BILL ANALYSIS �
AB 755
Page 1
Date of Hearing: April 26, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 755 (Galgiani) - As Amended: April 25, 2011
SUMMARY : Requires every registered sex offender to inform the
law enforcement agency with which he or she last registered of
all internet identifiers or service providers and must sign a
statement acknowledging this responsibility. Specifically, this
bill :
1)Requires any registered sex offender, as specified, who adds
or changes his or her account with an Internet service
provider or who adds or changes an Internet identifier, must
send written notice to the law enforcement agency where he or
she is currently registered within 24 hours.
2)Requires that law enforcement agency or agencies make this
information available to the California Department of Justice
(DOJ) or a third-party. Registered sex offenders must provide
all Internet identifiers, as specified, upon immediately upon
enactment of this bill.
3)Defines the following:
a) "Internet service provider" is any business,
organization, or other entity providing directly to
consumers a computer and communications facility through
which a person may obtain access to the Internet. An
Internet service provider does not include a business,
organization, or other entity that provides only
telecommunications services, cable services, or video
services, or any system operated or services offered by a
library or educational institution.
b) "Internet identifier" is any electronic mail address,
user name, screen name, or similar identifier used for the
purpose of Internet forum discussions, Internet chat room
discussions, instant messaging, social networking, or
similar Internet communication.
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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 DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
1)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
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physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
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
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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).]
2)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).]
3)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).]
4)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, 2 or 3 years. �Penal Code
Section 290.018(a)(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Assembly Bill
755 will provide an added barrier of protection for the
children of California as they come together in today's
virtual playground. The Internet is one of the most helpful
technological inventions of the century; however, it has also
provided an alternate avenue for sex offenders to pray on
California's youth. Offenders are now moving from the streets
of California to today's virtual play grounds. The growing
use of the Internet by California's youth places them at
greater risk of being solicited by sex offenders. According
to a report published in 2008, '93% of American youth age�s]
12-17 use the Internet, and 58% have created a? profile, �and]
nearly half (49%) use this form of communication to develop
new friends.'
"In 2008, the state of New York addressed this very issue and
enacted the Electronic Security and Targeting of Online
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Predators Act, also known as e-STOP. To date, '�the bill]
has resulted in the removal of 11,721 profiles associated with
4,336 dangerous sexual predators registered in �the state of]
New York.' California has the highest population of sex
offenders in the nation. In this Internet age, it is time
California modernizes it's 'Sex Offender Registration Act' to
protect the safety and wellbeing of California's children -
our future.
"Mirroring New York law, Assembly Bill 755 would create
California's Electronic Security and Targeting of Online
Predators Act, or e-STOP of California. This bill will amend
the Act in two ways. First, AB 755 will require convicted sex
offenders to register any Internet service provider accounts
and Internet identifiers (such as electronic mail addresses,
user names, screen names, or similar identifiers) to DOJ. And
secondly, the DOJ would then provide this information upon
request to certified third-parties, to allow them to restrict
or remove sex offenders from their services.
"e-STOP of California is an important bill that will establish
vital protections against sexual predators so that
Californians - especially our children - can more safely use
the Internet."
2)Sex Offender 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).]
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The registration statute does not distinguish crimes based on
severity and instead requires any person convicted of a listed
crime to register annually within five days of his or her
birthday and for the rest of his or her life. �Penal Code
Section 290.012(a).] Although most registerable offenses are
felonies, there some alternate felony/misdemeanor penalties
and a few straight misdemeanors. �See Penal Code Section
243.4 (sexual battery); Penal Code Section 266c (obtaining
sexual consent by fraud); Penal Code Section 311.1, 311.2(c),
311.4, 311.11 (child pornography); Penal Code Section 647.6
(annoying or molesting a child); and, Penal Code Section
314(1)(2) (indecent exposure).]
3)First Amendment and a Chilling Effect on Free Speech : The
First Amendment to the United States Constitution guarantees
to all citizens the right to freedom of speech and
association. The pertinent Clause of the First Amendment,
applied to the States through the Fourteenth amendment.
