requiring registration may have been nothing related to child
sexual abuse. Is receipt and processing of all of this
information regarding computer identifications a wise use of
limited resources? Does this bill require the sex offenders
to notify law enforcement that they are no longer using the
previously registered e-mail addresses and IM identities or in
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instances in which sex offender registrants have ceased using
Internet resources? Without such a requirement, law
enforcement will be burdened with countless pieces of outdated
and useless information. Moreover, DOJ has information that a
registrant is on probation or parole for only some registered
sex offenders but not all registered sex offenders. Further,
this information is contained in a different computer system
than the one that DOJ uses to maintain sex offender
registration information. Finally, DOJ is unlikely to have
information as to the actual identity of the assigned
probation or parole officer.
5)Existing Penalties for Luring a Child on the Internet : The
stated intent of this bill is protecting children from sex
offenders on-line. However, current law punishes this conduct
already. Existing law punishes contact with a minor with the
intent to commit a specified sex offense. Every person who
contacts or communicates with a minor, or attempts to contact
or communicate with a minor, who knows, or reasonably should
know, that the person is a minor with the intent to commit a
kidnapping, willful injury to a child, sodomy, lewd and
lascivious conduct, use of a minor in harmful matter, as
specified, or certain pornography-related offenses is punished
as if the offender attempted to commit the specified sexual
offense. For instance, if the offender contacted the minor
with the intent to commit lewd and lascivious conduct, as
specified, he or she may be punished by 18 months, 3 or 4
years in prison. [Penal Code Section 288.3(a).]
Additionally, Penal Code Section 288.4(a) states, "Any person
who, motivated by an unnatural or abnormal sexual interest in
children, arranges a meeting with a minor or a person he or
she believes to be a minor for the purpose of exposing his or
her genitals or pubic or rectal area, having the child expose
his or her genitals or pubic or rectal area or engaging in
lewd or lascivious behavior, shall be punished by up to one
year in the county jail or by fine of up to $5,000 or both
imprisonment and fine". If that person arranges to meet a
minor and goes to that meeting place, he or she shall be
punished by a term of two, three, or four years in state
prison. [Penal Code Section 288.4(b).] As noted above, these
statutes punish contact with a minor and do not require a
completed act. If the intention of this bill is to protect
children from online predators, why are the existing penalties
inadequate?
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6)First Amendment and a Chilling Effect on Free Speech : 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 (hereinafter Reno) (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 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, 501 U.S. 1030, 1048-1051 (1991.) 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
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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
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 page 885.)
The United States Supreme Court reaffirmed the principles
recited by Reno v. ACLU, supra, in Ashcroft v. ACLU, 542 U.S.
656 (2004), 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
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restrictive means among available, effective alternatives."
(Id.)
In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002),
the Supreme Court further stated that "the mere tendency of
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, 394
U.S. 557, 566 (1969.) 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.) Is it possible that requiring an offender to
register his or her e-mail or IM identity will create a
chilling effect on his or her on-line communication?
7)Constitutionality of Sex Offender Registration : Both the
California and the United States Supreme Court have ruled
that, generally, sex offender registration laws do not run
afoul of constitutional prohibitions against ex post facto,
double jeopardy and cruel and unusual punishment. [In re Leon
Casey Alva (2004) 33 Cal. 4th 254; Smith vs. Doe (2003) 538
U.S. 84.] In making such a finding, both courts applied the
Mendoza-Martinez test which outlines several guiding factors
in determining whether a law is punitive. The factors include
whether the "regulatory scheme" has been regarded in history
and tradition as punitive, imposes an affirmative disability
or restraint, promotes the traditional aims of punishment, has
a rational connection to a non-punitive purpose, or is
excessive with respect to its purpose. The state may not make
publicity and stigma an integral part of the objective of such
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regulation. [Kennedy vs. Mendoza-Martinez (1963) 372 U.S.
