September 12, 2013
How a Law Aimed at Sex Offenders Could Feed into the Growing Surveillance State
"A new precedent for chilling 1st Amendment rights.
Last November, California voters overwhelmingly approved Proposition 35, the Californians Against Sexual Exploitation (CASE) Act. Like “tough on crime” anti-trafficking legislation around the country, Proposition 35 was presented as bolstering law enforcement's ability to fight human trafficking by introducing a bundle of new laws that, most prominently, increased penalties for those convicted of trafficking human labor, made prostitution a sex crime, and with less public attention, created a new requirement for registered sex offenders.
Under this last provision, all 73,000 registered sex offenders are required to submit their Internet service providers and "Internet identifiers” to their local police department within 24 hours of creating each new one, or face up to three years in jail. “Identifiers” include every name or username a registrant uses for any online activities he engages in, from posting a comment in a news outlet to shopping.
The day after Prop 35 was voted into law, the Electronic Frontier Foundation and the ACLU of Northern California filed a class action complaint on behalf of two anonymous registrants and the advocacy group, California Reform Sex Offender Laws, against the provision under question, claiming that it was unconstitutionally broad and would create a chilling effect on registrants’ free speech and associative rights. In response, the District Court immediately issued a temporary restraining order on Nov. 8, 2012, and eventually, a preliminary injunction on Jan. 11, 2013.
In his ruling, presiding judge Thelton E. Henderson agreed that the provision would chill the right of registrants to speak anonymously and stated that the “Court cannot simply presume the [government] will act in good faith and adhere to standards absent from the [statute's] face.”"
"Contrary to what the state suggests, there is little evidence that the Internet is used to facilitate sex crime or exploitation. According to a declaration submitted by David Finkelhor, the director of the Crimes against Children Research Center and professor of sociology at the University of New Hampshire, sex crimes against children facilitated by technology constitute only one percent of all sex crimes committed against children; and of those arrested for technology-facilitated crimes against youth, only four percent are registered sex offenders. Between 2000 and 2010, there was a 50 percent decline in all unwanted sexual solicitations on the Internet. These statistics were published by two studies, the Youth Internet Safety Survey and the National Juvenile Online Victimization, sponsored by the US Department of Justice Office of Juvenile Justice and Delinquent Prevention."