BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1204 (Runner) 4
As Amended April 12, 2010
Hearing date: April 20, 2010
Penal Code
JM:dl
SOCIAL NETWORKING WEBSITES
PROHIBITION APPLIED TO PAROLED SEX OFFENDERS
HISTORY
Source: Author
Prior Legislation: AB 2208 (Torres) - 2010 pending in Assembly
Public Safety
SB 584 (Hollingsworth) held in Senate Public Safety
Support: California State Sheriffs' Association; Peace Officers
Research Association of California; District Attorney
of Riverside County; San Bernardino County Sheriff
Opposition:American Civil Liberties Union; Taxpayers for
Improving Public Safety
KEY ISSUES
SHOULD EVERY PAROLEE WHO IS REQUIRED TO REGISTER AS A SEX
OFFENDER BE PROHIBITED, AS A CONDITION OF PAROLE, FROM OPENING
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AN ACCOUNT ON OR PARTICIPATING IN A SOCIAL NETWORKING WEBSITE,
AS SPECIFIED?
SHOULD EVERY SEX OFFENDER REGISTRANT BE REQUIRED TO PROVIDE THE
FOLLOWING INFORMATION AS PART OF REGISTRATION: ON-LINE
ADDRESSES, E-MAIL ADDRESSES AND INSTANT MESSAGING USER NAMES, AS
SPECIFIED?
(CONTINUED)
SHOULD A VIOLATION OF THE PROHIBITIONS OR REQUIREMENTS OF THIS BILL
BE A MISDEMEANOR?
SHOULD THE LAW SPECIFICALLY PROVIDE THAT SOCIAL NETWORKING WEBSITES
MAY "ACCESS DATA [HELD BY THE DEPARTMENT OF JUSTICE] THAT IS
NECESSARY TO PURGE ACCOUNTS OF REGISTERED SEX OFFENDERS?"
PURPOSE
The purposes of this bill are to 1) prohibit any parolee who is
required to register as a sex offender from opening an account
on or participating in a social networking Web site, as
specified, 2) require each sex offender registrant to provide,
as part of registration with law enforcement, his or her on-line
addresses, e-mail addresses and instant messaging user names; 3)
provide that a violation of the social networking prohibition or
the new registration requirement is a misdemeanor;and 4)
authorize the operator of a social networking website to access
data from the Department of Justice that is necessary for the
web site to purge the accounts of registered sex offenders .
Current law generally requires a person convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with law enforcement officials, as
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specified.<1> (Pen. Code 290.) Registration generally must
be updated annually, within five working days of a registrant's
birthday. (Pen. Code 290.012 (a).) In some instances,
registration must be updated once every 30 or 90 days, as
specified. (Pen. Code 290.011, 290.012.)
Current law requires registrants to provide the following
information:
A signed statement giving information as required by the
Department of Justice (DOJ) and giving the name and address
of the person's employer and place of employment;
The fingerprints and a current photograph of the person
taken by the registering official;
The license plate number of any vehicle owned by,
regularly driven by, or registered in the name of the
person;
Notice to the person that, in addition to other
specified requirements, he or she may have a duty to
register in any other state where he or she may relocate;
and
Copies of adequate proof of residence, as specified.
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<1> Penal Code Section 290 (b) provides: "Every person
described in subdivision (c) for the rest of his or her life
while residing in, or, if he or she has no residence, while
located within California, or while attending school or working
in California, as described in Section 290.002 and 290.01, shall
be required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, 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 residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
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(Pen. Code 290.015.)
Current law provides that it is a crime, punishable as
specified, for any person who is required to register to
willfully violate any requirement of this section. (Pen. Code
290.018.) Specifically, current statute includes the following
provisions:
Misdemeanor underlying sex crime : Any person who is
required to register based on a misdemeanor conviction or
juvenile adjudication who willfully violates any
requirement of the Act is guilty of a misdemeanor
punishable by imprisonment in a county jail not exceeding
one year. (Pen. Code 290.018, subd. (a).)
