BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 584 (Hollingsworth)
As Introduced February 27, 2009
Hearing date: April 14, 2009
Penal Code
JM:mc
COMPUTER ACCESS BY REGISTERED SEX OFFENDERS
HISTORY
Source: Author
Prior Legislation: AB 2681 (Smyth) - 2008, failed passage in
Assembly Public Safety<1>
Support: San Bernardino County Sheriff; Capitol Resource Family
Impact; Crime Victims United of California
Opposition:American Civil Liberties Union
KEY ISSUES
WHERE A PERSON HAS BEEN CONVICTED OF A CRIME FOR WHICH SEX
OFFENDER REGISTRATION IS REQUIRED AND THE TRIER OF FACT (JURY OR
COURT) FOUND THAT THE OFFENSE WAS "FACILITATED" BY A DEVICE WITH
INTERNET CAPABILITY, SHOULD THE PERSON BE REQUIRED TO STATE IN
REGISTERING AS A SEX OFFENDER WHETHER OR NOT HE OR SHE HAS
"ACCESS TO" AN INTERNET DEVICE, AND SHOULD HE OR SHE BE REQUIRED
---------------------------
<1> There are literally dozens of bills concerning sex offender
registration and parole and probation for sex offenders. These
bills are too numerous to list serially.
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TO INFORM THE REGISTERING AGENCY WITHIN FIVE DAYS OF OBTAINING
SUCH ACCESS?
(CONTINUED)
SHOULD A VIOLATION OF EITHER OF THESE REGISTRATION REQUIREMENTS BE A
MISDEMEANOR OR FELONY, DEPENDING ON WHETHER OR NOT THE SEX CRIME
CONVICTION REQUIRING REGISTRATION IS A MISDEMEANOR OR FELONY?
WHERE A PERSON IS GRANTED PROBATION, OR RELEASED ON PAROLE, FOR A
CRIME FOR WHICH SEX OFFENDER REGISTRATION IS REQUIRED, AND THE TRIER
OF FACT FOUND THAT A COMPUTER WAS USED TO FACILITATE THE CRIME,
SHOULD PROBATION OR PAROLE INCLUDE THESE CONDITIONS: 1) COMPUTER
USE ONLY WITH WRITTEN APPROVAL OF THE COURT, EXCEPT FOR
EMPLOYMENT-RELATED ACTIVITIES AT THE APPROVAL OF THE PROBATION
OFFICER OR PAROLE AGENT; 2) EXAMINATION OF THE PERSON'S COMPUTER AND
SEIZURE OF COMPUTER DATA BY ANY LAW ENFORCEMENT OFFICER; AND 3)
INSTALLATION OF COMPUTER MONITORING SOFTWARE AT THE EXPENSE OF THE
PROBATIONER OR PAROLEE?
SHOULD VIOLATION OF THE COMPUTER ACCESS PAROLE OR PROBATION
CONDITIONS BE A MISDEMEANOR AND A VIOLATION OF PAROLE OR PROBATION,
AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) provide that where the trier
of fact in a prosecution for a crime requiring sex offender
registration found that an Internet capable device was used to
facilitate the crime, the convicted person's sex offender
registration must include a statement whether or not he or she
has access to a device with Internet capability and the person
shall inform the registering agency within five days of
obtaining such access; and 2) provide that where a person is
granted probation or released on parole for an offense for which
sex offender registration is required, and where the trier of
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fact found that a computer was used to facilitate the crime, the
conditions of probation or parole shall include: a) that the
probationer or parolee may only use a computer with the written
approval of the court unless authorized by the probation officer
or parole agent for employment-related uses; b) that the
probationer or parolee's computer shall be subject to
examination, including seizure of data; and c) that the
probationer or parolee shall submit to installation of
monitoring software at his or her expense.
Existing law provides that a person who sends harmful matter
(obscenity from the perspective of a minor) by any means,
including the Internet or e-mail, with the intent to "seduce"
the minor, is guilty of an alternate felony-misdemeanor. (Pen.
Code 288.2.)
Existing law provides that any person who communicates with a
minor, or attempts to do so, for the purpose of committing any
one of a list of specified sex crimes is guilty of a crime, and
shall receive the punishment that applies to the crime the
defendant sought to commit. (Pen. Code 288.3.)
