State won’t appeal ruling on sex offender tracking

See Also: State Attorney General Won't Fight Court's Block Of Law Curtailing Sex Offenders' First Amendment Rights

2-11-2015 California:

Attorney General Kamala Harris says she will not ask the Supreme Court to let California enforce a voter-approved law that would require more than 70,000 sex offenders to disclose their Internet identities to police — a decision that apparently means the law will not take effect.

The law was part of Proposition 35, a ballot measure passed by an 81 percent voting majority in November 2012. The challenged provision would require registered sex offenders, who already must disclose their address to police, to also reveal their e-mail addresses, user names and Internet providers.

The case does not affect most sections of the proposition, which increased prison sentences for sex-trafficking crimes, such as coercing someone into prostitution.

U.S. District Judge Thelton Henderson blocked enforcement of the Internet disclosure provision before it could take effect, and the Ninth U.S. Circuit Court of Appeals upheld his ruling in November, saying the law was likely to violate the free-speech rights of ex-convicts who were no longer on probation or parole.

Although the disclosure requirement was part of a “legitimate” attempt to combat sexual exploitation and human trafficking, it would discourage registered sex offenders from taking part in online forums about social issues, hamper their constitutional right to speak anonymously and enable police to make their identifying information public, the court said.

The requirement “significantly burdens those individuals’ ability and willingness to speak on the Internet,” Judge Jay Bybee, one of the court’s most conservative members, said in the 3-0 ruling.

He also said Prop. 35 failed to spell out which Internet accounts sex offenders must disclose — new or previously existing accounts; their own; or those used by friends, relatives or the local library.

Harris’ office defended the law in court, but said Tuesday that it would not appeal to the Supreme Court.

Instead, a top aide said, the attorney general will ask the Legislature to rewrite the disclosure requirement to meet the court’s objections.

Those changes could include specifying the accounts to be disclosed to police and barring officers from making the information public.

“The court of appeals has laid out a road map for the Legislature to fix this requirement and we look forward to working with interested parties to fulfill the purposes of the initiative in a manner consistent with the United States Constitution,” Ed DuMont, the solicitor general in Harris’ office, said in a statement.

Sponsors of Prop. 35 were allowed to join in the state’s defense of the disclosure requirements in the lower federal courts, but — based on the Supreme Court’s 2013 ruling on Prop. 8, the now-repealed ban on same-sex marriage — cannot appeal to the nation’s high court on their own.

The measure’s chief sponsor, Chris Kelly, a former chief privacy officer for Facebook, criticized Harris’ decision.

“You cannot promote Internet safety by protecting the anonymity of sex offenders,” Kelly said in a statement. “This is clearly a case of misplaced priorities and indicates a blatant disrespect for California voters.” ..Source.. by Bob Egelko

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How a Law Aimed at Sex Offenders Could Feed into the Growing Surveillance State

9-16-2013 California, National:

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.”

Nearly a year later and that key, if less trumpeted, provision of the voter-initiated measure is still being battled in court. Meanwhile, since the complaint was first lodged, US citizens' cognizance of the ease with which the government abuses its access to their online activity has grown at a rapid rate — as has its disapproval.

A recent poll conducted by the Associated Press-NORC Center for Public Affairs Research shows that the percentage of Americans who think the government does a good job at ensuring freedoms dropped from 60 percent in 2011 to 53 percent this year. Similarly, in 2011 40 percent thought the government did a good job protecting their privacy, but today that number is down to 34 percent. It would appear that Americans are increasingly less likely to “presume the government will act in good faith.”

This shifting context may have impact on the outcome of the provision of Proposition 35 that has yet to be implemented.

Judge Jay Bybee, the former Bush administration attorney who co-authored the Office of Legal Counsel's “torture memos,” sat on the three-judge panel in the Court of Appeals in San Francisco on Tuesday, Sept. 10 to hear arguments in the case. As state's attorney Robert Wilson struggled to articulate his argument that the provision would not have a chilling effect on registrants' speech, Bybee interrupted him to comment: “We're dealing in a post-Snowden era, where we're wondering whether all our online communications are being monitored by the NSA.”

Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, warned against reading too much into Bybee's comment, but nonetheless thought it telling. “It reflects an interesting dynamic: that even in a case that has nothing to do with NSA surveillance, when it comes to government interference or government collection of Internet data about particular data there are now going to be some questions that are asked.”

Fakhoury continued, “When the government is watching what you're doing, it chills speech. This is true in the NSA context and in this context.” The state resolutely denied that the provision would chill speech and urged the judges to allow the provision to go forward, insisting that it was necessary for public safety.

ACLU attorney Michael Risher opened his argument on Tuesday by evoking the compelling image of a registrant who wishes to make an anonymous critical comment about his local police department on the online comment section of his local newspaper, “His speech will be chilled knowing that the police has his online identities down at the station.”

The state emphasized that registering the online identities of registrants is a necessary step to modernize registries currently maintained by local police departments. Drawing parallels between the virtual and physical worlds, attorneys explained that maintaining a database of the Internet identities of registrants would allow police to respond more efficiently in the case of a child abduction and ensured the court that the Internet information would remain confidential. Attorney Robert Wilson dismissed the claim that police could monitor Internet activity of registrants, explaining that police departments' resources are already spread too thin.

