California Ballot Measure Will Likely Ban Anonymous Speech If You Were Arrested For Urinating In Public

Free Speech

from the that's-not-constitutional dept

Here in California, of course, we have a number of (often excessively confusing) ballot measures every election season, and this year is no exception. I’ve spent a fair amount of time going through the various ballot measures myself in determining how I’d vote on them, and it quickly becomes clear that — as with so much in government — the devil is in the details, and the details are often hidden or purposely shoved aside. Take, for example, ballot measure 35. The “summary” version of it sounds like something that many would support:

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

Human trafficking is certainly a big concern. However, there are a lot of details here. That “disclose Internet activities and identities” part is already a concern. And, many of us have heard the horror stories of how states put all sorts of people on “sex offenders” lists for things that aren’t sex offenses — things like urinating in public or (perhaps slightly more controversial) two teenagers engaging in consensual sexual activity.

It turns out that the internet stuff in this bill is massively problematic. Unfortunately, some “voter guides” completely ignore the issue. A popular California voting guide from KCET barely mentions the internet part of the measure, and positions it as something of a no-brainer to support. But, if you look at the details, they’re pretty scary:

Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used. There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior. For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.

The LA Times posted a forceful editorial against the provision, noting that it’s all about punching emotional buttons rather than a legitimate law enforcement issue:

It punches most of the usual emotional buttons, appealing to voters’ sympathy for victims and disgust with perpetrators who are the closest thing the United States has to modern-day slavers. And in calling for longer sentences, it follows the same assumptions as other tough-on-crime initiatives born in fear or anger rather than thought: Punish people more severely and they will offend less. Merely by being on the ballot, the measure implies that the Legislature would not or could not deal with the issue.

That’s false. Lawmakers became convinced in 2005 that state and federal laws dealing with kidnapping, extortion and other crimes were not keeping up with human trafficking, and they adopted a law that was painstakingly crafted with input from law enforcement, victims, advocates and others. That law has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged. Proposition 35 would subvert that work and substitute a web of poorly drafted laws that expand the sex offender registry, divert resources from victims and, most important, could not be adjusted to keep up with changing circumstances without yet another ballot measure.

The ACLU has stepped up and tried to remind people that it’s likely unconstitutional in that it removes the right to speak anonymously over issues completely unrelated to any crime:

The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.

Unfortunately, because this is an emotional issue, it’s likely going to pass, and then there’s going to be a huge mess as it’s put into practice, followed almost certainly by lawsuits challenging the constitutionality of the provision. Emotionally driven issues tend to make bad law, and it seems like this is no exception.

Filed Under: anonymity, california, free speech, human trafficking, sex offenders, social media