Felony underlying sex crime : Except as provided,<2> any
person who is required to register under the Act based on a
felony conviction or juvenile adjudication who willfully
violates any requirement of the Act or who has a prior
conviction or juvenile adjudication for the offense of
failing to register under the Act and who subsequently and
willfully violates any requirement of the Act is guilty of
a felony and shall be punished by imprisonment in the state
prison for 16 months, or 2 or 3 years. (Pen. Code
290.018, subd. (b).)
Transient registrants : Transient registrants who
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<2> The exceptions are: if the person has been adjudicated a
sexually violent predator, as specified, and they fail to verify
registration every 90 days, the penalty is a wobbler, punished
by imprisonment in the state prison or jail, as specified (subd.
[f]); any person who fails to provide proof of residence as
specified, regardless of the offense upon which the duty to
register is based, is guilty of a misdemeanor, as specified
(subd. [h]); and, in addition to any other penalty imposed under
this section, the failure to provide information required on
registration and re-registration forms of the Department of
Justice, or the provision of false information, is a crime
punishable by imprisonment in a county jail for a period not
exceeding one year [subd. [j]).
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willfully fail to comply with the requirement of
registering no less than every 30 days is guilty of a
misdemeanor, punishably by jail for at least 30 days, but
not exceeding six months.<3> "A person who willfully fails
to comply with the requirement that he or she reregister no
less than every 30 days shall not be charged with this
violation more often than once for a failure to register in
any period of 90 days. Any person who willfully commits a
third or subsequent violation of the (transient
registration requirements) shall be punished (based on
their underlying offense, as described above). (Pen. Code
290.018, subd. (g).)
This bill provides that parolee who is required to register as a
sex offender shall, as a condition of parole, shall be
prohibited from opening an account on, or otherwise
participating in, a social networking Internet Web site, as
defined.
This bill provides that the prohibition on opening an account on
or participating in a social networking site shall apply to all
registrants who are paroled on or after January 1, 2011, and all
previously registered parolees 10 days after receiving notice,
or after re-registration.
This bill defines a social networking Internet Web site as one
of the following:
A Web site that permits members, often including
juveniles, to communicate with acquaintances and strangers,
and allows individuals to:
o Construct a public or semi-public profile
within a bounded system.
o Articulate a list of other users with whom
they share a connection.
o View and traverse their list of connections
and the lists of others within the system.
An Internet-based dating Web site.
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<3> Registrants who are sexually violent predators are
expressly excepted from this provision.
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An Internet-based service that expressly prohibits
participation by convicted sex offenders.
This bill provides that a social networking Internet Web site
shall not include a "professional networking" site or an
electronic commerce Internet Web site, unless the service
prohibits participation by convicted sex offenders.
This bill defines a "professional networking Internet Web site"
as an Internet-based service that primarily allow individuals to
build a list of professional or business connections.
This bill defines an "electronic commerce Internet Web site" as
an Internet-based service primarily for the sale, purchase or
auction of goods.
This bill provides that a person required to register as a sex
offender shall notify DOJ of all of the registrant's online
addresses, e-mail addresses, and instant messaging user names no
later than December 31, 2011, and thereafter within 30 days of
establishing a new online account. Notification may be filed in
the same manner as filing a new (residence) address or online,
as permitted by DOJ.
This bill provides that DOJ may permit social networking sites
to access data necessary to purge accounts of registered sex
offenders.
This bill provides that a person required to register as a sex
offender must acknowledge in writing the following at the time
of registration:
The registrant, while on parole, is prohibited from
opening a social networking Web site account or
participating in such a site.
The registrant, regardless of parole status, must notify
DOJ of his or her online addresses, e-mail addresses, and
instant messaging user names no late than no later than
December 31, 2011, and thereafter within 30 days of
establishing a new online account.
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This bill provides that violation of the requirements and
prohibitions in the bill is a misdemeanor.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<4>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
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<4> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
Paroled sex offenders must comply with general and
specific conditions of parole. Additionally, Megan's
Law requires sex offenders to register their street
addresses with local police.
