Sex Offenders Have Constitutional Right to Post Online Without Revealing Identity

11-27-2014 California:

A 2012 California voter initiative requiring registered sex offenders to disclose all their e-mail addresses, screen names, social networking user names and other online activities to local law enforcement likely violates the First Amendment, the U.S. Court of Appeals for the Ninth Circuit ruled Nov. 18.

“Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the public,” the court said in an opinion by Judge Jay S. Bybee.

‘Robust Political Debate.'

Lawyers who filed the class action complaint on behalf of the John Doe plaintiffs hailed the decision as a victory for First Amendment rights.

“We're glad the court recognized that everyone, regardless of their criminal history, should have the opportunity to speak freely and anonymously,” Hanni Fakhoury, of the Electronic Frontier Foundation, San Francisco, told Bloomberg BNA.

“While the law may be well-intentioned, its broad language opened the door for the government to chill free speech,” Fakhoury said. These types of restrictions often serve as a “stepping stone” to expand law enforcement power against other classes of unpopular people, he said.

Linda Lye, of the American Civil Liberties Union Foundation of Northern California, told Bloomberg BNA that the decision “recognizes the importance of anonymity in fostering robust political debate.”

“The portions of Prop 35 that unconstitutionally limit what people say online won't help us end human trafficking,” she said.

Right to Be Anonymous

The Californians Against Sexual Exploitation Act included an amendment to Cal. Penal Code § 290.015(a)(4), (5), which now requires all registered sex offenders to surrender a list of their Internet service providers and “any and all Internet identifiers” they use.

The act further states that if a person covered under the reporting provision switches providers or changes any of the monikers he used, he must send written notice of the change within 24 hours “to the law enforcement agency or agencies with which he or she is currently registered.”

The ACLU and the EFF sued to stall the act's implementation, and a federal district judge granted a preliminary injunction. The Ninth Circuit affirmed, concluding that the plaintiffs are likely to succeed on their claims that the law infringes protected First Amendment activity. ..Continued.. by Lance Rogers

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New Parties Want to Defend Trafficking Law

11-14-2012 California:

AN FRANCISCO (CN) - Human trafficking opponents want to intervene in a class action brought by two registered sex offenders fighting a California proposition.

The two offenders, represented by the American Civil Liberties Union and the Electronic Frontier Foundation, claim that a provision of Proposition 35 violates their civil rights in requiring them to give police a list of their Internet activity.

In its bid to fight human trafficking, part of the voter-approved initiative requires sex offenders to turn over their Internet service providers, screen names and email addresses.

Defenders of civil rights say this provision impedes the right of sex offenders to engage in anonymous, online free speech.

U.S. District Judge Thelton Henderson granted a temporary injunction on the section last week.

On Monday, Henderson received a motion to intervene from Daphne Phung, founder of the nonprofit California Against Slavery, and Silicon Valley attorney Chris Kelly of the Safer California Foundation. Phung and Kelly officially backed Proposition 35.

The pair say that the sex-offender plaintiffs do not oppose such intervention, but that they want to assurances that their anonymity will not be compromised.
"Plaintiffs' concerns do not present a legitimate basis for opposing or restricting proponents' intervention," according to Phung and Kelly's motion. "These plaintiffs have come to this court seeking to overturn the will of an overwhelming majority of California voters who want Proposition 35 to protect them, their children, and their communities from registered sex offenders who are online sexual predators. Although plaintiff sex offenders have the right to a full hearing on their claims in this court, plaintiffs go too far when they seek to restrict the ability of the People of California - who speak through a ballot measure's official proponents in post-election litigation - to be fully heard on all of the issues that plaintiffs bring before this court."

It adds:"It strains credulity to suggest that the voters of California should have less voice in that matter than the registered sex offenders from whom they seek protection, for any reason, let alone the mere convenience of those offenders."

Phung and Kelly are represented by James Harrison and Margaret Prinzing of Remcho, Johansen & Purcell of San Leandro, Calif. ..Source.. by MARIA DINZEO

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Lawsuit seeks to block sex trafficking law

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

11-7-2012 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 measure would ban anonymous online speech for sex offenders

This measure would violate U.S. Supreme court decision in McIntyre v. Ohio Elections Commission

11-6-2012 National, California:

If there's anything everyone can agree about, it's that sexual exploitation of minors is wrong. Proposition 35, on the ballot in California for Tuesday's election, would take a number of steps to crack down on sex offenders. It would increase penalties for crimes related to both child and adult prostitution, fund support services for victims of these crimes, and require law enforcement officials to receive additional training on the topic.

