BILL ANALYSIS
AB 2208
Page 1
Date of Hearing: April 6, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2208 (Torres) - As Amended: April 5, 2010
SUMMARY : 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 email addresses or internet identifiers
that he or she is currently using or will use within five days
of establishing a new account. Specifically, this bill :
1)Includes in the statement of notice all registered sex
offenders must sign, the prohibition against using any
Internet social network Web site, as specified.
2)Mandates that the registering law enforcement agency forward
all email addresses or internet identifiers to the Department
of Justice (DOJ) within three days of receipt.
3)Authorizes the DOJ to release the email addresses of all
registered sex offenders to social networking Web sites and
allows those Web sites, as specified to conduct searches of
sex offenders' email addresses and purge any prohibited users
from their Web sites. Provided however, the social networking
Web 6sites share all lists of purged email addresses with the
DOJ who may then report non-compliant registrants to the
appropriate authorities.
4)Provides that the misdemeanor penalty for a registered sex
offender to use any "Internet social networking Web site" is
up to six months in the county jail and/or a fine of not more
than $1000.
5)States that any person who is required to register as a sex
offender and is on probation or parole who seeks an exception
to this prohibition to use a social networking website for
legitimate professional purposes may apply through the
appropriate parole or probation supervising agency. Persons
no longer on probation or parole must apply for an exception
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with the DOJ. Approval must be renewed annually.
6)Defines "Internet social networking Web site" as any Internet
Web site that does all of the following:
a) Allows users through the creation of web pages or
profiles or by other means to provide information about
themselves that is available to the public or to other
users;
b) Offers a mechanism for communication with other users
where such users are likely to include a substantial number
of minors, and;
c) Has as its primary purpose the facilitation of online
social interactions.
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,
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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
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
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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).]
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
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COMMENTS :
1)Author's Statement : According to the author, "Increasingly,
sex offenders are using social networking Internet websites to
troll for victims. A 12 year old in Anaheim, California was
lured into a hotel where she was sexually assaulted by a
33-year old man she met on MySpace.com. A 14-year old in
Pomona, CA was sodomized by a 47-year old man he met on-line.
Over 80 children between ages 11 and 17 were manipulated into
sending nude photos to a 32-year old man in Riverside, CA. As
the Internet becomes today's playground, social networking
websites are increasingly being utilized by children and
youth. There must be clear restrictions on sex offenders'
access to these websites to protect our children on-line. The
Child Cyber Safety Act of 2010 prohibits registered sex
offenders from using social networking Internet sites.
"Today, 1 in 5 children have been sexually solicited on-line.
Only 25 percent of those children ever told their parents
(David Finkelhar, 2002, Online victimization). Just since
2007, the number of users on social networking sites like
MySpace, Facebook and Bebo has doubled. An estimated 750,000
children between the ages of 8 and 12 use social networking
websites, despite many of these sites prohibiting child users
(Pew Research Center, 20009, Social Media and Mobile Internet
Use among Teens and Young Adults). Many millions more
teenagers use social networking websites as one of their
primary mechanisms for social interactions with other
teenagers or adults. Nearly 80 percent of teen users report
that they are not careful about giving out personal
information online (Pew Internet and American Life, 2005,
Protecting Teens On-line).
"According to the National Criminal Intelligence Service,
internet pedophiles are becoming increasingly adept at using
the Internet to mask their identity and using technology to
assist in their search for victims.
"As the law stands now, the perpetrator who assaulted the
12-year old in Anaheim could serve a prison sentence, be
released back to the public and log back on to MySpace.com
without penalty. Even if a parent learned about this criminal
suing a social networking site again, law enforcement would
not be able to do a thing to stop his activities.
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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 must 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).] This is important information
because most registerable offenses do not involve children and
do not involve use of the Internet.
3)First Amendment : The First Amendment to the United States
Constitution states, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
petition the government for redress of grievances." [U.S.
Const, Amend. I, Section 1.] The Fourteenth Amendment
subsequently applied most of the bill of rights to the states,
including the First Amendment. [Barron vs. Baltimore (1833)
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32 U.S 243.] The California Constitution also protects free
speech. "Every person may freely speak, write and publish his
or her sentiments on all subjects, being responsible for the
abuse of this right. A law may not restrain or abridge
liberty of speech or press." [Cal. Const. Art. I, 2.]