144.] Sex offender registration has been viewed as a
non-punitive regulatory scheme because it is designed only to
keep law enforcement and to some extent, the public aware of
dangers.
For the most part, Megan's Laws have been remarkably resilient
to constitutional challenges. While a few courts have held
that retroactive community-notification provisions are
punitive and thus violate the Ex Post Facto Clause, the
overall legal trend has been to find community notification
regulatory and not punitive in nature. However, several
courts have enjoined community-notification provisions under
the Fourteenth Amendment, holding that states must provide
minimum due-process protections, such as hearings and a state
burden of clear-and-convincing evidence for those hearings,
before infringing upon either state privacy rights or the
right not to be defamed by the government. The courts
generally recognized that the increased burden on the state
was necessitated by the relatively serious liberty interest of
the registrant when compared to the insubstantial value of
community notification to the state. As stated by the 3rd
Circuit:
"An erroneous underestimation of an individual's dangerousness
will not necessarily result in harm to protected groups.... On
the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm to
the offender: his conviction becomes public, he is officially
recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." [E.B. vs. Verniero (1997) 119 F.3rd 1077;
Garfinkle, COMMENT: Coming of Age in America: The
Misapplication of Sex-Offender Registration and Community -
Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163,
202.]
The California Court of Appeals for the 4th District held that
after the residency restrictions in Jessica's Law passed in
November of 2006, sex offender registration may no longer a
regulatory scheme but instead a form of punishment. The court
stated:
"We conclude, based on our analysis of the salient
Mendoza-Martinez factors, Jessica's Law's residency
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restriction has an overwhelming punitive effect. It
effectuates traditional banishment under a different name,
interferes with the right to use and enjoy real property near
schools and parks, and subjects housing choices to government
approval like parole or probation. It affirmatively restrains
the right to choose a home and limits the right to live with
one's family. It deters recidivism and comes close to imposing
retribution on offenders. While it has a non-punitive of
protecting children, it is excessive with regard to that
purpose. It would oust a person never convicted of any offense
against a child from his family home near a school or park,
forcing him to leave his family or consigning the family to
perpetually threatened transience. Relocation would be limited
to the few outskirts of town lacking a school or park. Yet the
residency restriction would allow a convicted child molester
to stroll past the school, eat ice cream in the park, and live
next door to small children-as long as he retreats at night to
housing far from a school or park. Building exclusion zones
around all schools and parks for all registered sex offenders
is excessively punitive.
"The severe punitive effect of Jessica's Law's residency
requirement clearly outweighs the proclaimed lack of
regulatory, non-punitive intent. [See Smith, supra, 538 U.S.
at p. 92 ('clearest proof' of punitive effect outweighs lack
of punitive intent).] We are not the first jurists to
recognize the overwhelming punitive effect of a residency
restriction. (See State v. Pollard, supra, 886 N.E.2d at p.
74 (residency restriction is punitive); Mikaloff, supra, 2007
WL 2572268 at pp. 9-10 (same); Leroy, supra, 828 N.E.2d at p.
793 (dis. opn. of Kuehn, J.) (same); Miller, supra, 405 F.3d
at p. 726 (conc. & dis. opn. of Melloy, J.) (same).]
"Because the residency restriction is punitive, its imposition
by the court increases the penalty for a nonsexual offense
beyond the prescribed statutory maximum based upon the jury
verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus,
the facts required to impose the residency restriction must be
found beyond a reasonable doubt by a jury." (Ibid.) [People
vs. Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by
the California Supreme Court]. The lower court did not
directly rule on the constitutionality of Jessica's Law or sex
offender registration and the California Supreme Court is
expected to rule in this issue this month.
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By placing greater requirements on those who are required to
register as a sex offender, it would be more likely seen as
punitive by the courts. If the scheme is designed to gravely
disable the offender or is seen as a way to further punish sex
offenders, courts may re-examine sex offender registration
with the attitude that it is all designed to further the
punish the offender and require it be proven to the jury as an
additional penalty. This may result in some offenders
escaping registration. In this bill, the burden on the
offender seems overwhelming and may result in direct and very
real harassment.
