BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
5
7
SB 57 (Runner)
As Amended April 12, 2011
Hearing date: May 3, 2011
Penal Code
JM:mc
SEX OFFENDER REGISTRATION:
INCLUSION OF INFORMATION ABOUT SOCIAL NETWORKING SITES
HISTORY
Source: Author
Prior Legislation: SB 1204 (Runner) - 2010, held in Assembly
Appropriations
Support: San Bernardino County Sheriff; California State
Sheriffs' Association
Opposition:Legal Services for Prisoners with Children;
California Public Defenders Association; American Civil
Liberties Union
KEY ISSUES
SHOULD REGISTERED SEX OFFENDERS BE REQUIRED TO PROVIDE CERTAIN
INFORMATION AS PART OF REGISTRATION FOR ALL OF THE REGISTRANT'S
ACCOUNTS ON SOCIAL NETWORKING WEBSITES, AS SPECIFIED?
(More)
SB 57 (Runner)
PageB
SHOULD SEX OFFENDER REGISTRANTS BE REQUIRED TO INFORM THE
REGISTERING AGENCY OF ANY CHANGES IN SOCIAL NETWORKING
INFORMATION WITHIN 30 DAYS?
(CONTINUED)
SHOULD THE REGISTERING LAW ENFORCEMENT AGENCY BE AUTHORIZED TO SHARE
THE REGISTRANT'S SOCIAL NETWORKING INFORMATION WITH OTHER LAW
ENFORCEMENT ENTITIES?
SHOULD A VIOLATION OF THE PROHIBITIONS OR REQUIREMENTS OF THIS BILL
BE A MISDEMEANOR?
PURPOSE
The purposes of this bill are to 1) require persons required to
register as sex offenders to provide the registering law
enforcement agency with the person's online names and addresses,
e-mail addresses and instant messaging user names for all his or
her social networking Internet Website accounts; 2) require that
changes in this information be updated within 30 days; 3)
authorize the law enforcement agency to share this information
with other law enforcement entities; and 4) define a social
networking Website as one that allows persons, including
juveniles, to communicate with acquaintances and strangers,
construct a public or semi-public profile, set a list of users
or members with whom they share a connection, and view and
traverse their list of connections with others within the
system.
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
(More)
SB 57 (Runner)
PageC
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;
--------------------------
<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."
(More)
SB 57 (Runner)
PageD
and
Copies of adequate proof of residence, as specified.
(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 �
--------------------------
<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]).
(More)
SB 57 (Runner)
PageE
290.018, subd. (b).)
Transient registrants : Transient registrants who
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 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 January 1, 2013, 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 requires registrants to inform the registering agency
of any changes to social networking sites used by the
registrants and any changes in user names and addresses.
This bill defines a social networking Internet Web site as one
that permits members, including juveniles, to communicate with
acquaintances and strangers, and allows individuals to:
construct a public or semi-public profile within a
bounded system;
set a list of other users with whom they share a
connection; and
---------------------------
<3> Registrants who are sexually violent predators are
expressly excepted from this provision.
(More)
SB 57 (Runner)
PageF
view and traverse (cross or connect) their list of
connections and the lists of others within the system.
This bill authorizes the registering agency to, upon request,
share the information with other law enforcement entities.
This bill provides that a violation of the requirements in the
bill is a misdemeanor.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
(More)
SB 57 (Runner)
PageG
overcrowding through new or expanded felony prosecutions.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Need for This Bill
According to the author:
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 57
will require sex offenders like John Gardner to
register all their online addresses with law
enforcement.
Online address registration will create a tool which
can be employed to provide information to social
networking sites which may choose to purge potential
predators.
2. Existing Laws on Contacting Minors with Intent to Engage in
Sexual Conduct
Existing law includes two statutes that concern contacting
minors for the purpose of engaging in sexual conduct. Each
statute can be violated through use of the Internet, including
social networking Websites.
Penal Code Section 288.3 provides that any person who contacts a
minor with the intent to commit lewd conduct, a defined sex
crime or child pornography crimes is guilty of a crime. The
penalty is the same as that provided for the underlying offense.