�Thornhill v. Alabama, 310 U.S. 88, 95 (1940) provides that
"Congress shall make no law . . . abridging the freedom of
speech . . . . " (United States Constitution. Amend. I.)
Generally, sex offenders who have completed their terms of
imprisonment and completed parole have all of the other rights
and benefits accorded to all citizens.
In Reno v. ACLU (1997) 521 U.S. 844, the Supreme Court stated
that "The Internet is an international network of
interconnected computers . . . enab�ling] tens of millions of
people to communicate with one another and to access vast
amounts of information from around the world. The Internet is
a unique and wholly new medium of worldwide human
communication." (Id. at 850.)
"Anyone with access to the Internet may take advantage of a wide
variety of communication and information retrieval methods.
These methods are constantly evolving and difficult to
categorize precisely. �A]ll of these methods can be used to
transmit text; most can transmit sound, pictures and moving
video images. Taken together, these tools constitute a unique
medium - known to its members as cyberspace - located in no
particular geographical location but available to anyone,
anywhere in the world, with access to the Internet."
Following its expansive discussion of the many benefits of the
Internet, the Court turned its attention to First Amendment
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issues, finding that the "CDA �Communications Decency Act] is
a content-based regulation of speech. The vagueness of such a
regulation raises special First Amendment concerns because of
its obvious chilling effect on free speech," citing Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1048-1051 (1991). The
Court further stated that the CDA, as a criminal statute, "may
well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images." As a
practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague
regulations, poses greater First Amendment concerns than those
implicated by the civil regulations reviewed in Denver Area
Educational Telecommunications Consortium, Inc. v. F.C.C., 518
U.S. 727 (1996).
"Given the vague contours of the statute, it unquestionably
silences some speakers whose messages would be entitled to
constitutional protection. The CDA's burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. We are persuaded that the CDA
lacks the precision that the First Amendment requires when a
statute regulates the content of speech. In order to deny
minors access to potentially harmful speech, the CDA
effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted
to serve." (Id. at 874.)
The Court further held that the Government may not reduce the
adult population to only what is fit for children.
"Regardless of the strength of the government's interest in
protecting children, the level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a
sandbox," citing Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 74-75 (1983).
The Court concluded, "As a matter of constitutional tradition,
in the absence of evidence to the contrary, we presume that
governmental regulation of the content of speech is more
likely to interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of
expression in a democratic society outweighs any theoretical
but unproven benefit of censorship." (Id at page 885.)
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The United States Supreme Court reaffirmed the principles
recited by Reno v. ACLU, supra, in Ashcroft v. ACLU, 542 U.S.
656 (2004), when it stated, "The purpose �of the strict
scrutiny test] is to ensure that speech is restricted no
further than necessary to achieve the goal, for it is
important to assure that legitimate speech is not chilled or
punished. For that reason, the test does not begin with the
status quo of existing regulations, then ask whether the
challenged restriction has some additional ability to achieve
Congress' legitimate interest. Any restriction on speech
could be justified under that analysis. Instead, the court
should ask whether the challenged regulation is the least
restrictive means among available, effective alternatives."
(Id.)
In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002),
the Supreme Court further stated that "the mere tendency of
speech to encourage unlawful acts is not a sufficient reason
for banning it. The government 'cannot constitutionally
premise legislation on the desirability of controlling a
person's private thoughts,' " citing Stanley v. Georgia, 394
U.S. 557, 566 (1969.) First amendment freedoms are most in
danger when the government seeks to control thought or to
justify its laws for that impermissible end. The right to
think is the beginning of freedom, and speech must be
protected from the government because speech is the beginning
of thought.
"�T]he government may not prohibit speech because it increases
the chances that an unlawful act will be committed at some
indefinite future time," Ashcroft v. The Free Speech
Coalition, supra, at 253, citing Hess v. Indiana, 414 U.S.