8)Argument in Support : According to MySpace and Fox Interactive
Media (FIM), "This legislation will provide sites like Myspace
and law enforcement another tool to make younger Internet
users safer when interacting on-line. Currently, convicted
sex offenders are required to register their physical
addresses and those that do not may be prosecuted and returned
to jail. As the social activity in on-line communities
increasingly mirrors the off-line world, our laws need to
change with the times. To protect all of our communities, we
must require convicted sex offenders to register their
physical addresses. Requiring convicted sex offenders to
register their e-mails help protect against the known sex
offenders. That is why this e-mail registration legislation
is necessary. FIM and MySpace are supporting this legislation
because we are continually working to make MySpace a safer
place for all our users. This legislation provides us and all
social networking sites with another tool to make our users
safer."
9)Arguments in Opposition :
a) According to the California Public Defenders Association
(CDPA), "It is a misdemeanor or a felony for a willful
violation of registration requirements. This bill
increases the registration requirements to include all
e-mail and instant messaging identities, and, any changes
thereof. As well, it requires the Department of Justice
to publish the e-mail addresses and instant messaging
identities of all 290 registrants on the Internet Web site.
"CPDA opposes this measure for all the following reasons:
"It is not supported by any empirical evidence or research
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showing that such measures would provide greater protection
for the public or prevent sex offenders from committing new
offenses.
"The legislation will serve to increase the technical
violations of the statute, sending 290 registrants back to
overcrowded jails and prisons, wasting public resources
without any showing that the expenditure of resources is
constructive.
"The increased burden on law enforcement and the Department
of Justice having to keep track of email addresses and
measuring identities, and any changes thereof, will take
funds and personnel away from their responsibilities of
addressing criminal conduct in society.
"Publication of e-mail addresses and instant messaging
identities encourages the pursuit of 'vigilante justice'
and harassment. This legislation appears to be aimed at
exacerbating the already difficult reintegration process
facing a 290 registrant. One 290 registrant in Northern
California was murdered following the perpetrator learning
of his address through the internet. Jessica's Law already
requires lifetime GPS along with registration and residency
restrictions.
"87% of people arrested for sex crimes had not previously
been convicted of a sex offense: 1) Indeed, the largest
analysis of available data (31,000 men) examining the
offending patterns of sex offenders revealed that only
5-14% of all convicted sex offenders reoffended with any
form of criminal sexual activity over a 15 year period. 2)
The United States Department of Justice statistics reveal
that after three years of having been released from prison,
only 5.3% of sex offenders were rearrested for any new sex
crime."
b) According to the American Civil Liberties Union , "We
have a number of concerns with the bill. First, the
additional reporting requirements expose existing
registrants to potential felony penalties. We are opposed
to additional registration obligations, especially those
that can result in additional state prison sentences for
non-criminal activity. Second, requiring the posting of
email addresses of certain registrants online will have a
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chilling impact on the free speech rights of these
ex-offenders. This provision is intended, at least in
part, to permit Internet websites to ban access by these
individuals to their websites. This raises significant
free speech concerns, including the right to speak
anonymously. It includes political speech, including
speech intended to advocate at least a modicum of
moderation in dealing with the issues of how society treats
sex offenders, as well as speech on other important issues
of the day if that speech requires the use of an email
address or instant messaging identity."
10)Prior Legislation : AB 841 (Portantino) of the 2007-08
Legislative Session, would have provided that, commencing July
1, 2010, any time a person required to register or re-register
as a sex offender, as specified, he or she shall provide, all
electronic mail addresses and IM addresses that he or she may
use or is using, and shall, within five working days of any
change, report the new electronic mail or IM address to the
law enforcement agency with which he or she is required to
register. These provisions to AB 841 were deleted and AB 841
was held on the Assembly Appropriations' Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
Fox Interactive Media
Myspace
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744