BILL ANALYSIS
AB 1850
Page 1
Date of Hearing: April 20, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1850 (Galgiani) - As Introduced: February 12, 2010
As Proposed to be Amended in Committee
SUMMARY : Prohibits any person sentenced to probation or is
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. Specifically, this bill :
1)States that, commencing January 1, 2011 an offender on
probation or parole for an registerable sex offence and either
the victim of the offense was under 18 years of age at the
time of the offense, or the person has been deemed to pose a
high risk to the public for committing sex crimes, as
determined by the State Authorized Risk Assessment Tool for
Sex Offenders (SARATSO), the court or parole authority shall
require as a condition of probation or parole that the person
be prohibited from using the Internet.
2)Provides that a person on probation or parole, as specified,
shall be prohibited from using the Internet to do any of the
following:
a) To access pornographic material.
b) To access a social networking Internet Web site.
c) To communicate with other individuals or groups for the
purpose of promoting sexual relations with minors.
d) To communicate with a minor when the person convicted of
the sex offense is an adult, provided the court or the
parole authority may, in its discretion, permit the
convicted person to use the Internet to communicate with a
minor if the convicted person is the parent of the minor
and is not otherwise prohibited from communicating with the
minor.
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3)Defines "social networking Web site" as an Internet Web site
providing or offering a service on the Internet that permits
minors to access, meet, congregate, or communicate with other
users for the purpose of social networking and defines "minor"
as a person under 18 years of age and an "adult" is a person
18 years of age or over.
EXISTING LAW :
1)Requires persons convicted of specified sex offenses to
register, or reregister if the person has been previously
registered, upon release from incarceration, placement,
commitment, or release on probation. States that the
registration shall consist of all of the following [Penal Code
Section 290.015(a)]:
a) A statement signed in writing by the person, giving
information as shall be required by the Department of
Justice (DOJ) and giving the name and address of the
person's employer, and the address of the person's place of
employment, if different from the employer's main address;
b) Fingerprints and a current photograph 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
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
2)States every person who is required to register, as specified,
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
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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
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
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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).]
3)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. [Penal Code Section 290.018(a)(b).]
4)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).]
5)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, 2 or 3 years. [Penal Code
Section 290.018(a)(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Internet is
one of the most helpful technological inventions of the
century; however, it has also provided an alternative avenue
for sex offenders to pray on California's youth. Offenders
are now moving from the streets of California to the virtual
world of the World Wide Web. In this Internet age, it is time
California modernize its laws to protect the safety and
wellbeing of California's children - our future. AB 1850 -
e-STOP of California - is an important bill that will
establish protections against sexual predators so that
AB 1850
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Californians - especially our children - can more safely use
the Internet. The bill will prohibit high-risk sex offenders
on parole from using the Internet to (1) access pornographic
material; (2) access social networking websites; (3)
communicate with others to promote sexual relations with
minors; and (4) communicate with minors."
2)Sex Offense 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. [Penal Code
Section 290(c) (includes all offenses where registration is
required if committed on or after July 1, 1944).] The purpose
of sex offender registration is to provide law enforcement
with a list of offenders who may be likely suspects in the
event of another sex offense.
"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.] Unlike other states, California requires
lifetime registration for all listed sex offenses. [Penal
Code Section 290(b).]
The registration statute does not distinguish crimes based on
severity and instead requires all persons convicted of a
listed crime to register annually within five days of his or
her birthday and for the rest of his or her life. [Penal Code
Section 290.012(a).] Although most registerable offenses are
felonies, there some alternate felony/misdemeanor penalties
and a few straight misdemeanors. [See Penal Code Section
243.4 (sexual battery); Penal Code Section 266c (obtaining
sexual consent by fraud); Penal Code Section 311.1, 311.2(c),
311.4, 311.11 (child pornography); Penal Code Section 647.6
(annoying or molesting a child); and, Penal Code Section
314(1)(2) (indecent exposure).]
3)Existing law Related to Persons on Probation or Parole :
Several states have placed Internet restrictions or
prohibitions on sex offenders on probation or parole.
Although such restrictions must have a clear nexus or be
reasonably related to the offense, Internet restrictions for
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probationers and parolees have withstood constitutional
attack. [See U.S. vs. Thielemann (3rd Cir. 2009) 575 F.3rd
265; U.S. vs. Paul (5th Cir. 2001) 274 F. 3rd 155; U.S. vs.
