ACLU Files Suit to Block Portions of Prop 35

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Prop-35-Sex-traffickingHuman trafficking is a growing problem and Californians overwhelmingly supported the passage of Prop 35, which created harsher sentencing for those involved in human trafficking.

81 percent of the voters supported Prop 35, which will increase fines and prison sentences as well as require convicted human traffickers to register as sex offenders and disclose internet activities and identities.

Those convicted of human trafficking could face a maximum sentence of 12 years – doubling the previous penalty – and those whose crimes involved children could face a life sentence.

However, there are some more troubling aspects of the law, including the disclosure of internet activities and the expansion of the definition of human trafficking to include the distribution of child pornography.

As a result, the ACLU and Electronic Frontier Foundation (EFF) filed a federal lawsuit to block provisions that require registered sex offenders to give authorities a list of their internet providers and screen names.

U.S. District Judge Thelton Henderson issued a temporary restraining order until there is a full hearing November 20, arguing there are “serious questions” of constitutional rights to be considered.  He also noted that the provision could not be enforced anyway until March, so harm would be minimal in staying the order.

“Proposition 35 requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet – to turn over a list of all their Internet identifiers and service providers to law enforcement,” the ACLU argued in a press release.  “While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments.”

Under the law, more than 73,000 Californians must immediately provide this information to law enforcement, and must report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations can result in years in prison.

The ACLU argued, “Proposition 35’s online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech, even when the speaker is using his own real name as a screen name.”

“The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us,” said Michael Risher, staff attorney at the ACLU-NC. “Stopping human trafficking is a worthy goal, but this portion of Prop 35 won’t get us there.”

The suit was filed Wednesday in U.S. District Court for the Northern District of California on behalf of two individuals required to register as sex offenders and a non-profit organization, California Reform Sex Offender Laws – a group that believes that no sexual abuse is ever acceptable but that laws that paint all sex offenders with one broad brush are counter-productive. The California Reform website allows people to comment on posts and they regularly do so, generally under pseudonyms.

“Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics,” said EFF Staff Attorney Hanni Fakhoury. “When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets.”

Even before Tuesday’s vote, California’s sex offender statute was already very broad, the ACLU argued, “with a lifetime registration requirement for even low-level convictions like nude erotic dancing on stage at a bar. The state has the tools to determine who presents a risk to public safety and who doesn’t – but this statute applies to everybody, no matter what the risk.”

“We’re asking the judge today to block the illegal provisions of Prop 35,” said Mr. Risher.

In response, the Prop 35 proponents argued that suits like the one filed have been regularly rejected by the court.

Leah Albright-Byrd, Human Trafficking Survivor and Advocate said “Californians overwhelmingly said they stand by survivors and victims of human trafficking.  Prop 35 was designed to protect vulnerable women and children from exploitation on-line and off-line. It will finally bring justice for those who have lived through these horrific crimes.”

Chris Kelly, Former Chief Privacy Officer for Facebook, and founder of the Safer California Foundation argued, “Last night, the voters of the State of California made Proposition 35 the most popular initiative in the history of our state.”

However, it could also be argued that, while most voters supported the concept of making the laws tougher, that does not make the provisions lawful.

Mr. Kelly added, “The ACLU and EFF challenge to Proposition 35 is an attack on the very idea of sex offender registration requirements to protect kids and adults alike. Proposition 35 follows the pioneering approach I first took with New York Governor Andrew Cuomo of extending these longstanding registration requirements to include online identifiers so law enforcement has better information to fight trafficking and apply the law online.”

He too noted, “The ACLU’s claims have been previously litigated many times, and courts have repeatedly rejected their fanciful and dangerous misinterpretations of the Constitution.”

Daphne Phung, founder of California Against Slavery argued, “A broad coalition of survivors, advocates, law enforcement and now millions of Californians supported this initiative to stop human trafficking and stand with survivors. Our first priority is to protect women and children from being trafficked and to use all the legal tools available to protect them on-line and everywhere.”

The problem, as the suit notes, is that the statute requires “that 73,000 Californians who are required to register under California Penal Code § 290 as a result of being convicted of a sex-related offense to immediately provide the police with their Internet identifiers and service providers. These requirements, enacted as part of Proposition 35, cover individuals who were convicted of a wide range of crimes, including misdemeanor indecent exposure, at any point since July 1, 1944, and they require registrants to provide information about online activities that have no possible relationship to criminality, such as the screen names they use to post comments about articles on a newspaper’s website or names that they use to access political discussion groups.”

As the suit notes, “These new requirements burden the online speech of all such persons, infringe on their right to engage in lawful, anonymous speech on the Internet, and require them to reveal their membership in online groups, including groups devoted to political reform. Because they sweep much too broadly in terms of who must comply with them and the types of information they must provide, they are overbroad, in violation of the First Amendment.”

The suit adds, “The statutory definitions of ‘Internet identifier’ and ‘Internet service provider,’ which do not comport with the common understanding of these terms, are unconstitutionally vague. As a result of these and other constitutional infirmities, the statutes are facially invalid and cannot be enforced.”