105, 108 (1973). "�T]he government has shown no more than a
remote connection between speech that might encourage thoughts
or impulses and any resulting child abuse. Without a
significantly stronger, more direct connection, the Government
may not prohibit speech on the ground that it may encourage
pedophiles to engage in illegal conduct." (Ashcroft, supra,
at 253 - 254.) Is it possible that requiring an offender to
register his or her e-mail and other internet identifiers will
create a chilling effect on his or her on-line communication?
4)Other States : Several other states and the Federal Government
have enacted legislation aimed at regulating sex offender use
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of the Internet or social networking sites. In particular,
New York 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-b(1)(a).]
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
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
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information or of a change in the person's access to or use of
a computer or other device with Internet capability or who
provides false information concerning the person's access to
or use of a computer or any other device with Internet
capability is guilty of a crime of the fourth degree." �NJ
Stat. Ann. Section 2C: 7-2(d)(2); Brant at 796.]
Federal law requires all sex offenders to provide Internet
identifiers, such as e-mail addresses and designations to the
National Sex Offender Registry. (42 U.S.C. 16915a.) "While
the federal laws that require information sharing and
reporting by Web site operators do not affect offenders as
severely as those state laws that entirely prohibit computer
or Internet access, all of these laws undoubtedly demonstrate
an ever-increasing trend by federal and state legislatures in
tightening the rope on convicted sex offenders." (Brant at
796.)
"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
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 in 2008. The New York (NY) can 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
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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
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
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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."
�.]
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.]
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.
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Thielemann (3rd Cir. 2009) 575 F.3rd 265; U.S. vs. Paul (5th
Cir. 2001) 274 F. 3rd 155; U.S. vs. Granger (4th Cir. 2004)
117 F. App 247.]
California law has long held that probationers and parolees have
fewer constitutional rights than ordinary people, although
conditions of probation or parole must be "reasonable since
parolees and probationers retain constitutional protections
against arbitrary and oppressive official action." �In re
Ramon Stevens (2004) 119 Cal.App.4th 1228, 1233; Morrissey vs.
Brewer (1972) 408 U.S. 471, 477.] The Ninth Circuit in U.S.
vs. Reardon affirmed the imposition of a probation condition
prohibiting the defendant from possessing or using a computer
with access to any online service without prior approval of
the probation officer finding that the restriction was
reasonably related to the offense of shipping child
pornography across state lines. �U.S. vs. Rearden (9th Cir.
2003) 349 F.3rd 608.]
However, the California Court of Appeals rejected an Internet
ban on a paroled child molester because the restriction was
not so narrowly tailored as to avoid suppression of protected
speech.
The Court held, "Here, BPT �Board of Prison Terms, now Board of
Parole Hearings] was legitimately concerned that a released
child molester's unfettered access to a computer might result
in criminal conduct. In contrast to cases such as Crandon,
Paul and Rearden, the broad prohibition on use of the computer
and Internet bore no relation to Stevens's conviction for
child molestation and imposed a greater restriction of his
rights than was reasonably necessary to accomplish the state's
legitimate goal.
"BPT, concerned about Stevens's illegitimate use of the
Internet, sought to prevent his having any access to
cyberspace. One can understand the dilemma BPT faced.
�C]yberspace defies boundaries; it offers unlimited access.
'�T]he openness of this architecture means this: That there
is no "natural" or simple or "automatic" way to keep people
out because there are no natural or real borders that close
off access to those who should not have access.' �internal
citation omitted.]
"But BPT's task was less daunting than it appeared to be. A
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focused restriction could be enforced by unannounced
inspections of material stored on Stevens's hard drive or his
removable disks �internal citation omitted]. BPT might also
have explored the implementation of monitoring software which
automatically generates an e-mail to the parole officer should
the parolee engage in an illegal use of his computer. �See,
e.g., McKay, Guardrails on the Information Superhighway:
Supervising Computer Use of the Adjudicated Sex Offender
(2003) 106 W.Va. L. Rev. 203, 242.] Finally, BPT can verify
Stevens's Internet usage with a sting
operation-surreptitiously inviting him to respond to
government-placed Internet ads for pornography �internal
citation omitted].