Penal Code Section 288.5 provides that any person who, motivated
by an unnatural sexual interest in children, arranges a meeting
with a minor for the purpose of engaging in sexual activity or
(More)
SB 57 (Runner)
PageH
exhibitionism is guilty of a misdemeanor. The crime is a felony
upon a repeated conviction. The crime is also a felony if the
defendant actually went to the arranged meeting place.
3. Use of Information About a Sex Offender's Access to the
Internet by Law Enforcement
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 author's statement notes that social networking Websites
could choose to purge registered sex offenders from their sites.
The bill does not make clear how social networking sites would
know which members are registered sex offenders. The bill
specifically provides that the registering law enforcement
agency can provide the registrant's social networking
information to other law enforcement agencies. The bill does
not state that law enforcement can provide the information to
social networking Websites. However, another provision in the
registration statutes (Pen. Code � 290.45) provides that law
enforcement may release sex offender registration information
where necessary to preserve public safety.
A maxim of statutory construction holds that where a statute
authorizes a specific action, other actions are likely excluded.
(People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523.)
Thus, the specific authority for the registering agency to
provide social networking information about a registrant to
other law enforcement entities could be interpreted as barring
the sharing of the information with non-law enforcement
agencies. Another maxim provides that where a general statute
and a specific statute cover the same subject, the more specific
statute controls. (People v. Hernandez (1993) 18 Cal.App.4th
1840.) However, the most important goal of statutory
interpretation is to determine legislative intent. (People v.
(More)
SB 57 (Runner)
PageI
Collins (1975) 44 Cal.App.3d 617.) It could be argued that
public safety is the overriding purpose of the registration
statutes and that law enforcement has very broad discretion to
release information to protect the public. It is thus unclear
how courts would apply this bill in cases involving purging of
sex offenders from social networking sites through the use of
information required by this bill and provided to a Website by
law enforcement.
SHOULD THE REQUIRED INFORMATION PROVIDED BY A SEX OFFENDER
REGISTRANT INCLUDE THE FOLLOWING WITH REGARD TO HIS OR HER
SOCIAL NETWORKING INTERNET WEBSITE ACCOUNTS: ONLINE NAMES AND
ADDRESSES, E-MAIL ADDRESSES AND INSTANT MESSAGING USER NAMES?
UNDER THIS BILL, COULD LAW ENFORCEMENT PROVIDE A SEX OFFENDER'S
SOCIAL NETWORKING INFORMATION TO WEBSITES SO AS TO ALLOW
WEBSITES TO PURGE SEX OFFENDERS FROM THE SITES?
4. Possible Response to This Bill by Sex Offender Registrants
By conveying to registered sex offenders that law enforcement
agencies intend to monitor the social networking activities of
registrants, this bill arguably could dissuade some offenders
from engaging in inappropriate or risky behavior, reducing the
chance of re-offense. However, a registrant could likely
participate in social networking without providing this
information to law enforcement, and not be discovered. Sex
offenders who are on parole would be subject to searches of
computer equipment through which undisclosed social networking
could be discovered. Nevertheless, some proportion of
registered sex offenders conceivably could use the user names
and other information revealed to law enforcement in social
networking. Law enforcement could then much more easily
investigate and prosecute crimes in which the offender's social
networking played a part.
5. 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
(More)
SB 57 (Runner)
PageJ
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 a 2000 study.
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.
Numerous recent studies have confirmed that fears about the use
of the Internet by pedophiles and persons targeting minors for
sexual crimes have been exaggerated. The producers of a PBS
Frontline documentary, "Growing Up Online" observed:
(More)
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.
6. Recommendations of the Sex Offender Management Board
AB 1015 (Chu), Chapter 338, Statutes of 2005, created the Sex
Offender Management Board (SOMB). The SOMB released the
following recommendations in January 2010:
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
resources is symptomatic of an approach that
fundamentally misunderstands the extent and nature
(More)
SB 57 (Runner)
PageL
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.)
DOES THIS BILL HELP REDUCE THE RISK PRESENTED BY SEX
OFFENDERS IN THE COMMUNITY?
***************