However, whether in protecting the public’s safety the law is justified in targeting “sex offenders”— a broad category that can include teens engaged in consensual sex, those convicted of public urination, and numerous others as stated in the plaintiffs' original complaint— has yet to be established.

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.

According to Hanni Fakhoury, nothing in the law limits police from only using the information they collect exclusively for responses to emergencies. “The law's stated intention is to prevent crime — so the only way to employ this information to that end is to conduct aggressive and proactive surveillance,” he told AlterNet.

Speaking to AlterNet, Daphne Phung, the executive director of Californians Against Slavery and the lead advocate for Proposition 35, defended the law as a negligible and fair burden on registrants, “You might think this is too broad, but convicted sex offenders have forfeited certain privileges in society, and this is one of these privileges. Just like when there are physical registration requirements and a sex offender knows that he or she is being monitored or there is capability of being monitored, it gives them that realization that they have to be more cautious.”

Sex offenders have been required to register with the police since 1947 in California. In 1997, California passed its version of Megan's Law, making registries public. Public registries are justified as providing people with the ability to protect themselves from convicted sex offenders. As such, registries are not considered punishment and have withstood ex post facto challenges. In 2003, the public registry sustained a constitutional challenge in the Supreme Court, which ruled that registries were not punitive measures, crucially allowing for seemingly endless new laws and restrictions to be introduced and retroactively apply to the entirety of the registry.

Phung's brief supporting the new registration requirements stated: “Plaintiffs do not have an unconditional right to remain anonymous. Indeed, the plaintiffs have already lost a significant degree of anonymity as a result of their status as convicted sex offenders.”

There are signs that restricting registrants' access to the Internet, in particular social media, is a growing trend. North Carolina has banned registrants from social networks like Facebook and other chat rooms, and Pennsylvania is considering similar legislation. Earlier this year, a similar ban in Indiana was struck down by a court of appeals.

Fakhoury told AlterNet that EFF is keeping an eye on the various laws restricting registrants' access to the Internet that are cropping up around the country, but the case against the provision in Proposition 35 is the first of its ilk for EFF. “We don't like it when anyone online is required to register their online information—no matter who, whether it's registrants or children.”

In his order granting the preliminary injunction against the provision in January, Judge Henderson wrote, “Just as the Court is mindful ... that the government has a legitimate interest in protecting individuals from online sex offenses and human trafficking, it is equally mindful that 'anonymity is a shield from the tyranny of majority,' and that Plaintiffs enjoy no lesser right to anonymous speech simply because they are 'unpopular.’”

In its decision to uphold or overturn Henderson's preliminary injunction, the court of appeals will redraw the boundaries of registrants’ virtual freedoms, much as the borders to their geographic freedom have already been redrawn numerous times. But in a post-Snowden world, a decision that upholds the right to anonymity—no matter whose—would be a precious one, and it would be difficult to overstate its significance. ..Source.. by Charlotte Silver is an independent journalist currently based in San Francisco. She writes for Al Jazeera English, Inter Press Service, Truthout, The Electronic Intifada and other publications.

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Release Net identities of sex offenders, state urges

9-13-2013 California:

The state asked a federal appeals court Tuesday to allow enforcement of a voter-approved law requiring 73,000 registered sex offenders in California to disclose their Internet identities to police.

The law was part of Proposition 35, approved by an 81 percent majority in November. U.S. District Judge Thelton Henderson of San Francisco blocked the Internet disclosure requirement from taking effect, saying it was not narrowly targeted at preventing sex crimes and would discourage offenders from exercising their free speech right to post anonymous comments online.

At Tuesday's appeals court hearing, a state lawyer said the law would help police solve sex crimes with an Internet component - like recruiting or harassing victims online. It would not intrude on privacy or free speech, he argued.

"It just gives law enforcement a directory, if they need to (locate) someone in a hurry," Deputy Attorney General Robert Wilson told the Ninth U.S. Circuit Court of Appeals in San Francisco. "Private communications are still off limits to law enforcement."

But attorney Michael Risher of the American Civil Liberties Union said Prop. 35 would allow police to release any information they considered necessary to protect the public, including a sex offender's Internet identity. He also said the measure applies to all websites and to offenders whom authorities do not classify as dangerous.

"This is a law that directly targets speech," Risher told the three-judge panel. He said it would deter online criticism of police and government agencies, and also said Henderson had found that many of the online sites covered by Prop. 35 posed no risk of sex trafficking.

The ballot measure required all Californians who must register as sex offenders, for crimes ranging from rape to indecent exposure, to provide police with their e-mail addresses, Internet user names and the names of their Internet service providers.

When Wilson assured the court that police would keep the information to themselves and would not monitor private e-mails, Judge Jay Bybee suggested the public might be skeptical in this "era where we're wondering whether all our information is monitored by the NSA (National Security Agency)."

But Bybee also noted that another federal appeals court had upheld a similar Utah law in 2010. Risher replied that the Utah law placed more restrictions on release of private information, and also argued that the court in that case had been too deferential to the government. ..Source.. by Bob Egelko

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'Post-Snowden Era' Audit of CA Sex-Offender Monitoring

9-13-2013 California:

9th Circuit Oral Argument: John Doe, et al v. Kamala Harris

The NSA's controversial domestic surveillance program factored into a 9th Circuit hearing Wednesday on California's monitoring of sex offenders.