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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4 thoughts on “ACLU Files Suit to Block Portions of Prop 35”

  1. Rifkin

    This is what the LAO analysis said of the provision that the ACLU is objecting to:

    [i]”This measure requires registered sex offenders to provide the names of their Internet providers and identifiers to local police or sheriff ’s departments. Such identifiers include e-mail addresses, user names, screen names, or other personal identifiers for Internet communication and activity. If a registrant changes his or her Internet service account or changes or adds an Internet identifier, the individual must notify law enforcement within 24 hours of such changes.”[/i]

    I voted no on Prop 35 for other reasons. However, this provision of the measure did not strike me as particularly harsh or unconstitutional. It is right in line with the other present ways that law enforcement tries to keep tabs on registered sex offenders. I am certain the ACLU lawsuit will fail.

    Whether we should ever let out of prison a convicted rapist or someone who seriously abused a child is another matter*. But if they are living in our midst, then I have no better idea than giving the police the ability to keep track of them, and that would include knowing if they are using the Internet in ways that are criminal or might lead them back to harming other people.

    The ACLU points out that this applies to sex offenders who present no likely danger, “even people with decades-old, low-level offenses like misdemeanor indecent exposure.”

    My take is that the ACLU’s lawsuit approach to the low-level offenders is wrong. The problem is that we don’t make a sensible distinction between a violent felonious rapist and a harmless misdemeanor exposer. What the ACLU ought to be doing is lobbying our two-thirds Democratic state legislature to change the sex-offender registration laws in order to make this distinction crystal clear.

    For rapists and pedophiles and the like who get out of prison — which I doubt ever makes real good sense* — they need to be registered sex offenders for the rest of their lives. It does not matter whether they used the Internet for their original crimes. They are very dangerous psychopaths and we need to keep an eye on them.

    For non-threatening ex-offenders who served their time in prison or did community service and have completed parole, they should not have to register as a sex offender ever again. Doing that would solve the real problem caused for them by Prop 35.

    Alas, I doubt the ACLU has anyone with enough sense to pursue the right course.
    ——
    *I once asked a psychologist in Davis, a very smart guy with a lot of commone sense, who works at the mental hospital-prison facility in Vacaville about this notion of castrating rapists. He shook his head and said it would not work. The problem is in their minds, their wiring, their personalities. It’s not in their balls. I then asked if they are ever curable. He shook his head and said, “almost never, bordering on never.” Given that, what sense does it make to have convicted rapists and pedophiles living in our communities? To save on costs, I think we should exile them to a remote island where they can live out their days away from all possible victims.

  2. David M. Greenwald

    “The problem is that we don’t make a sensible distinction between a violent felonious rapist and a harmless misdemeanor exposer. What the ACLU ought to be doing is lobbying our two-thirds Democratic state legislature to change the sex-offender registration laws in order to make this distinction crystal clear. “

    I’m trying to figure out if that’s possible it looks like there may be overlapping laws, some passed by the legislature (Megan’s law) some passed by the voters (Jessica’s Law).

  3. davisite2

    How many of those who voted for Prop 35 read the full and exact language of the measure? How many then took the time and effort as well as had the legal capacity to fully understand its potential negative unintended consequences? Complex issues that call for careful legal analysis are best left to those who have the required “skill sets”(legislative consideration) rather than put before the voters for their “gut” approval..

  4. Rifkin

    D2: those are good questions. Since I don’t think most of us have the expertise, time and intellect to fully consider most initiatives, and because most won’t even bother to consult with others who know more and whom the ordinary voter trusts, I am generally against the idea of having initiatives at all, especially if they are complex in nature. A side problem is that if they mostly work, but in one or two secondary respects cause trouble, it is next to impossible to correct the troubles. If, by contrast, our legislature passed a bill which had secondary problems, the legislature could, without too much cost, amend the legislation.

    That said, our legislature is itself corrupted by its need to privately raise funds. The ordinary person does not have in most circumstances a huge personal stake in the outcome of an intiative. So what the legislature passes is so often far from ideal, far from serving the true public interest. If a proposition is put before the voters and it clearly is designed to benefit a special interest at the expense of the general interest — an example of this might be Proposition 10 of 2008, where its promoter, T. Boone Pickens, designed it to benefit his own natural gas investments — the voters will almost always vote down such a measure. A corrupt legislature, depending on who is doing the corrupting, is less certain to make that call.

    For that reason, we are much worse off as a state for having rejected Proposition 32. The unions have corrupted our legislature. The legislature is now owned and operated by the unions. And while there are some principled elected officials, even among the Democrats, it will be very hard to stop the unions from riding rough-shod over the public interest going forward.

    I recently sat down for coffee with a member of the California legislature. We were talking about the power of the CTA. One thing this legislator, a Democrat, told me, was that the teachers’ association fights tooth and nail every attempt at reform, even what the legislator called “common sense reform.” We both agreed that now that the Democrats have a super-majority, getting needed education reforms passed is now impossible. The CTA simply has too much money and thus power to get past them.

    So if a reform of education ever happens, it will have to be through an initiative. And it is likely that sort of reform will have the same kinds of problems seen in Prop 35. That is, it may be good in the main, but will likely have unintended secondary problems which come along with it.

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