SB 1204 prohibits paroled sexual predators from
opening accounts on social networking websites like
Facebook, Twitter, MySpace. The bill also requires sex
offenders who have completed parole to register all
their online addresses with the California Department
of Justice (DOJ).
While social networking sites are a great way for
people to connect, they can also create a virtual
shopping mall for sex offenders on the prowl. SB 1204
will ban sexual predator's access to social networking
website as a condition of parole and will require them
to register all their online addresses with DOJ once
parole has been served. Online address registration
will allow the state to provide information to social
networking sites which may choose to purge potential
predators.
With passage of this bill, California would be the
second state to enact such a law. New York became the
first when it passed a similar bill in 2008, known as
the Electronic Securing and Targeting of Online
Predators Act (e-STOP), which was sponsored by New
York Attorney General Andrew Cuomo.
Under e-STOP, many sexual predators are banned
outright from using social networking sites on the
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Internet while on probation or parole. Also, convicted
sex offenders must register all of their e-mail
addresses, screen names, and other Internet
identifiers with the state. That information is then
made available to social networking sites so they can
purge potential predators from their online worlds.
On February 2, 2010, Cuomo declared that more than
4,336 registered New York sex offenders had been
purged from major social network websites since the
bill passed, including a man convicted of assaulting a
14-year-old boy and another man who raped a 2-year-old
girl.
SB 1204, California's version of e-STOP, will allow
the state to better protect children from sexual
predators who establish online addresses in order to
develop 'cyber-relationships' with young people. This
legislation will help DOJ identify these sexual
offenders and restrict their access to social
networking websites used by children.
2. Fears of On-line Victimization of Children Appear to be
in Excess of Actual Dangers
In 2005, a study by the Crimes Against Children Research Center
at the University of New Hampshire found that one in seven
children had received sexual solicitations while on-line. The
report was met with much alarm. However, the authors reported
that the percentage of children receiving such solicitations has
actually dropped by two percentage points since an earlier study
in 2000.
Perhaps more important than percentage of children who had
received sexual solicitations, the authors noted that many of
these propositions were "coming from other kids, or just people
who are acting weird on line." Further, the vast majority of
such solicitations (90%) were received by minors in their teens,
not prepubescent children.
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Numerous recent studies have confirmed that fears about the
use of the Internet by pedophiles and persons targeting
minors for sexual crimes have been greatly exaggerated. The
producers of a PBS Frontline documentary, "Growing Up
Online" observed:
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.'
There have been a number of studies that have considered
the use of the Internet, including social networking Web
sites, by sex offenders who target children. Arguably, the
most important studies have included the Youth Internet
Safety Study, which was published in 2000 and updated in
2006 and the National Juvenile Online Victimization (N-JOV)
Study. The N-JOV study was based on interviews with law
enforcement investigators. The YISS generally involved
interviews with young Internet users, ages 10-17. Much of
the research for these studies was conducted by the Crimes
Against Children Research Center at the University of New
Hampshire.
1st Youth Internet Safety Study (YISS) from
1999-2000:
o 19% (one in five) study participants received a
sexual solicitation or approach over the Internet in
the last year
o 3% (one in 33) received an aggressive sexual
solicitation where a solicitor asked to meet them
somewhere, called them on the telephone, sent them
mail, money or gifts.
o 25% (one in four) had an unwanted exposure to
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pornography online in the last year.
o 6% (one in 17) youth were threatened or harassed
online in the last year.
o 14% of study participants "made rude or nasty
comments to someone on the Internet"
o 1% of participants had "used the Internet to
harass or embarrass someone they were mad at"
increased from 1% to 9%.