Existing law provides that if a person with an abnormal sexual
interest in children arranges a meeting with a minor for the
purpose of exhibiting his or her genitals or rectal area, or
intends the minor to do that, he or she is guilty of a
misdemeanor. If the person goes to the arranged meeting, the
crime is a felony, punishable by imprisonment for two, three, or
four years and a fine of up to $10,000. (Pen. Code 288.4.)
Existing law includes numerous prohibitions, limits and
conditions concerning probation for persons convicted of sex
crimes. (Pen. Code 1203.06, 1203.065, 1203.066, 1203.067.)
Existing law provides that a condition of probation is valid if
it is reasonably related to the crime of conviction or future
criminality and the condition is not vague, arbitrary or
overbroad. (People v. Lent (1975) 15 Cal.3d 481, 486; People v.
Welch (5 Cal. 4th (1993) 228, 233-234; People v. Zaring (1992) 8
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Cal.App.4th 362.)
Existing law generally authorizes the use of a "State-Authorized
Risk Assessment Tool for Sex Offenders" ("SARATSO") pursuant to
the legislative finding that "a comprehensive system of risk
assessment, supervision, monitoring, and containment for
registered sex offenders residing in California communities is
necessary to enhance public safety and reduce the risk of
recidivism posed by these offenders." (Penal Code 290.03,
290.04.)
Existing law requires the Department of Corrections and
Rehabilitation to assess every eligible person on parole, as
specified. (Penal Code 290.06, subd. (a)(2).)
Existing law requires probation officers to investigate and
report to the court upon the circumstances surrounding the crime
and the prior history and record of the person, which may be
considered either in aggravation or mitigation of the punishment
for persons convicted of a felony and eligible for probation.
(Penal Code 1203.)
Existing law generally requires that probation reports in sex
crime cases include the results of the SARATSO assessment
conducted on the person, as specified. (Penal Code 1203,
subd. (b)(2)(c).)
Existing law (Pen Code 290.015, subd. (a)) requires a person
convicted of specified sex offenses to register upon release
from incarceration, placement, commitment, or release on
probation. Registration shall consist of the following:
A written statement giving information required by the
Department of Justice (DOJ) and giving the name and address
of place of employment and employer;
Fingerprints and a current photograph taken by the
registering official;
The license plate number of any vehicle owned, driven by or
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registered to the registrant;
Notice that the registrant may have a duty to register in
another state upon relocation; and
Adequate proof of residence.
Exiting law provides that willful violation of a registration
requirement constitutes a misdemeanor if the offense requiring
registration was a misdemeanor, and constitutes a felony if the
offense requiring registration was a felony, or if the person
has a prior conviction of failing to register. (Pen. Code
290.018, subd. (a)-(b).)
Existing law also provides that in addition to any other
penalty, the failure to provide information required on
registration and re-registration forms created by the Department
of Justice (DOJ), or the provision of false information on such
a form, is a crime punishable by imprisonment in a county jail
for a period not exceeding one year. (Pen. Code 290.018,
subd. (j).)
Existing law includes numerous and related crimes concerning
destruction of or interference with computers, computer systems,
data, or electronic data services. (Pen. Code 502, 502.7.)
Existing law provides that the period of probation for a person
convicted of a computer or data crime, as specified, shall be at
least three years, although the court may impose a shorter time
in the interests of justice. The probationer may not accept
employment where he or she would use a computer that is
connected to another computer, except upon approval of the court
and after the prosecutor, probation department, and the
probationer's employer have an opportunity to be heard by the
court. The court shall allow the employment only if it would
not pose a risk to the public. (Penal Code 1203.047.)
This bill provides that where the jury in a prosecution for a
crime requiring sex offender registration finds that an Internet
device was used to facilitate the crime, the convicted person
must state as part of sex offender registration whether or not
he or she has access to a computer or other device with Internet
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capability.
This bill provides that where the jury in a prosecution for a
crime requiring sex offender registration found that an Internet
device was used to facilitate the crime, the convicted person
must inform the law enforcement agency with whom the person
registers within five days of obtaining access to a computer or
other device with Internet capability.
This bill provides that where a person is granted probation for
an offense for which sex offender registration is required, and
where the trier of fact of the offense found that a computer was
used to facilitate the crime, the conditions of probation shall
include the following:
The probationer may only use a computer with the prior
written approval of the court.
The probation officer may, however, allow the
probationer to use a computer for employment related uses.
The probationer must allow examination of his or her
computer and data.
Monitoring software must be installed on the
probationer's computer at the expense of the probationer.
This bill provides that a probationer who violates any of these
terms of probation is guilty of a misdemeanor and has committed
a violation of probation.