"BPT cannot, of course, monitor every aspect of Stevens's
behavior. Other than a prohibition on his use of a computer
to access pornographic sites, BPT would most likely be unable
to monitor Stevens's use of someone else's computer. But like
any other parolee, Stevens's unauthorized use of any computer
would be at his own peril.
"As observed by Sir William S. Gilbert, 'a felon's capacity for
innocent enjoyment is just as great as any honest man's.'
(Gilbert & Sullivan, Pirates of Penzance (1880) act II.)
Rehabilitation of a felon entails integration into society
where he or she can be self-supporting. In appropriate cases,
access to the Internet assists parolees to become law-abiding
citizens." �In re Stevens (2004) 119 Cal.App.4th 1228, 1239.]
6)Dissemination of Information to Third Parties : This bill
requires that lists of sex offender e-mail addresses may be
provided to third parties upon their request, creating 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 e-mail addresses as part of their
annual registration. DOJ is then responsible for
disseminating that information to any third party that
requests the information. This bill does not include e-mail
addresses on the public Web site; DOJ is required 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
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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 corporations qualified to decide what
is covered by the statute and what is not.
Furthermore, Penal Code Section 290.46(l)(2) prohibits using
publicly available sex offender registration information from
being used to discriminate against sex offenders in following
cases: health insurance, general insurance, loans, credit,
employment, education, scholarships or fellowships, housing or
accommodations and benefits, privileges, or services provided
by any business establishment. �Penal Code Section
290.46(l)(2)(A) to (H).] Although this bill does not include
e-mail addresses or Internet identifiers on the "Megan's Law"
database, this bill does specify that DOJ is authorized to
disseminate this information to third parties. It is possible
the courts will interpret that as public disclosure of
information. If an offender is precluded from a
business-related Web site because he or she is a registered
sex offender, he or she may bring a claim for discrimination.
7)Private Companies Currently Able to Screen for Sex Offenders :
Private companies, including social networking websites,
currently have the ability to screen for registered sex
offenders if they wish. The Federal Sex Offender Registry
allows for an individual or company to search by name for
presence on a sex offender registry of 50 states, U.S.
Territories, the District of Columbia, and participating
tribes. (Available at
.) If third parties
such as social networking websites want to exclude individuals
who are registered sex offenders, they can simply search by
name and exclude as they wish. Match.com has recently
announced they will do exactly that in response to a lawsuit
filed by a Match.com user arising out of an incident where she
was sexually assaulted by someone she met through the dating
Web site. �"Woman sues Match.com after alleged sexual assault
by man she met online" (April 15, 2011).
;
"Match.com to screen dating site for sex offenders" (April 19,
2011). .)
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8)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
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.
9)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).] This bill expands the
current registration requirement to include all e-mail
addresses or Internet identifiers.
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If an offender gets a new e-mail address or changes an existing
e-mail address, he or she is required to notify the
appropriate local law enforcement agency within 24 hours.
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 e-mail address. This also includes any change
to a business-related e-mail 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 e-mail address or gets a new e-mail address. If
the person fails to continually provide this information, he
or she is guilty of a crime and, in some cases, may be
punished with imprisonment in the state prison. As explained
below, placing an increasing number of penalties on persons
required to register may put the entire registration scheme in
constitutional jeopardy.
10)Constitutionality of Sex Offender Registration : Both the
California and the United States Supreme Court have ruled
that, generally, sex offender registration laws do not run
afoul of constitutional prohibitions against ex post facto,
double jeopardy and cruel and unusual punishment. �In re Leon
Casey Alva (2004) 33 Cal. 4th 254; Smith vs. Doe (2003) 538
U.S. 84.] In making such a finding, both courts applied the
Mendoza-Martinez test which outlines several guiding factors
in determining whether a law is punitive. The factors include
whether the "regulatory scheme" has been regarded in history
and tradition as punitive, imposes an affirmative disability
or restraint, promotes the traditional aims of punishment, has
a rational connection to a non-punitive purpose, or is
excessive with respect to its purpose. The state may not make
publicity and stigma an integral part of the objective of such
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
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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 Third
Circuit:
"An erroneous underestimation of an individual's dangerousness
will not necessarily result in harm to protected groups . . .