Proposition 35, passed by voters last year, mostly aims to punish human traffickers, but also mandates that sex offenders give police a complete list of their usernames, screen names, email addresses and Internet service providers within 24 hours of setting up a new account or screen name. Failure to do so carries up to three years in prison.

Two anonymous sex offenders who were convicted in 1986 and 1992 quickly filed suit , challenging the provision as overly broad and a burden on their right to anonymous online free speech, such as posting on Internet forums.

U.S. District Judge Thelton Henderson gave the class an injunction earlier this year.

At an appellate hearing Wednesday, Deputy Attorney General Robert Wilson noted that California has been collecting information on sex offenders since November 2012, with no incidents of retaliation by police or suppression of free speech.

"There's no getting around the fact that California has been collecting this information form tens of thousands of registrants for a year and a half, with none of the problems that plaintiffs complained about," Wilson said.

Judge Jay Bybee interjected: "It's very difficult to quantify chilling, isn't it?"

"We're dealing in the post-Snowden era where we're wondering if all of our Internet communications are being monitored by the NSA," he added. "And we've got a little different situation here, but these are folks that are going to have to report all of their monikers that are used on the Internet and have no idea whether the police are regularly trolling to monitor everything that they say on the Internet."

Wilson replied: "It's just as improper for law enforcement as anyone else to be monitoring this noncriminal communications. There has to be a nexus between criminal activity and looking at this information."

He added, "There is no possible way of writing a statute any narrowly than we have now."

The American Civil Liberties Union, which represents the plaintiff sex offenders, worries that a police record of usernames and screen names will stop registrants from posting freely on the Internet without the fear of retaliation.

"This is a law that directly targets speech," ACLU attorney Michael Risher said. "What registrant is going to want to make a comment on his local newspaper's website about the police department, a nasty comment, knowing they have his identifier on file? It's very easy for the police to make a registrant's life difficult."

The attorney for Prop. 35's backers said the law mandates a simple registration requirement that does not disclose the registrant's identity.

"Proposition 35 imposes a registration requirement, it doesn't regulate speech," attorney James Harrison said. "It doesn't prevent sex offenders from speaking online, even anonymously.

It doesn't require registration as a condition of speaking; it doesn't require sex offenders to disclose their identity when they speak; it doesn't suppress a type of viewpoint, or any viewpoint at all."

"Internet identifiers are in today's world, essentially a virtual mask," he continued.
"To the extent that Prop. 35 affects expressive activity at all, it's not different than the requirement that sex offenders provide law enforcement with their aliases and other identifying information."

Use of the Internet by sex offenders to commit crimes rose between 2000 and 2006, the lawyer added.

"The fact that a registered sex offender didn't use the Internet to commit his first crime or facilitate it doesn't mean that he might not use the Internet in the future," Harrison said.

This point failed to sway Judge Mary Schroeder.

"That's true of all of us - that just because we haven't been sex criminals in the past, that we might not be in the future," Schroeder said. "I don't see how that the sex criminal [act] itself is a predictor of use of the Internet."

Harrison replied: "While I understand that not every sex offender will be recidivist or use the Internet to facilitate their crime, this burden on sex offenders is very low compared to the benefit to law enforcement and the public at large in protecting themselves against predators."

Risher, the ACLU lawyer, called Harrison's point specious.

"Many registrants pose no more risk of re-offending sexually than do people who have never been convicted of a sex offense," Risher said. ..Source.. by MARIA DINZEO

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No Justice: Sex Offenses, No Matter How Minor or Understandable, Can Ruin You for Life

7-29-2013 National:

Why do we treat the most predatory and dangerous criminals the same as those who are not?

The collection of laws and restrictions that regulate people categorized as “sex offenders” has been punctuated by names such as Megan, Jessica and Adam. These are the names of children, all victims of heinous crimes that sparked high-profile campaigns aimed at creating "get tough on crime” legislation. Today you can go online to your state's Megan's Law website, where all convicted sex offenders are required to register, and probably find clusters of red dots on the map of your neighborhood, each dot representing an individual convicted of a sex crime. In California, approximately one of every 375 adults is a registered sex offender.

While some states have considered adopting public registries for other crimes—domestic violence, drug dealing, murder—so far sex offenders comprise the only class of criminals who are deemed to warrant this special treatment, despite scant evidence that it is effective at reducing sexual assault. Registries are designed to protect children from “stranger danger,” a largely mythical threat belied by the fact that only three percent of sexual abuse and six percent of child murders are committed by strangers.

Far below the public's radar is a constant stream of new legislation affecting sex offenders. In 2013 alone, at least nine new laws were proposed in the California legislature to tighten or expand sex offender laws; if passed, these new laws would be applied indiscriminately to the entire registry, a list which includes persons convicted of public urination, teens having consensual sex, as well as serial rapists and violent pedophiles.

In California, registration is for life, a defining feature that is both revealing and confounding. Why do we treat those criminals considered the most predatory and dangerous the same as those who are not? Why do we view all as unworthy of redemption? And, can advocates working to redress a criminal justice system that has failed so many—people of color, women, poor people —find a place in their movement for those working for the rights of sex offenders?