This bill provides that where a person is released on parole
after serving a prison term for an offense for which sex
offender registration is required, and where the trier of fact
at the trial of the qualifying offense found that a computer was
used to facilitate the crime, the conditions of parole shall
include the following:
The parolee may only use a computer with the prior
written approval of the court.
The parole agent may, however, allow the parolee to use
a computer for employment related uses.
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The parolee must allow examination of his or her
computer and data.
Monitoring software must be installed on the parolee's
computer at the expense of the parolee.
This bill provides that a parolee who violates any of these
terms of parole is guilty of a misdemeanor and has committed a
parole violation.
This bill , for purposes of probation and parole conditions set
out therein, defines a computer as "an electronic or wireless
device with Internet capability."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
---------------------------
<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
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means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
This bill requires sex offenders who used computers to
facilitate the commission of their sex crimes to have
mandatory probation or parole conditions limiting
their access to computers and wireless devices with
Internet access, with limited exceptions.
The Internet has become a tool in recent years by
which sexual predators have been able to lure innocent
victims into dangerous situations and subsequently
commit unspeakable crimes against them. Those who use
the Internet as a means to commit crimes against
----------------------
<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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children must be closely observed, and this
legislation will provide law an additional means to
accomplish this. It will further serve as a
deterrent, ensuring that sex offenders cannot hid
behind a secretive screen and user name when hunting
for potential victims.
2. National Association of Attorneys General Study of Internet
Dangers for Children - Intimidation of Each Other by Minors
Outweighs the Dangers Posed by Adult Sex Offenders
An extensive report released in December 2008 set out the
findings of a study of the dangers to children on the Internet.
The report was commissioned by the National Association of
Attorneys General and was directed by the Berkman Center for
Internet & Society at Harvard University. The executive summary
of the report noted that effective protection of minors from
harm from Internet related dangers could only be done if the
dangers were understood. In broad terms, the report entitled
Enhancing Child Safety and Online Technologies found:
Sexual Predation:
Most research on Internet sexual predation was done
before social networking sites developed.
Most sexual predation involved post-pubescent youth who
knew they were meeting an adult male for sex.
Youth report sexual solicitation by other minors more
frequently than by adults.
Bullying and Harassment:
Bullying and harassment are the most frequent threats
minors face online and otherwise.
Bullying and harassment is usually done by other minors.
Access to Pornography:
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Unwanted exposure to pornography does occur online.
Most pornography observed by minors is sought out by
older male minors.
Which Minors are Most at Risk?
Minors most at risk online often engage in risky
behaviors per se.
Minors who are at risk online typically have
difficulties in other parts of their lives.
Family dynamics and psychosocial makeup are better
predictors of risk than the use of specific technologies or
media.
Research Goals and Needs
More research is needed to determine how social
networking sites affect sexual predation.
Research is needed "about the interplay among risks and
the roles that minors themselves play in contributing to
online dangers.
3. Vagueness and Overbreadth Concerns - Constitutional Issues and
Practical Application of the Terms "Access to" and
"Facilitate" to Sex Offender Registration Issues
Constitutional Standards
A statute must give reasonable notice to persons of ordinary
intelligence as to what the law prohibits. A statute that
does not provide such notice is unconstitutionally vague.
(Kolender v. Lawson (1983) 461 U.S. 352.) A law is overly
broad where it does not advance a legitimate state interest or
where the law criminalizes benign or protected activity.
(People v. Pulliam (1998) 62 Cal.App.4th 1430, 1437.)
The bill expands existing crimes concerning the duty of a sex
offense registrant to provide specified information to law
enforcement. This bill imposes new duties and prohibitions
concerning Internet access for persons convicted of sex
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offenses for which sex offender registration is required.
Application of the Bill; Constitutional Issues and Practical
Concerns
It may be argued that terms "access to" and "facilitate" in
reference to use of a computer by criminal defendant,
probationer, or parolee may not give sufficient notice as to
what the law requires. Further, these terms may control
benign activity. For example, does one have access to
Internet service if the person's spouse or partner has a
laptop or a Blackberry? Does one have access to Internet
service if he or she can use a library? Does one have access
to Internet service if the person simply uses a cell phone
with data transmission capability?
A defendant, probationer or parolee is subject to the Internet
prohibitions imposed pursuant to this bill if trier of fact
(jury or court that determines a defendant's guilt) finds that a
computer was used to "facilitate" the underlying sex crime.
