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How a Law Aimed at Sex Offenders Could Feed into the Growing Surveillance State

A new precedent for chilling 1st Amendment rights.

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The state resolutely denied that the provision would chill speech and urged the judges to allow the provision to go forward, insisting that it was necessary for public safety.

ACLU attorney Michael Risher opened his argument on Tuesday by evoking the compelling image of a registrant who wishes to make an anonymous critical comment about his local police department on the online comment section of his local newspaper, “His speech will be chilled knowing that the police has his online identities down at the station.”

The state emphasized that registering the online identities of registrants is a necessary step to modernize registries currently maintained by local police departments. Drawing parallels between the virtual and physical worlds, attorneys explained that maintaining a database of the Internet identities of registrants would allow police to respond more efficiently in the case of a child abduction and ensured the court that the Internet information would remain confidential. Attorney Robert Wilson dismissed the claim that police could monitor Internet activity of registrants, explaining that police departments' resources are already spread too thin.

However, whether in protecting the public’s safety the law is justified in targeting “sex offenders”— a broad category that can include teens engaged in consensual sex, those convicted of public urination, and numerous others as stated in the plaintiffs' original complaint— has yet to be established.

Contrary to what the state suggests, there is little evidence that the Internet is used to facilitate sex crime or exploitation. According to a declaration submitted by David Finkelhor, the director of the Crimes against Children Research Center and professor of sociology at the University of New Hampshire, sex crimes against children facilitated by technology constitute only one percent of all sex crimes committed against children; and of those arrested for technology-facilitated crimes against youth, only four percent are registered sex offenders. Between 2000 and 2010, there was a 50 percent decline in all unwanted sexual solicitations on the Internet. These statistics were published by two studies, the Youth Internet Safety Survey and the National Juvenile Online Victimization, sponsored by the US Department of Justice Office of Juvenile Justice and Delinquent Prevention.

According to Hanni Fakhoury, nothing in the law limits police from only using the information they collect exclusively for responses to emergencies. “The law's stated intention is to prevent crime — so the only way to employ this information to that end is to conduct aggressive and proactive surveillance,” he told AlterNet.

Speaking to AlterNet, Daphne Phung, the executive director of Californians Against Slavery and the lead advocate for Proposition 35, defended the law as a negligible and fair burden on registrants, “You might think this is too broad, but convicted sex offenders have forfeited certain privileges in society, and this is one of these privileges. Just like when there are physical registration requirements and a sex offender knows that he or she is being monitored or there is capability of being monitored, it gives them that realization that they have to be more cautious.”

Sex offenders have been required to register with the police since 1947 in California. In 1997, California passed its version of Megan's Law, making registries public. Public registries are justified as providing people with the ability to protect themselves from convicted sex offenders. As such, registries are not considered punishment and have withstood ex post facto challenges. In 2003, the public registry sustained a constitutional challenge in the Supreme Court, which ruled that registries were not punitive measures, crucially allowing for seemingly endless new laws and restrictions to be introduced and retroactively apply to the entirety of the registry.

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