Granger (4th Cir. 2004) 117 F. App 247.]
California law has long held that probationers and parolees have
fewer constitutional rights than ordinary people, although
conditions of probation or parole must be "reasonable since
parolees and probationers retain constitutional protections
against arbitrary and oppressive official action." [In re
Ramon Stevens (2004) 119 Cal.App.4th 1228, 1233; Morrissey vs.
Brewer (1972) 408 U.S. 471, 477.] The Ninth Circuit in U.S.
vs. Reardon affirmed the imposition of a probation condition
prohibiting the defendant from possessing or using a computer
with access to any online service without prior approval of
the probation officer finding that the restriction was
reasonably related to the offense of shipping child
pornography across state lines. [U.S. vs. Rearden (9th Cir.
2003) 349 F.3rd 608.]
However, the California Court of Appeals rejected an Internet
ban on a paroled child molester because the restriction was
not so narrowly tailored as to avoid suppression of protected
speech.
The Court held, "Here, BPT [Board of Prison Terms, now Board of
Parole Hearings] was legitimately concerned that a released
child molester's unfettered access to a computer might result
in criminal conduct. In contrast to cases such as Crandon,
Paul and Rearden, the broad prohibition on use of the computer
and Internet bore no relation to Stevens's conviction for
child molestation and imposed a greater restriction of his
rights than was reasonably necessary to accomplish the state's
legitimate goal.
"BPT, concerned about Stevens's illegitimate use of the
Internet, sought to prevent his having any access to
cyberspace. One can understand the dilemma BPT faced.
[C]yberspace defies boundaries; it offers unlimited access.
'[T]he openness of this architecture means this: That there
is no "natural" or simple or "automatic" way to keep people
out because there are no natural or real borders that close
off access to those who should not have access.' [internal
citation omitted.]
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"But BPT's task was less daunting than it appeared to be. A
focused restriction could be enforced by unannounced
inspections of material stored on Stevens's hard drive or his
removable disks [internal citation omitted]. BPT might also
have explored the implementation of monitoring software which
automatically generates an e-mail to the parole officer should
the parolee engage in an illegal use of his computer. [See,
e.g., McKay, Guardrails on the Information Superhighway:
Supervising Computer Use of the Adjudicated Sex Offender
(2003) 106 W.Va. L. Rev. 203, 242.] Finally, BPT can verify
Stevens's Internet usage with a sting
operation-surreptitiously inviting him to respond to
government-placed Internet ads for pornography [internal
citation omitted].
"BPT cannot, of course, monitor every aspect of Stevens's
behavior. Other than a prohibition on his use of a computer
to access pornographic sites, BPT would most likely be unable
to monitor Stevens's use of someone else's computer. But like
any other parolee, Stevens's unauthorized use of any computer
would be at his own peril.
"As observed by Sir William S. Gilbert, 'a felon's capacity for
innocent enjoyment is just as great as any honest man's.'
(Gilbert & Sullivan, Pirates of Penzance (1880) act II.)
Rehabilitation of a felon entails integration into society
where he or she can be self-supporting. In appropriate cases,
access to the Internet assists parolees to become law-abiding
citizens." [In re Stevens (2004) 119 Cal.App.4th 1228, 1239.]
This bill appears consistent with existing standards related
to terms of probation or parole.
4)Other States : Several other states and the Federal Government
have enacted legislation aimed at regulating sex offender use
of the Internet or social networking sites. New York, in
particular, enacted requirements that a registered sex
offender provide the names of any Internet accounts or screen
names used by the offender. [NYC CLS Correc. Section
168-a(1)(b).] New York also required the relevant state
agency to provide any authorized Internet entity with a list
of Internet identifiers for all registered sex offenders.
Internet entities may prescreen a new member or remove any
existing members who are registered as sex offenders. [NYC
CLS Correc. Section 168-b(A).] New York also creates a
mandatory condition of probation for a sex offender who
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commits an offense against a person under the age of 18 and
designated a "level three" sex offender (meaning a high risk
of re-offense). [NYC CLS Correc. Section 65.10(4a); See also
NYC CLS Correc. 168-l(c).]
Florida, Nevada and New Jersey restricted Internet access only
for persons on probation or parole. Nevada states that "if a
defendant is convicted of a sexual offense and the court
grants probation or suspends the sentence, the court shall . .