A less-noticed provision of the proposal would effectively ban registered sex offenders from engaging in anonymous speech online. If the proposition passes, sex offenders would be required to notify local law enforcement agencies every time they signed up for a new Internet Service Provider or acquired a new "Internet identifier." That is defined as "an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication."

The provision has raised the ire of civil liberties groups like the Electronic Frontier Foundation. "EFF opposes this proposition because it would create new restrictions on online speech and increased government surveillance of the online accounts for a class of individuals, creating a dangerous legislative model for policing unpopular groups in the future," wrote staffer Rainey Reitman in a Sunday blog post. "While we share concerns about human trafficking and want to make sure the law is as effective as possible, we believe that censorship and increased surveillance of an entire class of people is not the right legislative fix for this troubling problem."

Francisco Lobaco, legislative director for the ACLU of California, agrees. Speaking earlier this year, he warned that "a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group." That, he suggested, would infringe on the First Amendment right to freedom of speech.

We asked supporters of Proposition 35 to respond to the EFF and ACLU's critique, but they have not responded to our e-mail. A "fact sheet" on the pro-35 website states that "the prevalence and anonymity of the internet has fueled the rapid growth of sex trafficking, making the trade of women and children easier than ever before."

EFF and the ACLU aren't the measure's only critics. A scathing editorial by the Los Angeles Times argued California's legislature has already been working on the human trafficking problem since 2005. The legislature passed a law that "has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged." Proposition 35 would "subvert that work," the paper said, calling Prop 35 "poorly drafted."

Also opposed is the Sacramento Bee, which worries that the online notification rules will "impose a costly and burdensome requirement on local law enforcement agencies" that will be forced to manage information submitted by sex offenders about their online identities.

But the proposal has won the support of the San Francisco Chronicle, which specifically praises the Internet-related provisions. "Once this information reaches the sex-offender registry, it's only a matter of time until a tech entrepreneur comes up with an app that would allow Californians to automatically block online entreaties from convicted sex offenders," the paper's editorial board predicts.

The supporters of Prop. 35 are likely to get their way. A poll taken in October by the California Business Roundtable found that 78 percent of likely voters support the measure. ..Source.. by Timothy B. Lee

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California's Prop 35: Targeting the Wrong People for the Wrong Reasons

11-4-2012 California:

California voters hold the power this Election Day to decide if many thousands of people convicted of prostitution-related offenses in their state must now register as sex offenders. These are their neighbors, their friends, their family—whether they know it or not—and many are women: trans- and cisgender women, poor and working class women, and disproportionately, they are women of color.

This attack on women already made vulnerable to violence and poverty is just one of the possible consequences of Proposition 35, a ballot initiative marketed to voters as a tough law to fight trafficking but is instead a “tough on crime” measure backed with millions of dollars from one influential donor, written by a community activist with little experience in the issue. If it passes? 

Advocates for survivors of trafficking, civil rights attorneys, and sex workers fear that rather than protect Californians, it will expose their communities to increased police surveillance, arrest, and the possibility of being labeled a "sex offender" for the rest of their lives.

Trafficking is a hot-button issue, where even defining what is meant by the term is contentious and deeply politicized—but at a minimum, it describes forced labor, where the force may be physical or psychological in nature. The International Labor Organization (ILO) estimates that nearly 22 million people may be involved in forced labor worldwide, the majority of which does not involve forced labor in the sex trade. In the United States, anti-trafficking law developed over the last ten years has advanced definitions of trafficking. In addition to Federal law, states have passed their own trafficking laws, which overlap with existing laws against forced labor, child labor, minor prostitution, or prostitution in general.