California courts have also found, "With the Internet, the
average computer blogger has, in effect, his or her own
printing press to reach the world. Restrictions upon access
to the Internet curtail First Amendment rights." [Ashcroft
vs. American Civil Liberties Union (2004) 542 U.S. 656, 669;
Clement vs. California Dept. of Corrections (9th Cir. 2004)
364 F. 3rd 1148.]
The hallmark of protection of free speech under the First
Amendment is to allow for the "free trade in ideas" - even
ideas that the overwhelming majority of people might find
distasteful or discomforting. [Virginia v. Black (2003) 538
U.S. 343; see also Texas v. Johnson (1989) 491 U.S. 397, 414
("If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.").] "The very purpose of
the First Amendment is to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail." [McConnell
vs. Federal Election Commission (2003) 540 U.S. 93, 265
(Thomas, J. dissenting)]. Thus, the First Amendment
"ordinarily" denies states "the power to prohibit [the]
dissemination of social, economic and political doctrines
which a vast majority of its citizens believe to be false and
fraught with evil consequence." [Whitney v. California (1927)
274 U.S. 357, 374 (Brandeis, J., dissenting)].
The protections afforded by the First Amendment, however, are
not absolute. It has long been recognized that the government
may regulate certain categories of expression consistent with
the Constitution. [See, e.g., Chaplinsky v. New Hampshire
(1942) 315 U.S. 568, 571-572 ("There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem").] The First Amendment permits
"restrictions upon the content of speech in a few limited
areas, which are 'of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality'." [R. A. V. v. City of St. Paul, supra, at 382-383
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(quoting Chaplinsky v. New Hampshire, supra, at 572).]
0. A statute is content-based if it is directed at a specific
type of speech, for example, a statutory prohibition on
conscription objections. [See Schenk vs. United States (1919)
249 U.S. 47 (the defendant, Schenk distributed leaflets urging
men to refuse military service during the WWI and was
convicted under the Espionage Act of 1917).] A statute is
content-neutral if it is directed at some other action but
affects free speech, for example, forbidding the obstruction
of traffic by walking in the street or prohibiting loitering
in or around a government building. [16A Am.Jur. 2nd (2006)
Constitutional Law 460 (statutes that regulate only the
time, place and manner of expression are generally content
neutral).]
If a statute is ruled to be content-based, it is viewed with
"strict scrutiny" and is presumptively invalid. [Police
Department of Chicago vs. Mosley (hereinafter Mosley) (1972)
408 U.S. 92.] The statute will only survive if it is
"narrowly tailored to serve an overriding state interest."
[McIntyre vs. Ohio Elections Commission (1995) 514 U.S. 334.]
Regulations regarded as content-neutral receive an
intermediate rather than a strict scrutiny; this includes
regulations that restrict the time, place and manner of
expression. A content-neutral statute is "justified if it is
an important or substantial government interest and is
unrelated to the suppression of free expression; and if the
incidental restriction of alleged First Amendment freedom is
no greater than is essential to the furtherance of that
interest." [U.S. vs. O'Brien (1968) 391 U.S. 367, 376.]
Reasonable restrictions on the time, place and manner of
expression may be permitted if it is necessary to further
significant governmental interests and it not directed at the
content of speech. (Mosley at 98-99.) However, time, place
and manner restrictions of speech in a "public forum" must be
narrowly tailored to serve a significant government interest
and leave open ample alternative channels of communication.
[Perry Education Association vs. Perry Local Educators'
Association (1983) 460 U.S. 37.]
This bill prohibits all persons who are registered sex
offenders pursuant to Penal Code Section 290 from using or
participating in any "Internet social networking Web sites".
"Internet social networking Web site" is defined, inter alia,
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as any Internet Web site designed with the intent of allowing
users to build networks or connect with other people and
provides means for users to socially interact over the
Internet. At first blush, this bill appears content-neutral.
This bill does not appear to be directed at a particular type
of speech but rather the actions of a specific person. This
bill does not, for example, prohibit all 290 registrants from
criticizing the criminal justice system.
If this bill is ruled content-neutral, it may be deemed
constitutional if it is justified by an important or
substantial government interest; is unrelated to the
suppression of free expression, and; if the incidental
restriction of alleged First Amendment freedom is no greater
than is essential to the furtherance of that interest.
Presumably, the important government interest is the
protection of children from on-line predators using social
networking sites such as Facebook and MySpace to lure victims.