“Emily"

Emily, 46, slips into a chair in the cafeteria on the top floor of the State Capitol building in Sacramento, California. Her hair , light and bright as a streak of lightning , is collected into a small ponytail and her right hand holds a plastic cup of red soda. She speaks in a muted voice: “I am on the 290 registry, I have been for 14 years. Before that, I had never been in trouble, not even a traffic ticket.”

Emily tells her story rapidly and repentantly: one night when she was 32 years old, she was drinking heavily and blacked out. She woke up to a chaotic and confusing scene: her 12-year-old neighbor straddling and fondling her body, as his father stood there shouting before he grabbed the phone to call the cops.

But the day I meet Emily that once-enraged father, Wayne, has accompanied her on her first trip to the legislative halls of Sacramento. “I didn't know what to do at the time; I just called the authorities,” Wayne says. “I had no idea what would happen to her,” Wayne says regretfully, sitting next to Emily.

What did happen to Emily? A lawyer who charged her $25,000 to represent her told her to accept a plea bargain. Thinking she was avoiding prison time, she accepted a deal that would place her on the California Sex Offender Registry. So Emily became another red dot on the map along with approximately 90,000 others in the state and 750,000 around the country. Her crime is described as “lewd and lascivious acts with a child under 14."

“At the time, I had no idea how being on the Registry would change my life and my children's lives,” Emily says.

In 2003 the Supreme Court determined that sex offender registration is not a punitive measure but one intended to provide protection for potential victims and “regulate” released offenders. Therefore, constant changes in requirements for registrants are permitted without being seen as violating the constitutional prohibition against ex post facto. Thus, as new restrictions governing registrants are continuously adapted into the penal code they are applied retroactively to the entirety of the registry. Current prohibitions against registrants in California vary slightly from city to city, but include not being permitted to live within 2,000 feet of a school, park, nursery or church; obtain a contractor's license; practice medicine or law; foster a child. Sex offenders are ineligible for some federal and state grants and cannot live in federal public housing.

Jeff Stein has served as a defense attorney for sex offenders since the 1970s. He likens the Supreme Court ruling to the fig leaf donned by Michelangelo's David, “making the nude statue appropriate to the small town in Italy.”

“The government —the legislature and the judiciary—wanted to be able to make retroactive change so as to create registration impacts that hadn't existed previously. So, they came up with a rationale: registration is not a penalty or punishment.”

When California voters enacted Proposition 83 (known as Jessica's Law in other states) in 2006, they toughened existing penalties on registrants and bestowed the right to municipalities to adopt their own additional rules for sex offenders —thus accelerating the rate at which the vise tightens around the lives of registrants.

“The cute little trick that localities are doing now is they will put a bench and watering hole on a corner and call it a 'pocket park,' forcing registrants to move,” Stein says.

J.J. Prescott, law professor at the University of Michigan, has written extensively about the social and behavioral impacts of sex offender laws. Prescott's research indicates that current notification and registration laws may actually increase the likelihood of reoffense by imposing financial, social and psychological barriers on released sex offenders. Prescott explained why he was initially attracted to researching this area of law:

“For the most part, criminal law has been stable for a long time. There are only a few areas where criminal law is changing rapidly and as a result affecting hundreds of thousands of lives.”

“Sex offender law is one of those areas of incredible change. Every year legislators are changing and adding laws; it's dynamic.”

And for the last 14 years Emily has lived through these changing laws, “Every couple of years there would be a new law affecting me.”

“Before, with my sons—who are now 16 and 13—I went to back-to-school night, soccer games, baseball games, everything. But as the laws progressed, now I can't go to Little League games anymore, I can't go to parks, and I can't go to school events without obtaining special permission.”

Perhaps the single most potent torment for registrants is being made a public, humiliating spectacle.

Prescott says, “Notification and registration privatizes punishment: we won't put you in jail but we will make it so no one will hire you, date you, and your family will become very uncomfortable.”

Emily says, “I tried to commit suicide twice, just the shame of the label itself. Right now everyone is thrown into one category. It doesn't matter what you did. There's a lot of ignorance about it. I would keep my blinds shut, I didn't answer my door. Anytime somebody drove really slow on my street my heart would freeze.”

Emily has worked hard to find sources of support in her community. “For a good 10 years, I didn't have a life,” she says.

While the laws continued to batter Emily into further seclusion, an advocacy group approached her. Janice Bellucci, the president of California Reform Sex Offender Laws (CARSOL), contacted Emily after ordinances prohibiting registrants from being present in arcades, movie theaters, beaches, museums, libraries and a host of other public places, swept through Orange County and other cities in the southern part of the state.

California RSOL is a small group that was largely dormant until Bellucci took the reins in September 2011. Once in charge, Bellucci, a lawyer, established the group as a 501(c)4 and set about to use targeted litigation in order to fend off the avalanche of legislation aimed at piling on restrictions to registrants.

Now, the group resembles a genuine civil rights organization. In the fall of 2012, Bellucci and California RSOL successfully fought off pending ordinances that would have imposed excessive restrictions on registrants, including one that would have prohibited registrants from decorating their houses for Halloween and required them to place a sign in their front yards that stated: “No candy or treats at this residence.”