2nd Youth Internet Safety Study from 2005-2006:
o 13% (one in five) study participants received a
sexual solicitation or approach over the Internet in
the last year.
o 3% (one in 33) received an aggressive sexual
solicitation where a solicitor asked to meet them
somewhere, called them on the telephone, sent them
mail, money or gifts.
o 34% (one in three) had an unwanted exposure to
pornography online in the last year.
o 9% (one in 11) youth were threatened or harassed
online in the last year.
o 4% of youth in the study said that somebody had
asked them for a sexual picture. This was a new and
growing finding in the second study, likely
indicating technological advances, such as high-speed
Internet connections and increased bandwith.
o 28% of study participants "made rude or nasty
comments to someone on the Internet"
o 9% of participants had "used the Internet to
harass or embarrass someone they were mad at"
increased from 1% to 9%.
Findings Generally Applicable to both YISS Studies:
Approximately 90% of young people receiving sexual solicitations
were ages 13 and older. "Younger children rarely reported
solicitations." A small percentage of young people who reported
these incidents were distressed by them. Only a fraction of all
episodes were reported to authorities such as a law enforcement
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agency, an Internet Service Provider, or a hotline. About
one-quarter of the youth in who encountered a sexual
solicitation or approach told a parent. About 40% of those
reporting an unwanted exposure to pornography told a parent.
3. Parole Conditions Generally
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 and probation conditions 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.)
4. Elimination of Correctional Authority and Court Discretion to
Impose Conditions of Release Concerning Computer and Internet
Access
It may be argued that parole necessarily involves individual
assessment of each parolee. As each offender is different,
individualized parole programs and conditions may be
particularly important to the 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 prohibits a paroled sex offender from using or joining
a social networking Internet Website. Such mandatory conditions
may interfere with the proper exercise of judicial and executive
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
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or authority could impose a specific Internet restriction under
existing law.
DO MANDATORY CONDITIONS OF PAROLE CONCERNING INTERNET ACCESS
INTERFERE WITH THE PROPER EXERCISE OF DISCRETION BY THE COURTS
AND THE PAROLE AUTHORITIES?
DOES THE PAROLE BOARD OR A COURT HAVE DISCRETION UNDER EXISTING
LAW TO RESTRICT AN INMATE'S OR PAROLEE'S USE OF THE INTERNET?
WOULD THE AUTHOR'S INTENT BE REALIZED IF THE PAROLE
AUTHORITIES WERE DIRECTED TO DETERMINE IF ANY PERSON
REQUIRED TO REGISTER AS A SEX OFFENDER SHOULD BE PROHIBITED
FROM USING A SOCIAL NETWORKING WEB SITE AS A CONDITION OF
PAROLE?
5. Probation and Parole Conditions Specifically Prohibiting
Internet Access; Issues of First Amendment Rights of Free
Speech and Association
The Internet 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.) It is thus not surprising that the use of
computers and the Internet by parolees and probationers has
become a pressing issue in criminal law in the last decade.
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 . . .
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can be enforced by unannounced inspections of material stored
on the defendant's hard drive or removable disks." (Ibid.)
The 9th Circuit in a California case has also stated that
Internet and computer restrictions on a probationer must be
focused and reasonable. (U.S. v. Goddard (9th Cir. 2008) 537
F.3d 1087.) It is important to note that Goddard involved a
probationer who had been convicted of possession of child
pornography that he downloaded from the Internet. If the 9th
Circuit requires relatively focused Internet restrictions for a
defendant who used the Internet to obtain child pornography, it
is likely that a prohibition on social networking activity by a
parolee who did not target children on-line would face
difficulties in federal courts.
A California appellate court has also found that prohibiting any
use of a computer by a paroled 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 defendant in Stevens did not use a computer to
commit the crime for which he was serving a parole term. The
court essentially recommended "a focused restriction [that]
could be enforced by unannounced inspections of material stored
on Stevens' hard drive or his removable disks" and monitoring
software. The court in Stevens balanced the parolees First
Amendment rights of free speech and free association against the
need to protect the public, particularly while the parolee was
under state supervision. (Id, at p. 1237.)
The court in In re Stevens noted the policy reasons that
restrictions on Internet use must be carefully considered and
applied: "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 -
distributed, non-centralized, fully free and diverse." (In re
Stevens, supra 110 Cal.App.4th at p. 1236.)