The protection of children is no doubt an important or
substantial government interest. [Denver Area Educational
Telecommunications Consortium, Inc. vs. FCC (1996) 518 U.S.
727, 755, ("Protection of children is a compelling
interest").]
However, it is unclear whether this bill will be viewed as an
incidental restriction on the First Amendment or as being no
greater than what is necessary to further that interest. As
mentioned above, registration applies to numerous sex
offenses, many of which do not involve children. Also, there
is no requirement that registration be based on an offense
committed with a computer. Yet, by the terms of this bill,
those offenders would not be able to use an "Internet social
networking Web site", as defined by the author. For instance,
this bill could specify that Internet restrictions shall only
apply to offenders convicted of Penal Code Section 288.3 or
288.4 related to luring a minor (although there may still be
constitutional concerns). Even if the bill is construed as
only being limited to Facebook or MySpace, registered sex
offenders may still have a First Amendment right to
communicate on those websites.
Additionally, this bill might be viewed as a prior restraint.
First Amendment jurisprudence states a presumption against
prior restraint. Prior restraint is essentially censorship
before the speech is uttered or written. The U.S. Supreme
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Court in Near vs. Minnesota opined:
"The liberty of the press is indeed essential to the nature of
a free state; but this consists in laying no previous
restraints upon publications, and not in freedom from censure
for criminal matter when published. Every freeman has an
undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or
illegal, he must take the consequence of his own temerity. .
. . The fact that the liberty of the press may be abused by
miscreant purveyors of scandal does not make any the less
necessary the immunity of the press from previous restraint in
dealing with official misconduct. Subsequent punishment for
such abuses as may exist is the appropriate remedy, consistent
with constitutional privilege." [Near vs. Minnesota
(hereinafter Near)(1931) 283 U.S. 697, 714, 719.] Hence,
statutes viewed as prior restraint are presumptively invalid.
The Near Court noted only three exceptions where prior
restraint may be tolerated in a free society: where there is
a risk to national security (i.e., troop movements), where
there is an issue of obscenity, or where the speech creates an
incitement of violence or overthrow of the government. (Near
at 716.) In this case, a person who is required to register
as a sex offender is precluded from engaging in speech or
publishing points of view if the forum for those views is a
"social network site" as defined by the author. Although this
bill is not aimed at certain types of speech, it may be viewed
as unconstitutional as it is applied to a particular person.
If a speaker wishes to publish for instance, commentary on a
political issue, he or she would be prohibited from posting
the materials on some websites for fear of criminal punishment
if it is determined to be an "Internet social networking Web
site". High schools and colleges are increasingly creating
websites for student, faculty and alumni use. If a person was
convicted of a registerable sex offense decades ago, he or she
would no longer be able to participate on even an alumni
webpage for fear that a DOJ employee may decide it is a social
networking site.
Statutes may also be invalidated on grounds of overbreadth.
"Overbreadth is a judicially created doctrine designed to
prevent the chilling of protected expression." [16A Am.Jur.
2nd (2006) Constitutional Law 411; Massachusetts vs. Oaks
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(1989) 491 U.S. 576, 583 ("The doctrine is predicated on the
danger that an overly broad statute, if left in place, may
cause persons whose expression is constitutionally protected
to refrain from exercising their rights for fear of criminal
sanctions").] Statutes may be either facially
unconstitutional or unconstitutional as applied to a
particular person. Overbreadth requires a showing that either
"every application of statute creates an impermissible risk of
suppression or ideas or that the statute is substantially
overbroad, requiring the court to find a realistic danger that
the statute itself will significantly compromise recognized
First Amendment protections of parties not before the court".
[16A Am.Jur. 2nd (2006) Constitutional Law 411; New York
State Club Association vs. City of New York (1988) 487 U.S.
1.]
In this case, this bill may be facially overbroad. If the
intention is prevent sex offenders who target children through
use of the Internet, presumably offenders who were not
convicted of a crime involving children should be rightfully
excluded; this bill applies to all persons required to
register pursuant to Penal Code Section 290. An offender
convicted of inducing a person to act as a prostitute may not
use any "Internet social networking Web site", even though he
or she did not victimize a child. Hence, the law prohibits a
person not contemplated by the statute from speaking in
certain contexts.