In a precious instance of coalition building, California RSOL teamed up with the Electronic Frontier Foundation and the ACLU of Northern California to file a suit against a provision within last November's California State Proposition 35 that required registrants to submit all of their internet identities (email addresses, handles, usernames for accounts on Amazon, Yelp, political and personal forums, and so on) to the public registry and to continue to register any new online identity with the local police within 24 hours. As a result of their suit, a federal court issued an injunction against the provision.

Last winter, Bellucci reached out to Emily because she wanted to sue the cities that had adopted the draconian “presence restrictions” and thought Emily might want to be a plaintiff in the case. After years spent trying to hide her shameful label, Emily was at first reluctant to participate in something that would highlight it.

“But it came to the point that if I didn't do anything, nothing would change," she says. "It took me a couple of weeks but I eventually got back to Janice.”

Having experienced a few, but significant, successes at the local level, California RSOL convened in the State's Capitol this May with the intention of lending support to the fight against lifetime registration for all. San Francisco Assemblyman, Tom Ammiano, had made his second attempt to introduce legislation that would implement a tiered registry. Under his proposal, a convicted sex offender would be required to register for periods of 10, 20, or for some, a lifetime, depending on the severity of the offense.

The bill, AB 702, was conservative by any measure: it would have brought California in line with 46 other states, by CARSOL's calculations saved the state around $15 million annually by paring down the bulky directory, and still placed even mild 290 offenders like Emily in the second tier.

Emily travelled from the central valley of California to join Bellucci and other advocates, as well as a handful of other registrants and their families, to encourage legislators and their staffers to support Ammiano's bill.

In the cramped rooms of legislators' staffers, each person provided a different perspective on why a tiered registry is sensible law.

Janice, an experienced lobbyist, presented an unsentimental assessment and maintained focus on the practicality of the proposed legislation.

Emily told her story to each staffer just as she had to me.The other registrants who came to Sacramento to tell their stories appeared less shamed than Emily, who is relatively new to advocating for herself. One young man, “Mitch,” was placed on the registry at the age of 20, seven years after he and his cousin touched each other's developing bodies in a moment of curious and consensual exploration. All those years after the incident, his aunt, who had suddenly come to believe that this single past action made Mitch a current menace, turned him over to the police. The Adam Walsh Act of 2006 required states to place “offenders” as young as 14 years old on state registries.

"Frank" told his story as though he was talking about someone else. Frank was cleared of his conviction in 1984 after serving out his sentence in county jail. In the following 12 years he started his own business and was appointed president of the local Chamber of Commerce. But in 1997 California's penal code changed and forced Frank to publicly register. Overnight, the life he had created was no longer possible: he lost his contracting license and the lease to his business, and was plunged into poverty.

Also in attendance to urge support for the bill were Charlene Steen, a retired psychologist who has treated sex offenders since the 1980s, as well as a current parole officer.

But in early June, chair of the House Appropriations Committee, Mike Gatto, did not permit the bill to go forward and so it will remain in suspense until next year.

Tom Ammiano was disappointed his bill failed to go to public session and said, “You'll find a lot of support for it behind the scenes, but not up front. People are just too timid.”

Indeed, legislators had repeatedly referred to the bill as “radioactive."

Beyond the reality that legislators fear looking soft on crimes of any kind, sex crimes are shrouded in myths and lies that have generated a legal logic that supports their unique treatment —making a bill that merely attempts to restore some semblance of civil rights to convicted criminals like Emily considered “radioactive.” Despite study after study indicating that crimes of a sexual nature have one of the lowest rates of recidivism, popular perception continues to be that those who commit sex crimes are stricken with a disease; incurable and irredeemable.

Who does the registry save?

Every year, on their birthdays, registrants are required to go to the police department and re-register. They must update their picture and residential information that will appear on the website and address any other concerns. Throughout the year, Emily keeps a folder documenting all the places she goes and the permission she obtained to go there: to her weekly Bible study group; parent-teacher meetings and so on. When she makes her birthday trip to the police department, she must take this folder with her.

Eugene Porter, a therapist who has worked with convicted sex offenders and male child victims of sexual abuse since 1984, describes this annual ritual as a “powerful shaming structure.”

And what about the shamers? Criminologist and professor Chrysanthi Leon remarked that the public spectacle of these hyper-restrictive laws is a “crucial way of signaling that we're doing something about sexual violence, when in reality we're doing very little.”

Tom Tobin, a psychologist by training and currently serving as the vice-chair of the California Sex Offender Management Board, carefully acknowledges the unique trauma experienced by a victim of a sexual crime, but questions whether concern for this lasting emotional damage is what fuels our current handling of such crimes.

“I think there's something more primitive," he says. "There's something about human sexuality that engages some part of everyone so that if we can identify this group who can be the 'bad ones' around human sexuality, or the exercise of it, than maybe it lets the rest of us off the hook. We can be sexist, anti-woman; we can make our own behaviors acceptable because it's the sex offenders who are violating peoples' rights. I think there's something deeper and more profound going on that makes it difficult for people to respond in a thoughtful way.”

When Eugene Porter reflects on the experiences he has witnessed and treated over the course of his three-decade career, he conveys an authority over and insight into a subject of which he nevertheless insists we must “acknowledge the level of our own ignorance.”

“Being a sex offender is the worst stigma—maybe after 9/11, being a terrorist is as bad,” Porter asserts.