This raises the issues of what does it mean to facilitate a
crime. Would that include use of Mapquest or Google maps
instead of a Thomas Guide? Would that include sending a text
message or making a phone call on a cell-phone with data
transmission capability may be successfully argued that a person
would not reasonably know what activities constitute
facilitating of a sex crime with an Internet device.
WHAT CONSTITUTES "ACCESS" TO COMPUTER OR OTHER DEVICE WITH
INTERNET CAPABILITY?
IS A REQUIREMENT THAT A REGISTERED SEX OFFENDER INFORM THE
REGISTERING AGENCY OF THE PERSON'S ACCESS TO AN INTERNET DEVICE
VAGUE AND OVERBROAD?
WHAT DOES IT MEAN TO "FACILITATE" A CRIME THROUGH USE OF A
COMPUTER?
IS A LAW VAGUE AND OVERBROAD THAT IMPOSES REGISTRATION DUTIES,
EXPOSURE TO NEW CRIMINAL LIABILITY AND PROHIBITIONS OR SEVERE
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RESTRICTIONS ON ACCESS TO AN INTERNET DEVICE BECAUSE THE
PERSON'S COMMISSION OF THE SEX CRIME WAS "FACILITATED" THROUGH
USE OF A COMPUTER?
Practical Application of the Broad Term "Access" to Computers
and Internet Devices as Concerns Sex Offender Registration
Duties
Assuming, arguendo, that the term "access" to a computer is not
constitutionally vague or overbroad, access to the Internet is
becoming increasingly widespread. Internet service is available
through public libraries and Internet cafes. Internet service
is available through cable, satellite and fiber-optic television
services.
More important, many new and highly portable Internet devices
and technologies are in current use. For example, many, if not
most, cellular "phones" and devices such as the Blackberry
provide robust Internet access and e-mail. Advertisements
regularly tout the speed and data capacity of new phones and
related devices. New devices and services being developed and
marketed will likely transform access to data and the Internet.
A recent New York Times article noted that very small, portable
and very inexpensive Internet devices may soon largely replace
laptop computers. Such devices are being given to the user free
of charge as part of Internet service contracts. These devices
will likely make Internet access essentially ubiquitous and
perhaps effectively essential for one to reasonably function in
society.
Developing technology may make it nearly impossible to regulate
or prohibit Internet use by sex offenders. Further more
activities of daily life may effectively or explicitly require
use of the Internet and Internet devices. Even now, a person
cannot read one of the two daily "newspapers" in Seattle without
the Internet. Home delivery of both Detroit papers - The
Detroit News and the Free Press - is only done three times per
week. On other days, the full paper can only be read online,
although an abbreviated version is available at newsstands. It
appears that members of the public increasingly send a "letter"
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or comment to a newspaper online. Internet technologies are
likely to become so integrated into and essential for
functioning in the world that numerous exceptions to
prohibitions on or control of Internet access may be necessary.
4. Probation and Parole Conditions Generally
The California Supreme Court has stated the general rule
regarding what are permissible conditions of probation as
follows:
The Legislature has placed in trial judges a
broad discretion in the sentencing process,
including the determination as to whether
probation is appropriate and, if so, the
conditions thereof. A condition of probation
will not be held invalid unless it "(1) has no
relationship to the crime of which the offender
was convicted, (2) relates to conduct which is
not in itself criminal, and (3) requires or
forbids conduct which is not reasonably related
to future criminality . . . ." Conversely, a
condition of probation which requires or forbids
conduct which is not criminal is valid if that
conduct is reasonably related to the crime of
which the defendant was convicted or to future
criminality. (People v. Lent (1975.) 15 Cal. 3d
481, 486 (citations omitted).)
However, it is well settled that a court's discretion is not
boundless. "A probationer has the right to enjoy a significant
degree of privacy, or liberty, under the Fourth, Fifth and
Fourteenth Amendments to the federal Constitution ?" (People v.
Hodgkin (1987) 194 Cal. App. 3d 795, 802, internal citations and
quotation marks omitted.) "Where a condition of probation
requires a waiver of precious constitutional rights, the
condition must be narrowly drawn; to the extent it is overbroad
it is not reasonably related to the compelling state interest in
reformation and rehabilitation and is an unconstitutional
restriction on the exercise of fundamental constitutional
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rights?" (People v. Pointer (1984) 151 Cal. App. 3d 1128, 1139;
In re Frank V. (1991) 233 Cal. App. 3d 1232, 1242; internal
quotation marks omitted.)