. On the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm to
the offender: his conviction becomes public, he is officially
recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." �E.B. vs. Verniero (1997) 119 F.3rd 1077;
Garfinkle, COMMENT: Coming of Age in America: The
Misapplication of Sex-Offender Registration and Community -
Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163,
202.]
The California Court of Appeals for the 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
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regard to that purpose. It would oust a person never
convicted of any offense against a child from his family home
near a school or park, forcing him to leave his family or
consigning the family to perpetually threatened transience.
Relocation would be limited to the few outskirts of town
lacking a school or park. Yet the residency restriction would
allow a convicted child molester to stroll past the school,
eat ice cream in the park, and live next door to small
children-as long as he retreats at night to housing far from a
school or park. Building exclusion zones around all schools
and parks for all registered sex offenders is excessively
punitive.
"The severe punitive effect of Jessica's Law's residency
requirement clearly outweighs the proclaimed lack of
regulatory, non-punitive intent. �See Smith, supra, 538 U.S.
at p. 92 ('clearest proof' of punitive effect outweighs lack
of punitive intent).] We are not the first jurists to
recognize the overwhelming punitive effect of a residency
restriction. �See State v. Pollard, supra, 886 N.E.2d at p.
74 (residency restriction is punitive); Mikaloff, supra, 2007
WL 2572268 at pp. 9-10 (same); Leroy, supra, 828 N.E.2d at p.
793 (dis. opn. of Kuehn, J.) (same); Miller, supra, 405 F.3d
at p. 726 (conc. & dis. opn. of Melloy, J.) (same).]
"Because the residency restriction is punitive, its imposition
by the court increases the penalty for a nonsexual offense
beyond the prescribed statutory maximum based upon the jury
verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus,
the facts required to impose the residency restriction must be
found beyond a reasonable doubt by a jury." (Ibid.) �People
vs. Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by
the California Supreme Court].
The lower court did not directly rule on the constitutionality
of Jessica's Law or sex offender registration and the
California Supreme Court 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
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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.
11)Law Enforcement Resources : Assume that a sex offender
registrant changes e-mail addresses frequently, or uses a
number of different e-mail addresses, each for a different
purpose. All of the e-mail addresses, and all of the changes,
are required to be reported to the registering law enforcement
agency, which is then required to transmit this information to
DOJ. In a state such as California (which has the largest
number of registered sex offenders in the country), the work
involved in merely processing this information would be
considerable.
Do municipalities with large numbers of registered sex offenders
have the personnel and capacity to obtain, process, and
transmit all of this data? Because of life-time registration,
some registrant's may have been crime-free for many years;
moreover, their initial crime requiring registration may have
been nothing related to child sexual abuse. Is receipt and
processing of all of this information regarding computer
identifications a wise use of limited resources? Does this
bill require 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.
12)Exposure of Registrants to New Felony Convictions with
Potential Three Strikes Implications : Failure to comply with
all of the requirements of registration is a felony if the
underlying crime requiring registration was a felony, or if
the registrant has a previous conviction of failure to
register, the subsequent failure to register is also a felony
regardless of whether the crime giving rise to the duty to
register was or was not a felony. �Penal Code Section
290.018(a) and (b.)] Under this bill, failure to provide law
enforcement with changes to accounts on internet service
providers or internet identifiers, constitutes a failure to
register and may expose the registrant to a felony conviction.
Depending on the prior convictions of the individual, he or
she may be subject to penalty enhancements under the Three
Strikes law.