SHOULD ANY CONDITIONS ON A PROBATIONER'S OR PAROLEE'S USE OR
SOCIAL NETWORKING SITES BE FOCUSED AND TAILORED, SUCH AS SEARCH
AND SEIZURE OF DEVICES AND DATA AND THE INSTALLATION OF
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MONITORING SOFTWARE?
6. Restrictions on Internet Social Networking - Particular Issues
of Legal Research Consultation with Experts and Interested
Parties; Legal and Political Advocacy
The court in In re Stevens (Comment #5) noted that the Internet
has become particularly important in the law: "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." (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.
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. Political and policy Websites could
fall under the definition of a social networking Web site under
this bill. Depending on how the bill is applied, parolees could
be hindered in researching the law, consulting with experts,
consulting with others in similar circumstances and advocating
for changes in the laws. Such activity would not likely
constitute professional networking or Internet commerce - two
activities that are not included in the prohibitions imposed by
this bill.
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. (Id, at pp.
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1234-1239.)
WOULD A BLANKET PROHIBITION ON A PAROLEES USE OF SOCIAL
NETWORKING, WITH LIMITED EXCEPTIONS FOR PROFESSIONAL NETWORKING
AND ON-LINES SALES SITES, LIMIT A PAROLEE'S ABILITY TO RESEARCH
HIS OR HER CASE, CONSULT EXPERTS AND APPROPRIATELY ADVOCATE FOR
CHANGES IN THE LAW?
7. Issue Concerning How Information About a Sex Offender's Access
to the Internet Would be Used by Law Enforcement and Private
Entities Operating Social Networking Web Sites
This bill requires each sex offender registrant to inform the
registering law enforcement agency of the registrant's online
addresses, e-mail addresses, and instant messaging user names.
The bill also requires registrants to inform the registering
agency of any changes in these matters within 30 days. The bill
does not state how the information would be used by the
registering agency.
The bill does, however, provide that DOJ "may permit" social
networking Web sites to access this information in order to
allow a site "to purge accounts of registered sex offenders."
Such information would not be available to the public on the
Internet Web site.
The bill also does not state that the only the electronic
addresses and related information from registered sex offenders
who are on parole would be given to commercial Web site
companies. As such, the bill could be interpreted to authorize
commercial Internet Web site companies to obtain e-mail
addresses, online addresses and instant message user names of
any registered sex offender and to purge these persons from such
sites, regardless of whether the registrant poses a danger to
the public or has misused the service. Companies could feel
compelled, perhaps by pressure of media reports, to drop all
registered sex offenders. Because the use of electronic
communications is arguably essential in modern employment and
commerce, this provision could greatly hinder a person's
functioning. As such, the bill could arguably destroy the
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protections in existing law that bar use of sex offender
information for purposes such as employment, credit, education
and "benefits, privileges or services provided by any business
establishment." (Pen. Code 290.46, subd. (l)(2).) Arguably,
this bill would move the sex offender registration law towards
being unconstitutional ex-post facto punishment.
WOULD THIS BILL ALLOW COMMERCIAL WEB SITE OPERATORS TO ACCESS
OTHERWISE PRIVATE INFORMATION ABOUT A REGISTERED SEX OFFENDER'S
ELECTRONIC ADDRESSES AND ON-LINE NAMES AND TO USE THAT
INFORMATION TO PURGE ANY SEX OFFENDER'S ACCOUNT, REGARDLESS OF
WHETHER OR NOT THE REGISTRANT IS ON PAROLE AND REGARDLESS OF THE
REGISTRANT'S BACKGROUND OR CRIME?
8. Concerns about Social Isolation of Persons Required to
Register as Sex Offenders
Social networking has become virtually ubiquitous. Facebook
alone claims to have over 400 million active subscribers.