. order as a condition of probation or suspension of sentence
that the defendant . . . not possess any electronic device
capable of accessing the Internet and not access the Internet
through any such device or any other means, unless possession
of such device or access is approved by the parole and
probation officer assigned to the defendant". [Nev. Rev.
Stat. Ann. Section 176A.410(1)(g); See also Brant, Comment:
Sentencing "Cyber Sex Offenders": Individual Offenders Require
Individualized Conditions When Courts Restrict Their Computer
Use and Internet Access (hereinafter Brant), 58 Cath. U.L.
Rev. 779, 796.]
Florida law provides that a court must impose a prohibition on
accessing the Internet or other computer services until the
offender's sex offender treatment program, after a risk
assessment is completed, approves and implements a safety plan
for the offender's accessing or using the Internet or other
computer services. [FLA. Stat. Ann. Section 948.30(1)(h).]
New Jersey's sex offender registration law states, "A person
required to register under this act shall provide the
appropriate law enforcement agency with information as to
whether the person has routine access to or use of a computer
or any other device with Internet capability. A person who
fails to notify the appropriate law enforcement agency of such
information or of a change in the person's access to or use of
a computer or other device with Internet capability or who
provides false information concerning the person's access to
or use of a computer or any other device with Internet
capability is guilty of a crime of the fourth degree." [NJ
Stat. Ann. Section 2C: 7-2(d)(2); Brant at 796.]
Federal law requires all sex offenders to provide Internet
identifiers, such as e-mail addresses and designations to the
National Sex Offender Registry. (42 U.S.C. 16915a.) "While
the federal laws that require information sharing and
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reporting by Web site operators do not affect offenders as
severely as those state laws that entirely prohibit computer
or Internet access, all of these laws undoubtedly demonstrate
an ever-increasing trend by federal and state legislatures in
tightening the rope on convicted sex offenders." [Brant at
796.] As noted above, California has lifetime registration
for a broad range of offenses and, as a result, California has
well over 100,000 registered sex offenders. Although other
states have enacted these types of restrictions, other states
may be dealing with a significantly smaller number of
registered sex offenders and are able to more narrowly direct
terms of registration to only some offenders. California does
not have "tiered" registration in which only a small class of
persistent or violent offenders register for life.
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).]
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6)Argument in Support : According to Facebook , "Protecting the
people that use out service, especially many teenagers, has
always been a top priority for Facebook. That is why we have
consistently supported bills that criminalize usage of social
networking sites by RSOs. Facebook devotes significant
resources to developing innovative and complex system to
proactively monitor the site and its users, including those
not on a sex offender registry, for suspicious activity (such
as contacting minors or users of predominately one gender).
We also have established a large team of professional
investigators to evaluate reports of potential abuse,
including those surfaced by our system or from users.
"Additionally, we have worked proactively with states' attorneys
general to run their lists of registered sex offenders against
our user base. The best and most useful to these lists came
from New York where a recent law-similar to the bill you
propose-requires collection of internet identifiers for RSOs.
We look forward to the prospect of having this same data for
California to use in our efforts to keep RSOs off Facebook."
7)Related Legislation :
a) AB 179 (Portantino) 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, must
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.
b) AB 2208 (Torres) creates a misdemeanor for any person
required to register as a sex offender, as specified, to
use any Internet social network Web site, as defined, and
requires registered sex offenders to provide all e-mail
addresses or Internet identifiers that he or she is
currently using or will use within five days of
establishing a new account. AB 2208 will be heard by this
Committee today.
c) SB 1204 (Runner) prohibits a person who is required to
register as a sex offender, as a condition of any parole,
from opening an account on, or otherwise participating in,
a social networking Internet Web site, as defined. The
prohibition would apply to all registrants who are paroled
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on or after January 1, 2011 and to all previously
registered parolee 10 days after receiving notice or after
re-registration. SB 1204 is pending hearing by the Senate
Committee on Public Safety.
8)Prior Legislation :
a) 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 and
ultimately gutted and amended in the Senate into a bill
related to health care.
b) AB 2681 (Smyth), of the 2007-08 Legislative Session,
would have required specified registered sex offenders to
inform the registering agency whether they have access to a
computer, and adds computer-related conditions of probation
or parole. AB 2681 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Facebook
California State Sheriffs' Association
Peace Officers Research Association of California
California State PTA
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744