Bluefield Daily Telegraph, Bluefield, WV

Washington Post Features

December 17, 2012

Sex offenders say California law infringes free speech

SAN FRANCISCO — California sex offenders shouldn't have to turn over their Twitter, Facebook or email account information to police because they have a right to anonymous online speech, privacy advocates told a judge.

The American Civil Liberties Union is seeking to keep a voter-approved law targeting human trafficking and sex exploitation from taking effect while its lawsuit aimed at invalidating portions of the measure is pending.

Convicted sex offenders have the same free speech rights as anyone, and the law's language is vague as to what registered sex offenders must disclose, making them "vulnerable" to retaliation by the police because of their speech on the Internet, ACLU lawyers said Monday at a hearing.

"There is no historical precedent of striking people of their First Amendment rights simply because of a crime they committed," Michael Risher, an ACLU lawyer, told U.S. District Judge Thelton Henderson in San Francisco. "They have the same First Amendment rights as anyone as soon as they finish serving their sentence."

California law enforcement officials say tracking Internet communications can prevent offenders from preying on children.

"Possession of this information may provide enough of a head start to save a victim's life," California Deputy Attorney General Robert Wilson said in a court filing. "Having Internet identifying information, however, does not permit access to, or monitoring of, private communications."

Proposition 35, approved by more than 80 percent of California voters last month and backed by former Facebook executive Chris Kelly, was set to take effect next year. Henderson put the measure on hold when the ACLU sued the day after it passed. The ACLU asked the judge today to keep an injunction in place while the case is being decided.

The law increases prison terms for sex offenders and adds reporting requirements for them. Registered sex offenders in California would be required under the law to report to law enforcement all Internet identifiers and online service providers they use. Registrants also would have to provide in writing any changes or additions to their Internet accounts and screen names.

Anonymous speech on the Internet can be restricted when the state has an important interest in doing so and the limitations are narrowly tailored, lawyers for the state said in court filings.

The ACLU said the new rules let police investigate offenders even if there's no crime committed. The law is so broad that law enforcement officers can snoop into online communications and require offenders to turn over login information for bank accounts. The ACLU and the Electronic Frontier Foundation sued on behalf of two sex offenders whose identities aren't disclosed in the lawsuit.

Sex offenders are already required to fill out a form after release from prison or parole reporting where they intend to live. Offenders must also register with the police department near their home and update the information every 30 days if they move. They must also report any name changes.

Before Proposition 35, sex offenders also had to supply the name and address of employers, fingerprints and a current photograph and license plate number. Starting last year, the California Justice Department's registration form included fields to report email addresses and screen names and social networks used.

Police are allowed to access the computer system that stores the information, and Internet identifying information is currently only available to the Justice Department.

 

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