Statutes may also be rejected on grounds of vagueness. The
First Amendments demands certainty and clarity in statutes,
particularly criminal statutes. "Vague laws in any area
suffer a constitutional infirmity, but when First Amendment
rights are involved, the United States Supreme Court looks
even more closely lest, under the guise of regulating conduct
that is reachable by the police power, a First Amendment
freedom suffers; such a law must be narrowly drawn to prevent
the supposed evil. Because First Amendment freedoms need
breathing space to survive, the government may regulate in the
area only with narrow specificity. Stricter standards of
permissible statutory vagueness may be applied to a statute
having a potentially inhibiting effect on speech." [16A
Am.Jur. 2nd (2006) Constitutional Law 410; Gooding vs. Wilson
(1972) 405 U.S. 518; NAACP vs. Button (1963) 371 U.S. 415.]
As explained above, this bill appears to lack the necessary
specificity to prevent only sex offenders who victimize
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children from using the Internet to facilitate crimes.
4)Vagueness and Due Process : The "void for vagueness" doctrine
exists in the due process clause of the Fifth and Fourteenth
Amendments; it is not limited to just the First Amendment. It
is a general principle of statutory law that it must be
definite to be valid. "A statute is void for vagueness when
its prohibition is so vague as to leave an individual without
knowledge of the nature of activity that is prohibited. To
pass constitutional muster, statutes challenged as vague must
give a person of ordinary intelligence a reasonable
opportunity to know what is prohibited and provide explicit
standards for those who apply it to avoid arbitrary and
discriminatory enforcement." [16A Am.Jur. 2nd (2006)
Constitutional Law 920; Maroney vs. University
Interscholastic League (5th Cir. 1985) 764 F.2nd 403.] "The
due process doctrine concerning vagueness of statutes
incorporates notions of fair notice or warning and requires
legislatures to set reasonably clear guidelines for law
enforcement officials and tiers of fact in order to prevent
arbitrary and discriminatory enforcement; there is a denial of
due process where inherently vague statutory language permits
selective law enforcement." [Smith vs. Goguen (1974) 415 U.S.
566, 573.]
"It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague
statute 'abut[s] upon sensitive areas of basic first amendment
freedoms, it 'operates to inhibit the exercise of [those]
freedoms.' Uncertain meanings inevitably lead citizens to
'steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked."
[Grayned v. City of Rockford (1972) 408 U.S. 104, 108.]
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As for this bill, the "void for vagueness" doctrine may apply to
the definition of "Internet social networking Web site".
Although the contemplated site may be Facebook or MySpace, as
mentioned above, the definition of "Internet social networking
Web site" may include a long list of sites that are not
similar to Facebook or MySpace yet still involve building a
profile and interacting with other site members for purposes
of social interaction. Also, new websites are designed and
launched every day. Facebook has only been in existence for
approximately five years. There is no way to know what will
constitute an "Internet social networking Web site" in the
future. If a registered sex offender cannot be reasonably
certain what constitutes an "Internet social networking Web
site, this bill must fail as a violation of due process.
Also, it is possible that application of law may be arbitrary.
Law enforcement will become the arbiter of what constitutes a
social network site; arrest and prosecution will necessarily
become selective.
5)Limits for 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 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.]
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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.]
"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
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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 reasoning is especially relevant as it is a California
state case and involves a parolee who has fewer rights than a
person who is not on probation or parole and yet prohibited
from accessing the Internet. This bill includes a person who
is not on probation or parole but who is required to register
as sex offender for the remainder of his or her life.
Presumably, the registered person would be prohibited from
using an "Internet social networking Web site" for the
remainder of his or her life. If the Court of Appeals found
that a condition of parole aimed at a convicted child molester
was insufficiently narrow to withstand constitutional attack,
it seems likely this bill will do no better in that it
includes all sex offenders and persons who are no longer on
probation or parole. It is also important to note that for a
person who is on probation or parole, the probation or parole
officer may set reasonable conditions on the offender for the
period of probation or parole. Given existing case law on
this issue, the only way to be sure this legislation is
constitutionally sound, is to limit it only to persons on
probation or parole for an offense involving children and use
of the Internet and provides a clear nexus between the
restriction and the offense.
6)Dissemination of Information to Social Networking Sites : This
bill requires that lists of sex offender email addresses may
be provided to "Internet social networking Web sites"
presuming those entities notify the Department of Justice
(DOJ) of any sex offenders still on a social network site.