People use social networking sites for the whole range of human
activity. Arguably, prohibiting parolees from using social
networking sites, and effectively allowing or encouraging social
networking sites to ban registered sex offenders subjects these
persons to social isolation. Recent reports by the California
Sex Offender Management Board have stressed the danger of
isolating sex offenders, particularly as concerns residency
restrictions. Such restrictions can be destabilizing. Social
isolation in the electronic sphere could greatly exacerbate the
destabilizing isolation sex offenders face.
DOES GIVING A WEB SITE OPERATOR ACCESS TO OTHERWISE PRIVATE
INFORMATION VIOLATE LEGITIMATE PRIVACY EXPECTATIONS AND DOES
THIS MOVE THE REGISTRATION LAW TOWARDS BEING PUNITIVE?
9. Recommendations of the Sex Offender Management Board
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AB 1015 (Chu), Chapter 338, Statutes of 2005, created the Sex
Offender Management Board (SOMB). According to the author of AB
1015:
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 return to the
community, with a short period of time under direct
supervision, either on parole, probation or
conditional release. [W]hen sex offenders are under
direct supervision, [we need] a comprehensive and
cohesive network of interventions to control the
behavior of sex offenders and prevent recidivism.
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.
Even though a known sex offender living near a park
may seem like the most obvious threat, far more
Californians will be victimized in their own homes
by acquaintances or family members. The lack of
significant in-home intervention and prevention
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resources is symptomatic of an approach that
fundamentally misunderstands the extent and nature
of sexual violence. CASOMB acknowledges the broader
context of sexual victimization.
No two sex offenders pose the same level of risk, nor
can they be managed or supervised [identically]. Laws
and policies that fail to take into account
differences [in risk among offenders] will misallocate
valuable resources and misunderstand 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.)
10. Vagueness Issues
Vagueness Issues Generally
A vague statute is unconstitutional because it fails to
give adequate notice to a defendant of what behavior is
prohibited and thus does not provide due process of law.
(Connally v. General Const. Co. (1926) 269 U.S. 385, 391. )
A corollary to the vagueness doctrine is the principle of
overbreadth. A statute is overbroad where it defines
innocuous or innocent activity as being criminal. "The
overbreadth doctrine provides that 'a governmental purpose
to control or prevent activities constitutionally subject
to state regulation may not be achieved by means which
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sweep unnecessarily broadly and thereby invade the area of
protected freedoms.'" (Williams v. Garcetti (1993) 5
Cal.4th 561, 577, citations omitted.) Overbreadth has a
particular meaning in First Amendment cases. Overly broad
statutes create a chilling effect on protected speech and
expressive conduct. (Broadrick v. Oklahoma (1973) 413
U.S. 601, 612.)
The "void for vagueness" doctrine may apply a number of
definitions in the bill. The following paragraphs consider
specific examples.
Social Networking Internet Web Site
The basic definition of "social networking Internet Web site"
may be attacked as vague. Although the contemplated site may be
Facebook or MySpace, as mentioned above, the definition of
"social networking Internet 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. 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 a "social
networking Internet Web site" in the future. If a registered
sex offender cannot be reasonably certain what constitutes such
a site or service, this bill must fail as a violation of due
process.
The term "social networking Internet Web site" is arguably
overly broad in that law enforcement could apply the term in an
arbitrary way. To pass constitutional muster, criminal laws
cannot be arbitrary and selectively enforced.
Exceptions for "Professional Networking Internet Web Site"
and "Electronic Commerce Internet Website"
The terms describing Web sites that are excluded from the
reach of the bill may be vague. The term "professional
networking Internet Web site" is defined as an Internet
service that "exists primarily for the purpose of allowing
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individuals to build a list of professional or business
connections." It may be difficult to determine whether a
professional networking site, such as LinkedIn, exists
"primarily" for establishing or maintaining professional
connections. It would appear that most professional
networking sites have an important social function. That
may seem obvious, considering that most people socialize
with others who are in the same profession or
socio-economic class. It also appears that most social
networking sites can be used for professional and business
development. MySpace, which is considered a prototypical
social networking site, may be the primary tool for
musicians and other artists to essentially market
themselves.