It is not uncommon to hear people who work in this field employ the metaphor of terrorist to describe how the criminal justice system has come to treat and portray sex offenders. Both specters have been ascribed a set of behaviors and placed on a continuum of threat to a vulnerable society. Wherever one falls on that continuum, there is an assumption that forward progression on it is inevitable.

With the logic of a continuum, on which offenders are interminably placed, a justification emerges for a permanent registry that treats all offenders of crimes involving sexual arousal or genitalia as essentially the same. Our attachment to a powerful system that confines and separates thousands of individuals, making pariahs of them all , reveals for whom these shaming rituals and spectacles provide a soothing salve: it's for those of us not on the list. ..Source.. by Charlotte Silver is an independent journalist currently based in San Francisco.

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9th Circuit Asked to Revive Trafficking Law

2-21-2013 California:

(CN) - California wants to revive a human-trafficking law that a federal judge enjoined for imposing unconstitutional penalties on convicted sex offenders.

Attorney General Kamala Harris said the appeal represents her pledge to combat human trafficking in a state that boasts the world's ninth largest economy.

Among the provisions of Proposition 35 that took aim at human traffickers, the voter-approved law increased prison terms for such offenders and required convicted sex traffickers to register as sex offenders.

The Californians Against Sexual Exploitation Act, or CASE Act, also mandated law-enforcement training on human trafficking and required convicted human traffickers to pay criminal fines that would fund victim services.

Civil liberty advocates balked, however, at a provision that requires all registered sex offenders to give police a complete list of their user names, screen names, email addresses and Internet service providers within 24 hours of setting up a new account or screen name.

Violations are punishable by up to three years in prison.

The day after the passage of the initiative, two anonymous sex offenders joined a group called California Reform Sex Offender Laws in a class action to block its enforcement. They claimed that the requirements were overly broad and impeded their right to engage in anonymous, online free speech.

U.S. District Judge Thelton Henderson awarded them an injunction last month, finding it likely the class would show "that the challenged provisions, when combined with the lack of protections on the information's disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster."

California also failed to show that its interest in fighting sex offenses and human trafficking outweighed privacy interests, according too the ruling.

"The government has not demonstrated that the CASE Act's impact on public safety is sufficient to overcome the interest - both to plaintiffs and to the public - in avoiding infringement of plaintiffs' First Amendment rights," Henderson wrote. "In this case, the government has not provided any evidence regarding the extent to which the public safety might be enhanced if the additional registration requirements went into effect. plaintiffs' evidence - as yet undisputed - indicates that only 1 percent of arrests for sex crimes against children are for crimes facilitated by technology, and that registered sex offenders are involved in only 4 percent of these arrests. While the court does not minimize the significance of any single crime, the record at this stage of the proceedings suggests that the potential usefulness of the Internet registration information is limited to a very small portion of the universe of sex offenses and online sex offenses."

Harris, who has vowed to crack down on human trafficking, says the Internet and new technologies have "transformed the landscape of human trafficking."

"Traffickers use social media and other online tools to recruit victims and, in the case of sex trafficking, find and communicate with customers," she said in an official statement. "While technology is being used to perpetrate human trafficking, that same technology can provide a digital trail - a valuable investigative tool for law enforcement to monitor, collect, and analyze online data and activities."

Chris Kelly, the former chief of privacy at Facebook, helped draft Proposition 35. Nearly 81 percent of voters approved the measure.

Opponents of the initiative say it would have a negative effect on state budget and could force those engaged in consensual prostitution to register as sex offenders.

Harris launched a work group to examine human trafficking in California, and released a report on the matter in 2012.

Human trafficking "the world's fastest growing criminal enterprise," Harris said, citing estimates that predict it will be a $32 billion-a-year global industry.

Harris appealed the injunction to the 9th Circuit on Feb. 11. ..Source.. by JONNY BONNER

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Lawsuit seeks to block sex trafficking law

See complaint here UPDATE: TRO Issued 1-11-2013

11-7-2012 UPDATE 1-11-2013 California:

Hours after California voters overwhelmingly approved Proposition 35, which is aimed at cracking down on sex traffickers, civil rights organizations filed a lawsuit Wednesday morning seeking to block provisions of the ballot measure, accusing them of being overly broad and a violation of sex offenders' First Amendment rights.

The suit, filed in federal district court, targets Prop. 35's online speech regulations, which require anyone registered as a sex offender in California to hand over a list of their Internet identities and activities to law enforcement. More than 73,000 people are currently on the state's sex offender registry.

The American Civil Liberties Union of Northern California and Electronic Frontier Foundation charge in the suit that those provisions are overly broad and violate sex offenders' First Amendment rights.

Prop. 35 passed with more than 80 percent of the vote.

"The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us," said Michael Risher, a lawyer for the American Civil Liberties Union of Northern California, which filed the suit with the Electronic Frontier Foundation.

"Stopping human trafficking is a worthy goal but this portion of Prop. 35 won't get us there," Risher said.

The groups argue that the requirement will force registered sex offenders - even those convicted of "decades-old, low-level offenses like misdemeanor indecent exposure" and those who were never convicted of a crime related to the Internet - to divulge sensitive information, such as their activity in online political groups.

The suit was filed behalf of two unidentified sex offenders as well as a group called the California Reform Sex Offender Laws, which advocates for restoring civil rights to sex offenders.