This creates serious concerns. As noted above, the purpose of
sex offender registration is to provide law enforcement with a
necessary tool for investigating other sex offenses. This
bill additionally requires that all registered sex offenders
in the California must provide email addresses as part of
their annual registration. DOJ is then responsible for
disseminating that information to any social networking site
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that requests the information as long as they agree to report
any offenders on the site. This bill does not include email
addresses on the public website, so it requires DOJ to
disseminate otherwise inaccessible information to private for
profit corporations. Government agencies should not be
disseminating private information to corporations and
corporations should not be policing the actions of registered
sex offenders. Violation of registration should be
investigated where appropriate by the designated law
enforcement agency. Corporations are not subject to
constitutional standards of investigation and chain of custody
requirements. Nor are they qualified to decide what is
covered by the statute and what is not.
7)Issues of Immunity : This bill does not provide any civil or
criminal immunity for a social networking site that receives a
list of email addresses and fails to identify an offender on
its site. If subsequent criminal action occurs, the social
networking site may be liable for damages for failure to
properly check the site.
Congress passed the Communications Decency Act (CDA) in 1996 to
address the myriad problems surrounding the regulation of
obscene, illegal, or otherwise tortious content found on the
Internet. [47 U.S.C. 223 (Supp. 2001).] Many of the CDA's
provisions regulating decency have been struck down by the
courts as violations of the First Amendment. (See Reno v.
ACLU (1996) 521 U.S. 844 (holding portions of the CDA
unconstitutional for its overbroad limitations on protected
speech).] One of the surviving elements is a congressional
grant of immunity from suit to ISPs and other interactive
computer services for content originating with third parties.
[47 U.S.C. 230 (Supp. 2001).]
The effect of these rulings has been the emergence of a
comprehensive immunity from suit for ISPs so long as the suits
are based on content not authored by the ISP. Whether or not
Congress intended this result, ISPs and other interactive
computer services have used Section 230 as a complete defense
against recent suits brought by parents upset by child
pornography marketed in ISP chat rooms (See Doe v. Am. Online,
Inc. (Fla. S. Ct. 2001) 783 So. 2d 1010); copyright owners
against eBay for facilitating sales of infringing recordings
(See Stoner v. EBay (Cal. Super. Ct. Nov. 7, 2000) No. 305666,
2000 Extra LEXIS 156); and taxpayers protesting the
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accessibility of pornography on public library computer
terminals (see Kathleen R. v. City of Livermore (Cal. Ct. App.
2001) 87 Cal. App. 4th 684; See also Doe v. America Online,
Inc. (Fla. S. Ct. 2001) 783 So.2nd 1010.]
Federal statutes and case law grant civil immunity to ISPs but
it is not clear that such immunity is granted to social
networking Web sites for third party conduct. It is also
unclear whether such immunity will be or even should be
granted to social networking sites who accept the affirmative
duty of searching hundreds of thousands of members to ensure
no registered sex offenders are participating. This may take
some time given that several emails are similar or exactly the
same. For instance, [email protected] may be a
registered sex offender and may also be a University of
California, Berkeley chemistry student. Will they both be
removed? Neither? How else will social networking sites
determine who is who? If, for example, Facebook removes the
wrong John K. Williams, are they liable for any subsequent
related criminal activity?
8)Other States : Several other states and 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
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
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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 electronic mail (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 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.
"However, if the new laws interfere with a judge's discretion to
evaluate release conditions, the question becomes whether a
legislature should set mandatory conditions for offenders, or
whether courts should be free to make case-by-case
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determinations based upon the totality of the circumstances."
[Brant at 798.]
This statute appears to be, at least in part, modeled on the New
York statute passed last year. The New York American Civil
Liberties Union (ACLU) published a legislative memorandum
strongly questioning by constitutional validity and the policy
of the New York statute. The NY ACLU stated,
"The sponsor's memorandum accompanying the e-STOP legislation
speaks of a grave security risk posed by predators who utilize
the internet to perpetrate sex crimes. This assertion is
dubious; recent analyses indicate the alleged problem is
greatly exaggerated. Those concerned the internet is
facilitating the commission of sex crimes often cite a study
by the Crimes Against Children Research Center, which found
that one in seven children had received sexual solicitations
while on-line. According to the author of the report, however,
many of these propositions were "coming from other kids, or
just people who are acting weird on line.