Similar concerns arise from the term "electronic commerce
Internet Website." The obvious example of such a site
would be eBay. Even eBay, however, has a strong social
aspect. Many people connect through eBay and more
specialized sites on a social basis. There are whole cyber
communities of people interested in war memorabilia,
vintage instruments, dolls, et cetera. Again, it may be
difficult to determine whether or not a site is "primarily"
used to buy, sell or auction goods. Further, a person who
seeks illicit sexual contact with children could perhaps
avoid detection under this bill by using electronic
commerce sites. There are myriad sites that cater to young
children, princess sites and the like. One could be hard
pressed to say whether the sites are primarily for
networking about some interest, or rather are designed to
sell dolls, books, videos are other items.
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ARE THE TERMS USED IN THIS BILL SO VAGUE THAT A PAROLEE COULD
NOT CLEARLY DETERMINE WHAT IS FORBIDDEN OR REQUIRED BY THE BILL?
11. New York State Law on which this Bill is Based
Several other states and Federal Government have enacted
legislation aimed at regulating sex offenders use of the
Internet or social networking sites. New York requires a
registered sex offender to provide the names of any Internet
accounts or screen names used by the offender. (NYC CLS Correc.
168-a(1)(b).) New York also requires 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.
168-b(A).) New York also prohibits specified sex offenders on
probation or conditional release from using social networking
Web sites. (NYC CLS Penal 65.10(4a); NYC CLS Correc.
168-l(c).)
This bill is based on the New York law. It appears that the New
York law prohibiting sex offenders on probation or conditional
release from using social networking sites applies to a
relatively limited class of sex offenders, It appears that such
offenders fall into these categories: 2) The victim was under
the age of 18 (2) The offender was determined to be of high risk
by a review board. (3) "The Internet was used to facilitate the
commission of the crime.
The annotated New York codes do not include any published cases
on the new law. It thus cannot be determined what, if any,
challenges might be brought against the New York law.
It thus appears that this bill - in prohibiting the use of
social networking Web sites by any paroled sex offender - is
much broader than the New York law on which the bill is based.
DOES THE NEW YORK LAW PROHIBITING USE OF A SOCIAL NETWORKING
WEBSITE BY SEX-OFFENDER WHO IS ON PROBATION OR CONDITIONAL
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RELEASE, A LAW UPON WHICH THIS BILL IS BASED, APPLY TO A
PROBATIONER WHO 1) COMMITTED A CRIME AGAINST A MINOR, 2)
COMMITTED A CRIME THROUGH USE OF THE INTERNET, OR 3) WAS FOUND
TO BE A HIGH-RISK OFFENDER BY AN EXPERT BOARD OF EXAMINERS?
IS THE PROHIBITION IN THIS BILL ON THE USE OF A SOCIAL
NETWORKING SITE BY ANY PAROLED REGISTERED SEX OFFENDER MUCH
BROADER THAN THE NEW YORK STATE LAW ON WHICH THIS LAW WAS
BASED?
12. 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. (Pen. Code 288.3, subd. (a).)
Additionally, Penal Code Section 288.4, subdivision (a),
states, "Any person who, motivated by an unnatural or
abnormal sexual interest in children, arranges a meeting
with a minor or a person he or she believes to be a minor
for the purpose of exposing his or her genitals or pubic or
rectal area, having the child expose his or her genitals or
pubic or rectal area or engaging in lewd or lascivious
behavior, shall be punished by up to one year in the county
jail or by fine of up to $5,000 or both imprisonment and
fine". If that person arranges to meet a minor and goes to
that meeting place, he or she shall be punished by a term
of two, three, or four years in state prison. (Pen. Code
288.4, subd. (b).) As noted above, these statutes punish
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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.
DO EXISTING LAWS PROHIBIT, PUNISH AND DETER THE USE OF
INTERNET SITES AND OTHER ELECTRONIC COMMUNICATION DEVICES
BY ADULTS TO LURE CHILDREN INTO SEXUAL ACTIVITY
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