A good deal of advocacy around trafficking is concerned with proposing new laws, with several organizations—such as the Polaris Project and Shared Hope International—focused on introducing copycat legislation state-after-state, focused on increasing criminal penalties associated with trafficking and moving resources to law enforcement. There is little evidence that strengthening criminal penalties and relying primarily on law enforcement are strategies to end forced labor; in fact, advocates who work with survivors of trafficking, as well as people involved in the sex trade and sex worker rights' advocates, have documented the limitations and dangers of a “tough on crime” approach on trafficking. Still, the “tough on crime” approach has become dominant in what some anti-trafficking advocates now call “the war on trafficking.”

Treating Those In the Sex Trade as Sex Offenders

Proposition 35 adds to this dangerous mix: the overlapping matrix of laws concerning trafficking, the increasingly common conflation of commercial sex with trafficking found in these laws, and the concerns of rights' advocates. If passed, Prop 35 will create more severe criminal penalties for what it describes as "sexual exploitation"—a potentially far-reaching term that can include any kind of commercial sex, whether or not force, fraud or coercion was present.

Under Prop 35, anyone involved in the sex trade could potentially be viewed as being involved in trafficking, and could face all of the criminal penalties associated with this redefinition of who is involved in “trafficking,” which include fines of between $500,000 and $1 million and prison sentences ranging from five years to life. This is in addition to having to register as a sex offender, and surrender to lifelong internet monitoring: that is, turning over all of one's "internet identifiers," which includes "any electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussion, instant messaging, social networking, or similar Internet communication."

Advocates say Prop 35's conflation of the sex trade with trafficking will not only endanger people in the sex trade, but it will also fail survivors of trafficking. "I think trafficking is very much premised on issues of forced labor – be it forced work, be it forced sexual services," said Cindy Liou, a staff attorney at Asian Pacific Islander Legal Outreach, which works with hundreds of survivors of human trafficking.

"Even the division between forced labor and sex work feel extraneous," she explains. "Our forced labor cases may involve sexual assault, or we may have cases where a client isn't forced to prostitute herself for money, but is forced to commit sexual acts for noncommercial means – [under Prop 35] that would no longer be considered 'forced work.' That said, to confuse prostitution with trafficking is not appropriate, they are separate crimes, and they effect people in different ways. That's the whole point why they are different crimes."

If passed, Proposition 35 could also require anyone in California convicted of some prostitution-related offenses as far back as 1944 to also register as a sex offender and submit to lifelong internet monitoring. This is what drove Naomi Akers, the Executive Director of St. James Infirmary, an occupational health and safety clinic run by and for sex workers in San Francisco, to come out hard against the bill. In a Facebook image that spread quickly through sex worker communities online, Akers wrote "I have a previous conviction for 647a" – that is, lewd conduct, one of several common charges brought by California law enforcement against sex workers – "when I was a prostitute on the streets and if Prop 35 passes, I will be be required to register as a sex offender."

....continued.... by Melissa Gira Grant, RH Reality Check

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Voters to decide on 10 state propositions in Nov. 6 election

10-18-2012 California:

Proposition 35

Human Trafficking. Penalties.

Proposition 35 increases criminal penalties for human trafficking, including 15-years-to-life prison sentences and fines up to $1.5 million. Fines collected would be used for victim services and law enforcement.

A person who is convicted would be required to register as a sex offender. Sex offenders would be required to provide information regarding Internet access and identities they use in online activities. This measure would also require human trafficking training for police officers.

According to the Legislative Analyst, this measure would have a fiscal impact of increased costs to state and local governments, but also has the potential for additional revenues from criminal fines.

Proposition 36

Three Strikes Law. Repeat Felony Offenders. Penalties.

This proposition revises the three strikes law to impose life sentence only when a new felony conviction is serious or violent. If passed, it would re-sentence offenders currently serving life sentences if third strike conviction was not serious or violent and judge determines the new sentence does not pose a public safety risk.

Proposition 36 would continue to impose a life sentence if a third strike conviction was for certain non-serious, non-violent sex or drug offenses, or firearm possession, and it maintains a life sentence penalty for felons with non-serious, non-violent third strikes if prior convictions were for rape, murder, or child molestation.

State and county governments could face one-time costs of a few million dollars over the next couple of years for court activities related to this, but the state could save $70 to $90 million annually over the next couple of decades in prison and parole operations, according to an analysis. ..Source.. by Ramona Sentinel

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