A parolee is subject to "extensive restrictions on the
individual's liberty. ? Society has a stake in whatever may be
the chance of restoring him to normal and useful life within the
law." (Morrissey v. Brewer (1972) 408 U.S.471, 482-483, 484.)
Nevertheless, parole conditions, like conditions of probation,
must be reasonably related to the crime of conviction or future
criminality. Parolees retain constitutional protection against
arbitrary and oppressive official action. A condition of parole
that bars lawful activity will be upheld only if the prohibited
conduct either (1) relates to the crime of conviction, or (2)
would reasonably deter future criminality. (In Re Corona (2008)
160 Cal. App. 4th 315, 321.)
5. Probation and Parole Conditions Specifically Prohibiting
Internet Access
Several federal courts of appeal, as well as a decision of the
California Court of Appeal, have held that an absolute
restriction upon Internet access by probationers and parolees
may be improper. The 10th Circuit Court of Appeals found that
an absolute restriction on Internet access was potentially too
narrow because the terms were unspecified and potentially too
broad because the prohibition restricted usage unrelated to the
defendant's crime. (U.S. v. White (2001) 244 F. 3d 1199, 1205.)
The court in U.S. v. Freeman (3rd Circuit 2003) 316 F. 3d 386,
392, stated: "There is no need to cut off . . . access to email
or benign Internet usage when a more focused restriction . . .
can be enforced by unannounced inspections of material stored
on the defendant's hard drive or removable disks." (Ibid.)
A California court has also found that prohibiting any use of a
computer by a convicted sex offender was overly broad, despite a
legitimate concern that the defendant could use the device for
crime. (In Re Ramon Stevens (2004) 110 Cal. App. 4th 1228,
1239.) The court essentially recommended "a focused restriction
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[that] could be enforced by unannounced inspections of material
stored on Stevens' hard drive or his removable disks" and
monitoring software.
6. Elimination of Judicial and Prison Authority Discretion to
Impose Conditions of Release Concerning Computer and Internet
Access
It may be argued that probation or parole necessarily involves
individual assessment of each person placed under supervision.
As each offender is different, individualized probation and
parole programs and conditions may be particularly important to
the probationer's or parolee's success. California has recently
implemented a program of risk assessment for sex offenders
pursuant to SARATSO - the State-Authorized Risk Assessment Tool
for Sex Offenders. An offender's SARATSO evaluation is used by
the court or parole authorities as one of the factors in
creating an effective release strategy.
This bill mandates restrictions on Internet access by any
probationer or parolee required to register as a sex offender.
Such mandatory conditions may interfere with the proper exercise
of judicial discretion. In a case where the court or the parole
authority found that restriction on the use of the Internet was
related to the defendant's and to his or her future criminality,
the court of authority could impose a specific Internet
restriction under existing law.
DO MANDATORY CONDITIONS OF PROBATION CONCERNING INTERNET ACCESS
INTERFERE WITH THE PROPER EXERCISE OF DISCRETION BY THE COURTS
AND THE PAROLE AUTHORITIES?
DOES A COURT OR THE PAROLE BOARD HAVE DISCRETION UNDER EXISTING
LAW TO RESTRICT AN INMATE'S OR PAROLEE'S USE OF THE INTERNET?
7. First Amendment Issues
Many commentators have noted for many years that the Internet
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has become the core technology for academic, governmental, and
commercial information exchange and storage. "Computers and
Internet access have become virtually indispensable in the
modern world of communications and information gathering."
(U.S. v. Peterson (2nd Cir. 2001) 248 F. 3d 79, 83-84.)
The United States Supreme Court has considered many cases
concerning restrictions on the use or content of the Internet.
The court described the Internet as a "vast library including
millions of readily available and indexed publications." (Reno
v. American Civil Liberties Union (1997) 521 U.S. 844.)
A California court in In re Stevens noted an important fact for
criminal defendants who may seek to challenge criminal charges
and convictions: "In recent years, the legal profession has
been fast drawn to cyberspace. Westlaw and Lexis are basic
research tools. Our state superior courts post their dockets
and other relevant information on the web. Opinions of the
California Supreme Court and Courts of Appeal are available on
the Internet within moments of filing. For better or worse, the
computer and the Internet have facilitated the writing of this
opinion." (In re Stevens, supra, 110 Cal. App. 4th 1228 at p.
