CASRE has joined the California Attorney General’s Office to defend the constitutionality of Prop 35′s requirement that sex offenders register certain online accounts with law enforcement. This lawsuit does not impact other provisions of Prop 35, which are now law in California.
We are working to amend the sex offender statue to hopefully satisfy the concerns of the U.S. Ninth Circuit Court. We believe that the requirement for sex offenders to disclose their online accounts is no different from the requirement for them to provide their physical whereabouts.
Unfortunately, California Attorney General Harris’ Office has refused our request to bring this to the U.S. Supreme Court. We had a good chance of winning the case. The Ninth Circuit Court holds the trophy for the “Most Reserved” court, where the U.S. Supreme Court reversed 79.5% of cases from the Ninth Circuit. This is a strong indication that the Ninth Circuit (known for its extremist views) is out of sync with the Supreme Court. (Stephen Wermiel, “SCOTUS for law students: Scoring the circuits,” SCOTUS blog, June 22, 2014.) Due to the AG’s lost of interest in defending our sex offender law, we as citizens will pick up the fight – it’s the right thing regardless of politics.
“The provision of Prop 35 that requires registered sex offenders to provide Internet identifiers to law enforcement is narrowly tailored and is no different than the requirement in existing law – upheld by both the U.S. and California Supreme Courts – that offenders report their name, aliases, addresses, and other identifying information to law enforcement,” said Chris Kelly, the Safer California Foundation, former Chief Privacy Officer at Facebook.
Case: John Doe, et al. vs. Harris et al. Case No. 3:12-cv-05713-TEH
The day after the election, the ACLU and EFF filed a case with the United States District Court seeking an injunction against enforcement of the online registration provision of Prop 35. The ACLU and EFF, on behalf of two anonymous convicted sex offenders and their likes, claimed that this provision infringes on the sexual exploiters’ right to free speech because they would no longer have complete anonymity online. The U.S. District Court Judge in San Francisco granted their wish and on January 11, 2013 issued a preliminary injunction, temporarily halting the enforcement of this requirement. We are disappointed at this decision. We are working hand-in-hand with the Attorney General’s Office to appeal this decision.
Obviously, we have a very different view than the ACLU and EFF on this matter. We believe that victims and those at-risk have rights that are equally as important as the sexual exploiters’. Unfortunately, these facts are sometimes forgotten or overlooked because victims are often silenced by shame, terror and trauma. While the voices of the exploiters dominate. Regardless, CASRE will continue to fight hard for justice and the civil rights of survivors, victims and those not-yet victimized. Their freedom from exploitation is to be protected with the highest regard.
Below are the court documents that we and the Attorney General’s Office have filed detailing our positions. Overall, here are our positions on the online account registration provision of Prop 35:
1) Protecting the innocent and vulnerable against exploiters is a top priority in our society. Predators with a history of disregarding the rights and dignity of other people have forfeited certain privileges, including complete anonymity online and offline.
2) The online provision of the CASE Act is narrowly tailored. It only requires disclosure of certain internet accounts to law enforcement. It does not prohibit convicted sex offenders from any site or any speech.
- For instance, the CASE Act does not prohibit sex offenders from expressing any political or hateful views online.
- If they intend to commit a crime like visit a child pornography site, they will be apprehended like anyone else in the general public. This is existing law, and has nothing to do with the CASE Act.
3) The horrible scenarios and “chilling effect” conjured up by the ACLU and EFF (for convicted sex offenders) have absolutely no basis in reality.
- There is no record of these incidents during more than one year’s worth of collecting Internet information from registered sex offenders prior to the CASE Act.
- However, there are numerous, extensively documented cases of these predators using the internet to commit sex crimes.
- Laws should be based on facts and reality, not fictional wild claims.
Federal law already requires sex offenders to register their Internet identifiers. Without Prop 35, California is out of compliance with Federal requirements. States that do not comply with federal requirements lose 10% of their federal law enforcement funding as a consequence. See 42 U.S.C. § 16925(a).
We find the U.S. District Court Judge’s decision on the temporary injunction very disappointing. We believe that we will eventually prevail.
Why is this case significant to everyone?
An unfavorable outcome of this case would:
1) Greatly limit the ability of law enforcement to deter online predators and investigate sex crimes initiated or perpetrated online.
- Almost every case of sex trafficking today involves online social media. The exploiters are active online!
- According to the National Recidivism Study of Released Prisoners (2003) from the U.S. Department of Justice, released sex offenders were 4 times more likely to be rearrested for a sex crime than non-sex offenders released from State prisons.
2) Set a precedent that may put similar laws at the federal level and in other states in jeopardy.
3) Send the wrong message to sex offenders that the internet is free reign. The internet is already a “Wild West” for sexual exploiters. This will make it even worse.
It is a matter of justice, human decency, and civil rights that we win this case for the innocent and vulnerable in our society.
The Concept of Inconvenience
One of the arguments that the ACLU/EFF lawyers made was that it would be “inconvenient” for the convicted sex offenders to comply with this law. Yes, it is definitely an inconvenience for criminals with a history of sex crimes to register their online accounts and act with extra caution knowing that they are monitored online.
Tell this to the people whom they victimized, whose lives are altered by the abuse and trauma forever. Being a victim is a far greater “inconvenience,” and these individuals never asked for it. Tell this to the rest of us law-abiding citizens who have to take extra precautions, restrain our own freedom of speech online knowing that predators are lurking. The magnitude of “inconvenience” on victims and law-abiding members of our society are massively more than that of the sex offenders.
Our Court Documents (Latest to Oldest)
Here are our documents filed with the Court:
- Responses to ACLU/EFF’s opposition to our appeal.
- Appeal to the U.S. Court of Appeal of the Ninth Circuit:
- Opposition to the sex offenders’ request for preliminary injunction.
Court-issued temporary restraining order (TRO):
- U.S. District Court Judge Henderson grant of preliminary injunction (January 11, 2013)
- U.S. Districtu Court Judge Henderson grant of temporary restraining order (TRO) (November 2012)