Not in my digital backyard: Proposition 35 and California's sex offender username registry.

• Author: Moskowitz, Yonatan

TABLE OF CONTENTS INTRODUCTION I. THE CASE ACT IN CONTEXT II. PRESENTING THE CASE ACT TO THE VOTERS OF CALIFORNIA III. POLICY ANALYSIS OF THE CASE ACT A. The Chances of Getting Caught B. The Punishments for Getting Caught C. Activities that Do Not Require a Username D. Marginal Increase in Detecting Online Crime IV. A SLIPPERY-SLOPE CRITIQUE CONCLUSION INTRODUCTION

On November 6, 2012, over ten million Californians (81.3% of those voting on the issue) approved Proposition 35, the Californians Against Sexual Exploitation (CASE) Act. (1) The CASE Act is a paradigmatic example of the dangers of the initiative system. (2) A democratic majority--in a perfunctory manner--dismantled the rights of a small, unpopular minority in a sideshow buried behind the main thrust of the initiative. (3)

The CASE Act attempts to strengthen California's ability to punish human trafficking using a variety of legislative patches. (4) One of the Act's proposals restricts the ability of registered sex offenders to navigate the internet anonymously. (5) This proposal (found in sections eleven through thirteen of the CASE Act) is the subject of this Note. (6)

In this Note, I briefly analyze the history of the CASE Act and the past California sex offender laws it supplemented before describing the misleading way the Act appeared before California voters. I then analyze the sex offender registry sections, and conclude that the proposed requirement is a poorly drafted attempt to enact a questionable policy. The Act would be expensive to administer, and would (unconstitutionally) collect too much information from some individuals while not adequately dissuading the most harmful online activities.

1. THE CASE ACT IN CONTEXT

   The CASE Act was sponsored by Californians Against Slavery and The Safer California Foundation (created by Chris Kelly, former Facebook Chief Privacy Officer and 2010 candidate for California Attorney General). (7) Kelly alone donated over two million dollars to support the CASE Act. (8)

   Sections eleven through thirteen of the CASE Act amend California Penal Code sections 290.014(b) and 290.015(4)-(6) to require registered sex offenders to register their (1) internet service providers, and (2) c-mail addresses, usernames, screen-names, and other similar identifiers used on "forum discussions, ... chat rooms, ... instant messaging, social networking, or similar Internet communications. Registered sex offenders would have to update changes to their information within twenty-four hours. (10)

   The CASE Act is only the most recent in a long and convoluted series of changes to California's sex offender registry (the largest and oldest in the country). (11) Before this most recent proposal, California law required registered sex offenders to deliver to law enforcement such information as their proof of residency, place of employment, fingerprints, photograph, and license plate numbers. (12) In 2004, a Megan's Law bill in California required the state to publish some of the sex offender registry information from certain registered sex offenders on a publicly available website. (13) In 2006, California voters passed Proposition 83 (a Jessica's Law initiative), requiring all registered sex offenders convicted of a felony in California to submit to GPS tracking. (14)

   The CASE Act failed to meld with these existing laws or to adopt the best practices made apparent by their limitations. The Act makes no mention of the public reporting features from the Megan's Law bill, though it does make clear that this information will be shared with the Department of Justice. (15) Will this data be published through the process created by Megan's Law, or will it be reserved for only peace officers and law enforcement under California Penal Code section 290.021? Presumably this data will not--at least initially--be published through the process created by Megan's Law, but this is speculation not discernable from the text of the initiative. The CASE Act also does not distinguish among sex offenders based on their crime (as does Proposition 83). (16)

2. PRESENTING THE CASE ACT TO THE VOTERS OF CALIFORNIA

   Some Californians may have sought out this contextual information. But if California voters relied on the Official Voter information Guide (the guide provided by the California Sectary of State) for their information, they were treated to a perfunctory overview from pillars of the community and victims of horrendous crimes--of the benefits of the increased reporting requirements. They were not presented with good arguments (in fact, they were presented with no arguments) against the sex offender registry portions of the CASE Act.

   California allows advocates on either side of the initiative to place their names under their arguments for or against the initiative in the Complete Voter Information Guide. (17) The supporters of the CASE Act (with the righteous names of Californians Against Slavery and The Safer California Foundation) enlisted three human trafficking survivors, a California District Attorney, the president of KlaasKids, (18) and the president of the California Police Chiefs Association to endorse their arguments. (19) They briefly mentioned the sex offender registry requirements, claiming in broad language that they will "help protect our children and prevent human trafficking." (20)

   Of the four people presenting the opposition arguments...