1234.) A probationer or parolee who has no access to the
Internet may have a very difficult time researching his or her
case and filing documents with the courts.
One might suspect that business in the Capitol would grind to a
halt if e-mail, were unavailable. It can be argued that e-mail
is now indispensable for communication. E-mail and Internet
services are becoming more and more integrated - g-mail from
Google for example. Web logs (blogs) are now fully integrated
into political and public discourse. The use of Twitter has
become widespread, especially with political speech - speech
that is given special protections under the First Amendment.
The court in In re Stevens noted: "Restrictions on access to
the Internet necessarily curtail First Amendment rights. The
[Internet] is perhaps the most important model of free speech
since the founding of the Republic. ? The model for speech that
the framers embraced was the model of the Internet -
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distributed, non-centralized, fully free and diverse." (In re
Stevens, supra 110 Cal.App.4th at p. 1236.)
The court in In re Stevens did hold and emphasize that the state
has a compelling interest in preventing the use of the Internet
for sex crimes. However, the court noted that Internet
restrictions and prohibitions must be narrowly tailored to meet
constitutional standards. Such tailored measures could include
examination of the parolee's or probationer's computer and data,
and the use of monitoring software to allow parole or probation
authorities to essentially observe the person's Internet use.
DO PROHIBITIONS ON A PROBATIONER'S OR PAROLEE'S INTERNET ACCESS
AFFECT HIS OR HER FIRST AMENDMENT RIGHTS?
WOULD INTERNET USE PROHIBITIONS LIMIT A PROBATIONER'S OR
PAROLEE'S ABILITY TO RESEARCH HIS OR HER CASE AND FILE COURT
DOCUMENTS?
SHOULD ANY CONDITIONS ON A PROBATIONER'S OR PAROLEE'S INTERNET
ACCESS OR USE BE FOCUSED AND TAILORED, SUCH AS SEARCH AND
SEIZURE OF DEVICES AND DATA AND THE INSTALLATION OF MONITORING
SOFTWARE?
8. Issue Concerning How Information About a Sex Offender's Access
to the Internet Would be Used by Law Enforcement or Other
Persons and Entities
This bill requires specified persons registering as a sex
offender to inform the registering law enforcement agency
whether or not the person has access to a device with Internet
capability. The bill also requires registrants to inform the
registering agency within five days if the registrant obtains
such access, regardless of whether or not a computer was used to
facilitate the offense. These requirements apply to an offender
if the finder of fact (typically the jury) found that the
offender used a computer to facilitate the crime for which the
person must register.
The bill does not state how the information would be used by the
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SB 584 (Hollingsworth)
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registering agency. The bill does not state that this
information would be placed on the so-called Megan's Law
website. Existing law does provide that violation of any
requirement of the registration law is a misdemeanor if the
conviction for which registration is required is a misdemeanor
and a felony, if the underlying crime is a felony. This bill
essentially creates new crimes based on a sex offender's failure
to inform the registering agency about his or her access to an
Internet device.
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HOW WOULD INFORMATION ABOUT WHETHER OR NOT A REGISTERED SEX
OFFENDER HAS ACCESS TO AN INTERNET DEVICE BE USED BY LAW
ENFORCEMENT OR OTHER ENTITIES OR PERSONS?
9. Provision Requiring Written Court Approval Before a Parolee
can Use an Internet Device May be Impractical or Impossible to
Apply
This bill only allows a parolee who was imprisoned for a
registerable sex offense to use an Internet device with the
prior written approval of the court. The parole agent may
authorize a defendant to use an Internet device for employment
purposes. The bill also requires the court to impose numerous
other computer related conditions of parole. A criminal
defendant who is committed to prison as an inmate appears before
the court for the last time when the court sentences the
defendant and commits the defendant to prison. This inmate will
often be released on parole many years after sentence is
imposed. Sentences for sex crimes are often quite lengthy. It
would not be unusual for a court at sentencing to be deciding
matters of Internet access that will not occur for 10, 15 or
more years into the future. A court in 1994 would not
reasonably have been able to anticipate the explosion of
portable Internet devices that are omnipresent in society today.
CAN A SENTENCING COURT MAKE MEANINGFUL DECISIONS ABOUT A
CRIMINAL DEFENDANT'S INTERNET ACCESS WHILE THE DEFENDANT IS ON
PAROLE, WHEN THE DEFENDANT MAY NOT BE RELEASED ON PAROLE FOR
MANY YEARS?
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