"A highly regarded 'Frontline' documentary produced by the
Public Broadcasting System reached a similar conclusion. The
PBS investigation focused on teenagers, 90 percent of whom
used the internet daily - including Facebook, MySpace and
other social networking sites. The producers of the
documentary observed that,
"'One of the biggest surprises in making this film was the
discovery that the threat of online predators is misunderstood
and overblown. The data shows that giving out personal
information over the Internet makes absolutely no difference
when it comes to a child's vulnerability to predation. . . .
Most importantly, all the kids we met, without exception, told
us the same thing: They would never dream of meeting someone
in person they'd met online.'
"As for children under the age of twelve who are the victims of
child abuse, the perpetrator in more than 90 percent of such
crimes is a family member or a known friend of the family.
Kidnapping or sexual abuse of a child by a stranger is an
extremely rare occurrence. These findings and observations
are consistent with the results of on-line sting operations,
including sweeps of networking sites. Aggressive policing of
the internet has uncovered few instances of registered
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offenders engaged in criminal conduct.
"Recidivism rates among registered sex offenders offer further
evidence that the risk of harm posed by registered offenders
is greatly overstated. Following release from state prison,
sex offenders are rarely subject to arrest or conviction for
another sex offense. A recent study by New York's Division of
Probation and Correctional Alternatives found that of 19,827
offenders registered as of March 31, 2005, the re-arrest rate
for a new sex crime within one year from the date of first
registration was 2 percent; re-arrest within two years was 3
percent; within five years, 6 percent; and within eight years,
8 percent.
"The proposed regulatory scheme is flawed by vagueness and
overbreadth. When government acts to restrict speech based on
the identity of the speaker or the content of his speech, such
restrictions must be narrowly tailored in furtherance of a
compelling government interest. Courts have recognized that a
greater degree of deference may be granted to restrictions
upon conditions of probation; however these restrictions must
not undermine constitutional rights in ways unrelated to
rehabilitation. There is no question that the state has a
compelling interest in preventing sex crimes against minors.
However, e-STOP is not tailored to restrict only - or even
primarily - speech that may be related to the commission of
such crimes. The bill's stated objective is to prevent former
offenders from communicating with minors through social
networking sites.
"But a tremendous amount of communication takes places between
adults on social networking sites. Many people visit MySpace,
for example, to engage in political speech or advocacy, or to
learn about music performances. However the proposed e-STOP
law would subject to criminal suspicion and prosecution former
offenders engaged in lawful speech that is directed to an
adult audience, without any intent that the speech reach
minors. The law would also make criminal the mere act of
viewing the MySpace web site, even if done with the intent to
learn about social or political events. As a consequence the
proposed regulatory scheme fails to pass constitutional
muster.
[www.nyclu.org/content/legislative-memo-electronic-security-and
-targeting-of online-predators-act]
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Although other states and the Federal Government may have
enacted Internet restrictions on sex offenders, California and
Missouri are the only states that require lifetime
registration for all registerable sex offenders with virtually
no opportunity for removal. [NIC/WCL Project on Addressing
Prison Rape under NIC Cooperative Agreement; American
University, Washington College of Law, August 2009; see
Missouri Law V.A.M.S. 589.400(3) ("Registration is a
lifetime requirement unless the offender has been pardoned or
the conviction has been reversed, set aside or vacated.").]
California provides for removal only where an offender can
show consensual adult activity that resulted in a conviction
for sodomy or oral copulation prior to January 1, 1976 or
where the offender is granted a certificate of rehabilitation
for offenses not explicitly registerable. [Penal Code Section
290.019(a); Penal Code Section 290.5.] Given the serious
constitutional concerns of the New York statute, does it make
sense to pass a similar statute that may also be viewed as
unconstitutional?
9)Luring Statutes : 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
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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. Hence, any person who attempts to use the
computer to lure a person under the age of 18 into a sex act
is already guilty of a crime.
10)Penalties for Failure to Register : Existing law states, any
person who is required to register as a sex offender based on
a misdemeanor conviction or juvenile adjudication that
willfully violates any requirement of registration is guilty
of misdemeanor punishable by up to one year in the county
jail. [Penal Code Section 290.018(a).] If registration is
based on a conviction for a felony and a person violates any
requirement of registration, he or she is guilty of a felony
and shall be sentenced to state prison for a term of 16
months, two or three years, except as otherwise specified.
[Penal Code Section 290.018(b).] Although this bill creates a
misdemeanor for any person to use an "Internet social
networking Web site", the bill also expands the current
registration requirement to include all email addresses or
internet identifiers.