The groups are asking U.S. District Court's Northern California division to block the provision of the law that requires all registered sex offenders to provide the names of their Internet providers and online identifiers to local law enforcement. Prop. 35 includes e-mails addresses, user names and screen names in its definition of personal identifiers. The measure also requires sex offenders to report any new online identifiers within 24 hours of their creation. ..Source.. by Marisa Lagos

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California judge considers sex offenders' social media

There is no law to monitor RSO Speech in society, why should there be one for the Internet? RSOs do not have to report the address or place where they speak to another person in society, the Internet should be the same.

12-18-2012 California:

Even child sex offenders have free speech rights.

The question for a federal judge Monday was whether those rights can be limited by a voter-approved requirement that registered sex offenders turn over vital online information such as social media passwords, usernames and Internet service providers to law-enforcement officials.

U.S. District Judge Thelton Henderson didn't say much during the nearly three-hour hearing in San Francisco, giving no indication of how he will rule in the coming weeks. Henderson earlier put that provision of Proposition 35 on hold pending the outcome of a lawsuit filed by two convicted sex offenders represented by the American Civil Liberties Union and the Electronic Frontier Foundation.

The ACLU and EFF argue the rule violates their clients' free speech rights because it prevents them from expressing their views anonymously like other Web surfers. The lawyers also argue that the requirement will "chill" — or dissuade — sex offenders who have served their sentence from exercising their free speech rights online.

"There is no historical preference of stripping people of their 1st Amendment rights because they were convicted of a crime long ago," ACLU attorney Michael Risher said. "They have the same rights as everyone else as soon as they finish probation or parole."

Proposition 35, which passed with 81 percent support, also set higher prison sentences for sex traffickers while requiring those convicted of that crime to now register as a sex offender. The lawsuit doesn't challenge that portion of the law.

California deputy attorney general Robert Wilson on Monday defended the reporting provision as a necessary and helpful tool for law enforcement officials seeking to stop sex crimes before they happen while also investigating those that did.

"It's not so we can monitor what books or groceries they are buying," Wilson said. "It's for if something bad or suspicious pops up."

He said the sex offenders' online anonymity is protected because what they report is not a public record. Wilson said police who disclose the information or mishandled it are subject to discipline, including dismissal and even criminal charges.

James Harrison, a lawyer who represents former Facebook executive Chris Kelly and other backers of Proposition 35, told the court that the information offenders who have to register have to report is limited.

"Nothing in Proposition 35 requires a registrant to report what Web sites he visits," Harrison told the judge.

The judge said he would "rule as soon as possible." ..Source.. by PAUL ELIAS

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Suit Contests Limits on Online Activities of Sex Offenders

11-17-2012 National:

California’s sex offender registry, the nation’s oldest and largest, lists more than 74,000 living Californians convicted of sex crimes since 1947. Like sex offenders elsewhere in the nation, they have been increasingly restricted in recent years as communities have barred them from not only schoolyards and playgrounds but also beaches, libraries, harbors and other public places.

Now, under a ballot initiative that California endorsed on Election Day, sex offenders’ movements will also be monitored in the digital realm. They must inform the authorities of their e-mail addresses, user names, screen names and other Internet handles, as well as report any additions or changes within 24 hours. The information will not be included in the public registry that lists sex offenders’ names, addresses and other details.

The new law immediately brought a lawsuit from the American Civil Liberties Union, which argued that its requirements violate the First Amendment by infringing on the right to free, anonymous speech on the Internet. A federal judge has issued a temporary restraining order blocking the Internet provisions of the law, which also includes increased prison terms for sex trafficking. The judge is expected to consider a request for a preliminary injunction at a hearing on Tuesday.

The dispute in California, home to many Internet companies and some of the nation’s fiercest advocates of online freedom, could have wider repercussions. In recent years, many states have struggled to place appropriate limits on the online activities of registered sex offenders, with some issuing outright bans on using the Internet and others imposing narrower restrictions. Successful legal challenges have forced some state legislatures, like Louisiana’s, to alter their bans, while the courts have upheld outright bans elsewhere, including in Indiana.

The ballot measure’s original supporters, including Chris Kelly, a former chief privacy officer at Facebook, are expected to join the state in defending the new law. Mr. Kelly said it simply closed “the Internet loophole” in the existing sex offender registry.

“What California law does now is it adds essentially an extra field in the database of what sex offenders have to register,” Mr. Kelly said. “That is a common-sense way to extend the registry in the Internet era.”

Speaking about the law and the possibility that it runs afoul of the First Amendment, he said: “This doesn’t do that, and it’s deliberately crafted not to do that. All it says is law enforcement and, in some cases other entities, should have access to that data.”

Failure to comply with the law, which also requires registered sex offenders to inform the authorities of their Internet service providers, could result in punishment ranging from 90 days in jail to three years in prison.

Michael Risher, the A.C.L.U. lawyer leading the suit, said the law was unconstitutional because it is too broad. The law, he said, applies to all registered sex offenders, including those whose convictions have little to do with online activities, like sex workers or those convicted of indecent exposure. What is more, he said, is that it makes no distinction between online activities, and it would curtail even Internet usage that could not be criminal.

“This is a problem under the First Amendment,” Mr. Risher said. “Americans have a right under the First Amendment to speak anonymously, and this eviscerated that right. People, for example, would have to turn over the screen names they use to comment on the New York Times Web site.”