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Under "Three Strikes," any felony conviction, not just a serious
or violent felony conviction, following a violent or serious
prior results in a sentence of twice the normal length. With
any two violent or serious felony priors, a new conviction for
any felony - including writing bad checks, petty theft with a
prior, etc. - results in a life sentence. Thus, the Three
Strikes Law makes no distinction in severity between different
felonies. This explains why creating a new felony involves
very weighty and severe consequences. Where a Three Strikes
defendant is convicted of two counts of theft not committed on
one occasion or arising from the same facts, he or she must
receive two consecutive terms of 25-years-to-life. For many
defendants, such a sentence means that they will never be
released from prison.
Although it may be argued that a defendant may always file a
motion to dismiss a strike under People vs. Superior Court
(Romero) (1996) 13 Cal.4th 497, filing such a motion hardly
means that a defendant will be successful especially when the
Legislature sees fit to create a new felony. Simply passing
the responsibility to the courts is irresponsible. People vs.
Romero is rooted in Penal Code Section 1385, which allows a
judge to "strike a strike, in the interest of justice",
meaning dismiss one of the prior strikes for purposes of
sentencing under the Three-Strikes Law. Courts will look at a
number of factors to decide if dismissal for purposes of
sentencing is appropriate, including if the defendant has
lived a crime-free or relatively crime-free life between the
second and third offense. �People vs. Carmony (2004) 33
Cal.4th 367.] Living a crime-free life usually includes not
committing any misdemeanors. A defendant who has a record of
misdemeanors between strikes will likely be unsuccessful. A
denial of an invitation to dismiss under Penal Code Section
1385 is reviewed by appellate courts pursuant to an abuse of
discretion standard, which is extremely difficult to show.
�People vs. Superior Court (Alvarez) (1997) 14 Cal.4th 9680.]
Therefore, it should provide little comfort to the Legislature
that a defendant may make this very often, unsuccessful motion
to avoid being sentenced to 25-years-to-life on a non-violent
third strike.
13)Concerns for Prison Overcrowding : The California Policy
Research Center (CPRC) issued a report on the status of
California's prisons. The report stated, "California has the
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largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." �Petersilia, Understanding California
Corrections, CPRC (May 2006).] California's prison population
will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
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communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
�Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. �Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] Although this order is
stayed pending appeal to the United States Supreme Court,
careful consideration must be given to any proposal that
exacerbates prison overcrowding.
14)Argument in Support : According to the Riverside Sheriffs'
Association , "California is forward thinking and a leader when
it involves children's safety, and should welcome E-STOP,
which was first proposed by Chris Kelly in 2006 when he was
Chief Privacy Officer for Facebook. E-STOP now works both
with Facebook and MySpace. This step will allow more
effective policing and even removal of sex offenders from
online sites where minors congregate. Since California's
known sex offenders must register their current addresses and
additional information, they can also be required to reveal
email addresses, online identifiers, and names for their
service providers with the California Department of Justice.
This information will be made available to social networking
sites."
15)Arguments in Opposition :
a) According to the California Public Defenders
Association , "By increasing the kind of information that
must be provided, and the requirements of processing any
change in that additional information within 24 hours, this
legislation would drastically increase the administrative
burden of law enforcement agencies and the DOJ. California
has over 90,000 registrants, who presently are required to
register a plethora of information at a minimum of one
every year, and each time there is any change in that
information.
"Empirical evidence does not support stranger perpetrator,
much less, stranger internet perpetrator as a typical risk.
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According to the U.S. Department of Justice, 86% of all
sexual assault cases reported to law enforcement were
committed by someone known to the victim- a family member
or acquaintance (Bureau of Justice Statistics, 2000).
"The U.S. Department of Justice reports that 93% of victims
under the age of 17, and 73% of victims age 18 or older,
were assaulted by someone they knew. Where the victim was
a child, 34% of offenders were family and 59% were
acquaintances (Bureau of Justice Statistics, 2000).