If an offender gets a new email address or changes an existing
email address, he or she is required to notify the appropriate
local law enforcement agency within five days. Failure to do
so will be considered a violation of registration
requirements. As noted above, when the conviction requiring
registration is a felony, he or she will be exposed to a state
prison sentence for failure to provide any change of email
address. This also includes any change to a work email
address. This seem an unreasonable burden on a person who is
no longer on probation or parole and who may have been
crime-free for years to repetitively visit local law
enforcement every time he or she changes an email address or
gets a new email address. If the person fails to continually
provide this information, he or she is guilty of a crime, and
in some cases, may result in state prison. As will be
explained below, placing an increasing number of penalties on
persons who are required to register may put the entire
registration scheme in constitutional jeopardy.
11)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
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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
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, sex offender registration 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
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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 Fourth 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
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).]
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"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 has recently held that various
provisions of Jessica's Law were not unconstitutional as
applied to four parolees. [In re E.J et. al. (2010) 47
Cal.4th 1258.] Nevertheless, by placing greater requirements
on a person who is required to register as a sex offender, it
may 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.
12)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 will increase the workload to update the VCIN which
must be updated by July 2010.
13)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
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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 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, for persons who are no longer on probation or
parole, this bill authorizes DOJ to decide if an exception is
granted. There are no specifications in the bill for a proper
hearing or opportunity to appeal. It is possible that DOJ and
the Administrative Law Office would have to establish a formal
procedure for requesting an exception and outline available
remedies if such an exception is denied by the agency.
14)Recommendations of the Sex Offender Management Board Report :
AB 1015 (Chu), Chapter 338, Statutes of 2005, created the Sex
Offender Management Board (SMOB). According to the author of
AB 1015:
"The SOMB created under this bill will be tasked with an
assessment of California's current management practices for
adult sex offenders residing in California communities and of
best practices around the nation. Based on their findings,
SOMB will make recommendations to improve California's
management of sex offenders, with the goal of improving
community safety."
"Sex offenders in California are currently managed through a
complex system involving multiple state and local departments.
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Yet, there is no centralized infrastructure that coordinates
communication, research or decision-making amongst the various
agencies.
"In California, there are over 100,000 registered sex offenders
living in the community, an estimated 14,000 to 25,000 in
California prisons and an additional unknown number in
California jails. Almost all convicted sex offenders will
eventually return to the community, with a short period of
time under direct supervision, either on parole, probation or
conditional release. It is integral that during this period
of time when sex offenders are under direct supervision, there
is a comprehensive and cohesive network of interventions
available to control the behavior of sex offenders and prevent
recidivism.
"AB 1015 will bring the major participants in the management of
sex offenders together to assess current practices in managing
adult sex offenders under supervision, identify best practices
and make recommendations on how to implement these changes.
Efforts such as the one proposed in this bill has been met
with much success in other states and within California
counties, including San Diego County, Orange County, Colorado,
Oregon, Connecticut and Pennsylvania."
The SOMB released some recommendations in January 2010. The
Report states:
"Sexual crimes rightly outrage communities. The legacy of
sexual assault in the lives of victims is often profound and
long-lasting. In the aftermath of an assault, communities
often demand with great vehemence that policymakers and public
safety professionals DO SOMETHING. The root of the desire to
acknowledge the serious nature of the crime is difficult to
disparage but, when combined with fear, misinformation and the
heat of media inquiry, the flame of community outrage can
create a political environment that rewards swift action over
more methodical, effective approaches. On occasion, these
swift approaches may address short-term community outrage at
the cost of directing resources and skilled personnel away
from investments in strategies for long-term safety.
"Every child, woman and man in California deserves to be safe
from sexual violence. Even though a known sex offender living
near a park may seem like the most obvious threat, far more
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Californians will be sexually victimized in their own homes by
acquaintances or family members. The lack of significant
in-home intervention and prevention resources is symptomatic
of an approach that fundamentally misunderstands the complete
extent and nature of sexual violence. The CASOMB acknowledges
this broader context of sexual victimization, and recognizes
the limitations of our mandate that is focused on already
identified offenders.
"No two sex offenders pose the same level of risk, nor can they
be managed or supervised in identical ways. Laws and policies
that fail to take into account the real differences in risk
that individual offenders might pose will misallocate valuable
resources and misunderstand potential threats. The ultimate
success of California's sex offender management system will
depend on its ability to understand the myriad of ways that
sexual offending occurs and then adjust to intervene and
manage that risk.
