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

Last November, California voters overwhelmingly approved Proposition 35, the Californians Against Sexual Exploitation (CASE) Act. Like “tough on crime” anti-trafficking legislation around the country, Proposition 35 was presented as bolstering law enforcement's ability to fight human trafficking by introducing a bundle of new laws that, most prominently, increased penalties for those convicted of trafficking human labor, made prostitution a sex crime, and with less public attention, created a new requirement for registered sex offenders.

Under this last provision, all 73,000 registered sex offenders are required to submit their Internet service providers and "Internet identifiers” to their local police department within 24 hours of creating each new one, or face up to three years in jail. “Identifiers” include every name or username a registrant uses for any online activities he engages in, from posting a comment in a news outlet to shopping.

The day after Prop 35 was voted into law, the Electronic Frontier Foundation and the ACLU of Northern California filed a class action complaint on behalf of two anonymous registrants and the advocacy group, California Reform Sex Offender Laws, against the provision under question, claiming that it was unconstitutionally broad and would create a chilling effect on registrants’ free speech and associative rights. In response, the District Court immediately issued a temporary restraining order on Nov. 8, 2012, and eventually, a preliminary injunction on Jan. 11, 2013.

In his ruling, presiding judge Thelton E. Henderson agreed that the provision would chill the right of registrants to speak anonymously and stated that the “Court cannot simply presume the [government] will act in good faith and adhere to standards absent from the [statute's] face.”

Nearly a year later and that key, if less trumpeted, provision of the voter-initiated measure is still being battled in court. Meanwhile, since the complaint was first lodged, US citizens' cognizance of the ease with which the government abuses its access to their online activity has grown at a rapid rate — as has its disapproval. A recent poll conducted by the Associated Press-NORC Center for Public Affairs Research shows that the percentage of Americans who think the government does a good job at ensuring freedoms dropped from 60 percent in 2011 to 53 percent this year. Similarly, in 2011 40 percent thought the government did a good job protecting their privacy, but today that number is down to 34 percent. It would appear that Americans are increasingly less likely to “presume the government will act in good faith.”

This shifting context may have impact on the outcome of the provision of Proposition 35 that has yet to be implemented.

Judge Jay Bybee, the former Bush administration attorney who co-authored the Office of Legal Counsel's “torture memos,” sat on the three-judge panel in the Court of Appeals in San Francisco on Tuesday, Sept. 10 to hear arguments in the case. As state's attorney Robert Wilson struggled to articulate his argument that the provision would not have a chilling effect on registrants' speech, Bybee interrupted him to comment: “We're dealing in a post-Snowden era, where we're wondering whether all our online communications are being monitored by the NSA.”

Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, warned against reading too much into Bybee's comment, but nonetheless thought it telling. “It reflects an interesting dynamic: that even in a case that has nothing to do with NSA surveillance, when it comes to government interference or government collection of Internet data about particular data there are now going to be some questions that are asked.”

Fakhoury continued, “When the government is watching what you're doing, it chills speech. This is true in the NSA context and in this context.”

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.

Phung's brief supporting the new registration requirements stated: “Plaintiffs do not have an unconditional right to remain anonymous. Indeed, the plaintiffs have already lost a significant degree of anonymity as a result of their status as convicted sex offenders.”

There are signs that restricting registrants' access to the Internet, in particular social media, is a growing trend. North Carolina has banned registrants from social networks like Facebook and other chat rooms, and Pennsylvania is considering similar legislation. Earlier this year, a similar ban in Indiana was struck down by a court of appeals.

Fakhoury told AlterNet that EFF is keeping an eye on the various laws restricting registrants' access to the Internet that are cropping up around the country, but the case against the provision in Proposition 35 is the first of its ilk for EFF. “We don't like it when anyone online is required to register their online information—no matter who, whether it's registrants or children.”

In his order granting the preliminary injunction against the provision in January, Judge Henderson wrote, “Just as the Court is mindful ... that the government has a legitimate interest in protecting individuals from online sex offenses and human trafficking, it is equally mindful that 'anonymity is a shield from the tyranny of majority,' and that Plaintiffs enjoy no lesser right to anonymous speech simply because they are 'unpopular.’”

In its decision to uphold or overturn Henderson's preliminary injunction, the court of appeals will redraw the boundaries of registrants’ virtual freedoms, much as the borders to their geographic freedom have already been redrawn numerous times. But in a post-Snowden world, a decision that upholds the right to anonymity—no matter whose—would be a precious one, and it would be difficult to overstate its significance.