"And perhaps even more on point, 'The vast majority of sex
crimes are committed by someone who is not on the Sex
Offender Registry. During 2005-2006, approximately 94% of
the persons arrested for sexual offenses in New York State
had no prior sex convictions. As a result, these people
would not have been on the Sex Offender Registry (New York
Sex Offender Management Grant, 2007).
b) According to the American Civil Liberties Union , "This
legislation also raises significant free speech concerns by
placing significant burdens on the use of the internet for
legitimate and lawful purposes. Permitting private
Internet entities access to law enforcement data bases will
act to prohibit otherwise lawful communication between and
among adults. Additionally, public policy considerations
also argue against this legislation. Keeping offenders
connected to their communities. Families, and friends are a
critical factor in preventing recidivism. Reducing
opportunities for offenders to use the internet- a primary
tool of learning and communication in the twenty-first
century removes offenders from social groups and supportive
relationships, which are important in minimizing
recidivism."
16)Related Legislation :
a) AB 543 (Torres) makes it a misdemeanor, punishable by up
to six months in the county jail and/or a fine of not more
than $1,000, for any person who is granted probation or
placed on parole for the conviction of a crime that
requires him or her to register as a sex offender to use
any Internet social networking Web site, as defined, during
that period of probation or parole if the victim of the
offense was under 18 years of age at the time of the
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offense and the Internet was used in the commission of the
crime. AB 543 is pending hearing by the Committee on
Appropriations.
b) AB 653 (Galgiani) requires a person required to register
as a sex offender report his or her Internet accounts and
Internet identifiers, defined to include e-mail addresses
and designations used for the purposes of chatting, instant
messaging, social networking, or other similar Internet
communication, to local law enforcement. AB 653 is pending
hearing by this Committee.
c) AB 757 (Blumenfield) authorizes any law enforcement
agency to re-include a registered sex offender granted an
exclusion from DOJ's website where the agency believes that
public safety may be compromised by the continued exclusion
from DOJ's Web site. Upon receiving notice from a law
enforcement agency requesting re-inclusion, the DOJ shall
notify the offender and thereafter make information about
the offender available to the public on the website within
30 days. AB 757 is pending hearing by this Committee.
d) AB 1022 (Fletcher) authorizes local enforcement to
provide information available on the DOJ's Internet Web
site of sex offenders, as specified, upon request, by
e-mail or other electronic notification. AB 1022 is
pending hearing by the Committee on Appropriations.
17)Prior Legislation :
a) AB 179 (Portantino), of the 2009-10 Legislative Session,
would have mandated a person required to register as a sex
offender, or a person who is released as a sexually violent
predator, as specified, to report all e-mail addresses and
IM identities at the time of registration. AB 179 was
considerably narrowed to address costs and was ultimately
gutted and amended into a bill related to corporate
taxation laws.
b) AB 1850 (Galgiani), of the 2009-10 Legislative Session,
provided that any person sentenced to probation or released
on parole for an offense that requires him or she to
register as a sex offender, as specified, from using the
Internet under certain circumstances. AB 1850 is
substantially similar to this bill and was held on the
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Assembly Appropriations Committee's Suspense File.
c) AB 2208 (Torres), of the 2009-10 Legislative Session,
provided that, commencing January 1, 2011, in any case in
which a defendant is granted probation or parole for an
offense that requires him or her to register as a sex
offender, as specified, and either the victim of the
offense was under 18 years of age at the time of the
offense, or the Internet was used in the commission of the
crime, the defendant shall be prohibited from accessing an
Internet social networking Web site during the period of
time he or she is on probation or parole. AB 2208 was held
on the Assembly Appropriations Committee's Suspense file.
d) SB 1204 (Runner), of the 2009-10 Legislative Session,
requires every registered sex offender to inform the law
enforcement agency with which he or she last registered of
all of his or her online addresses, e-mail addresses, and
IM user names by December 31, 2011 and thereafter at the
time of original registration and within 30 days of
establishing a new online account. This information, may,
upon request, be shared with the DOJ or other law
enforcement agencies. SB 1204 was held on the Assembly
Appropriations Committee's Suspense File.
e) 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 Committee
and ultimately gutted and amended in the Senate into a bill
related to health care.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
Child Abuse Prevention Center
Crime Victims United
Facebook
Peace Officers Research Association of California
Riverside Sheriffs' Association
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Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744