"Similarly, policymakers and the public should be suspicious of
any one technology or strategy which promises to solve the
problem of sex offenders. Sexual offending is a complex
problem that will require thoughtful, multifaceted approach to
effectively address, and ultimately, prevent." (California
Sex Offender Management Board, Decrease Victimization;
Increase Community Safety, Recommendations Report, January
2010, pp. 9-11.)
15)Arguments 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 aggressively enforce a policy prohibiting RSOs
from Facebook and have worked proactively with states'
attorneys general to run their lists of registered sex
offenders against our user base. We welcome the addition of
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criminal penalties, as outlined in AB 2208, for those that
violate our policy and we are committed to working with you to
ensure your legislation is enacted. Facebook will continue to
partner with policymakers, law enforcement, parents and
educator to make the Internet safer for everyone."
16)Arguments in Opposition :
a) According to the California Public Defenders
Association , "This proposed legislation would create a new
misdemeanor adding Penal Code Section 290.96 to bar sex
offenders from using any social networking computer sites
and making conforming changes to 290.015. This proposal
wastes money and endangers the public. Evidence based
research recognized by the California Sex Offender
Management Board has shown that the re-integration of sex
offenders into the community is crucial to prevent
re-offense. That means that sex offenders need jobs and
housing in order to maintain stability and rebuild their
lives. If sex offenders are able to find gainful
employment and appropriate housing, they are less likely to
re-offend, thus less likely to endanger the public.
Currently, many people find jobs through social network
sites, i.e. Craig's List. This is even more likely to be
true in the future. To deny sex offenders the opportunity
to find employment is short-sighted, bad public policy and
vindictive.
"Enforcing a new misdemeanor would entail police, prosecution
and defense resources which the counties do not have to
expend. It is especially ironic to obligate these county
resources under the auspices of protecting children while
budgetary constraints are forcing these counties to cut
children's programs that provide food, health care and
education."
b) According to the American Civil Liberties Union , "This
legislation raises significant free speech concerns by
placing significant and constitutionally impermissible
burdens on the use of the Internet for legitimate and
lawful purposes. It is virtually impossible to list the
wide range of websites this bill seeks to prohibit former
offenders from accessing. It makes it a crime to passively
review or download information from a broad range of
'social networking' sites which includes sites that allow
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comments such as newspapers, or site sharing information on
products, music, ect. For example, the bill would bar
posting information regarding political advocacy or musical
events on MySpace-a central information exchange that
provides access to music that may be sampled at no cost
without violating copyright laws. It applies to websites
that enable job searches such as LinkedIn and Monster.com.
Moreover, such websites are constantly evolving; the
proposed definition will inevitably preclude access to
dynamic and evolving internet information hubs.
"There is governmental interest in prohibiting lawful
communication between and among consenting adults even via
a communication medium used by minors. When Congress tried
to enact a similarly broad bar to conveying a particular
type of speech over a medium of expression-the internet
writ large-the Supreme Court unanimously held that such
'unnecessary broad suppression of speech' is barred by the
First Amendment. Courts have repeatedly struck down such
'prophylactic provisions' that seek to proscribe broad
classifications of speech.
"Notwithstanding the constitutional infirmities of this bill,
public policy considerations also argue against such a
broad ban. Keeping former offenders connected to their
communities, families and friends is a critical factor in
preventing recidivism. Reducing opportunities for
registered sex offenders to use the internet-a primary tool
of learning and communication in the 21st Century-removes
former offenders from social groups and supportive
relationships, which are important in minimizing
recidivism."
17)Related Legislation :
a) AB 179 (Portantino) mandated 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 e-mail addresses and instant messaging (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 1850 (Galgiani) required a person required to
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register as a sex offender to register his or her Internet
accounts and Internet identifiers, defined to include
e-mail addresses and designations used for the purposes of
chatting, IM, social networking, or other similar Internet
communication. AB 1850 is pending hearing by this
Committee.
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
on or after January 1, 2011 and to all previously
registered parolee10 days after receiving notice or after
re-registration. SB 1204 is pending hearing by the Senate
Committee on Public Safety.
18)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
California State Sheriffs Association
California Peace Officers Research Association
Child Abuse Prevention Center
City and County of San Francisco
Crime Victims United of California
Facebook
One private citizen
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Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744