“That’s not activity that can be used to commit a crime in any way,” he continued. “It is pure speech, often pure speech about important political issues of the day. It’s an area where there is no reason for the government to be requiring people to identify themselves to the police.”

In the lawsuit, the A.C.L.U. is representing two anonymous sex offenders who say they will reduce or cease their participation in online discussions on political topics for fear that their identities could be revealed.

The requirements became law after Californians overwhelmingly passed Proposition 35. Mr. Kelly, who ran unsuccessfully for state attorney general in 2010, bankrolled the campaign for the initiative, which did not face an organized opposition.

Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, an Internet civil rights group that has joined the A.C.L.U. in the lawsuit, said the law reflected government attempts to strengthen limits on sex offenders and regulate the Internet. Sex offenders, he said, should be guaranteed First Amendment rights in both physical and digital spheres.

“Online speech is very different in form than traditional speech,” Mr. Fakhoury said. “But in substance, they should be treated the same under the First Amendment.”

Other states, including New York and Utah, also collect Internet information for registered sex offenders. But how that information can be used and from what category of sex offender it is collected varies according to the states’ laws, experts said.

The First Amendment implications of those laws carry great significance, experts said, because they will remain in effect long after sex offenders have served their sentences — for life, in the case of California.

Prof. Ruthann Robson, who focuses on constitutional law at the City University of New York School of Law, said California’s law was one of the nation’s broadest in requiring online information for all sex offenders, regardless of the severity of the crime or its link to the Internet.

“These laws are not supposed to be about punishment but about prevention,” Professor Robson said. “If we curtail someone’s First Amendment rights because we’re afraid something else will happen, there has to be a really close fit between how the state is curtailing somebody’s First Amendment rights and what they think is going to happen.”

Daphne Phung, the founder of California Against Slavery, a private organization that works to combat sex trafficking and campaigned for the ballot initiative with Mr. Kelly, said registered sex offenders presented a potential danger even if their crime was unrelated to the Internet.

“The Internet has been used in an increasing way to lure, to recruit, to exploit children, but also even adults,” Ms. Phung said. “We want to make sure that our law enforcement has the tools that they need when they need those tools.” ..Source.. by NORIMITSU ONISHI

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15-year-old offender can't lose right to use social media, court rules

OK, as good as this looks, if you read the actual decision (see link n first sentence) -at the very top of it- it says "California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115."

10-31-2012 California:

Teenager was put on probation for 'lewd acts' unconnected to Internet use.

A teenager who was put on probation for molesting a 2-year-old, and restraining a 13-year-old, still can't have his rights to use social media taken away, a California Appeals court ruled.

The 15-year-old defendant, whose first name is given as Andre, was found guilty of holding the 13-year-old's arms while he ground his pelvis against her; and of touching the toddler's genitals. He was put on parole with a variety of conditions, including some relating to his use of computers.

Some of those computer-related conditions were unconstitutional, however, a panel of appeals court judges ruled last week. Andre's probation would have prohibited all computer use "unless supervised by a responsible adult over the age of 21 who is aware that the minor is on probation and of his charges." He was also banned from using "a computer for any purpose other than school related assignments," had to always be supervised while using a computer, and was barred from using Twitter or having "a MySpace page, a Facebook page, or any other similar page."

Those restrictions went too far, wrote the appeals judge in an opinion (PDF) first reported by CNET. Andre still has a First Amendment right to use the Internet; and any restrictions on his use have to be tailored to the crime—and his crimes had nothing to do with the Internet at all. "Absent any connection between Andre's criminal history and the blanket Internet ban, there is no support for the People's claim that it is properly related to future criminality." The trial court was ordered to modify the terms of probation, especially regarding use of social media and the blanket computer ban.

The constitutionality of restrictions on Internet use for adult sex offenders is also being tested in California right now. Proposition 35, which California voters just passed by an overwhelming margin, imposes new punishments for sex offenders, including a requirement that they disclose all their online identities—usernames, e-mail addresses, et cetera—to law enforcement. Yesterday, a federal judge granted a temporary restraining order stopping those provisions from going into effect, after the ACLU and EFF filed a lawsuit challenging those parts of the law. ..Source.. by Joe Mullin

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Temporary Restraining Order granted by the court to stop enforcement of Proposition 35

11-7-2012 California:

California registrants won a major victory today! Federal district court judge Thelton Henderson granted a Temporary Restraining Order (TRO) late Wednesday that prevents enforcement of requirements in Proposition 35 that require registrants to identify their online identities and activities.

The TRO will stay in effect for 14 days.

A hearing on whether to extend the TRO is scheduled for November 20 in San Franciso. ACLU and the Electronic Frontier Foundation (EFF) filed the lawsuit, which includes California RSOL as a plaintiff, earlier today. ..Source.. by CA-RSOL

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Legal Documents from ACLU website:
Temporary Restraining Order (Nov. 7, 2012)

Memo of Points & Authorities in Support of Temp. Restraining Order & Preliminary Injunction (Nov. 7, 2012)

Ex Parte Application for Temp. Restraining Order & Order to Show Cause Why Preliminary Injunction Should Not Issue (Nov. 7, 2012)

Complaint (Nov. 7, 2012)

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