State Attorney General Won't Fight Court's Block Of Law Curtailing Sex Offenders' First Amendment Rights

from the well,-at-least-not-directly dept

A California law requiring registered sex offenders to turn over a wealth of information related to their internet use to police will not go into effect, thanks to both a Ninth Circuit Court decision and the state's attorney general, who has decided not to petition the Supreme Court to examine the ruling.
Attorney General Kamala Harris says she will not ask the Supreme Court to let California enforce a voter-approved law that would require more than 70,000 sex offenders to disclose their Internet identities to police — a decision that apparently means the law will not take effect.

The law was part of Proposition 35, a ballot measure passed by an 81 percent voting majority in November 2012. The challenged provision would require registered sex offenders, who already must disclose their address to police, to also reveal their e-mail addresses, user names and Internet providers.
Other portions of the law, mostly dealing with increased sentences for sex trafficking crimes, will still be enforced. But the law's First Amendment implications -- rights even sex offenders are entitled to -- were too much for the courts to ignore. The law would not only clamp down on those currently serving time, but would also require the same disclosure from offenders who were no longer incarcerated, including those whose probation or parole had been completed.
The requirement “significantly burdens those individuals’ ability and willingness to speak on the Internet,” Judge Jay Bybee, one of the court’s most conservative members, said in the 3-0 ruling.
Of course, the law's sponsors, along with law enforcement, see this decision as turning the internet into a giant sex offender playground.
The measure’s chief sponsor, Chris Kelly, a former chief privacy officer for Facebook, criticized Harris’ decision.

“You cannot promote Internet safety by protecting the anonymity of sex offenders,” Kelly said in a statement. “This is clearly a case of misplaced priorities and indicates a blatant disrespect for California voters.”
Prioritizing dislike over guaranteed rights is "misplacing priorities." No disrespect towards California voters, but it's easy selling an idea that takes rights away from sex offenders. Very few people will vote to protect the rights of these criminals, even if it means statutory rapists, and anyone dragged under the wheels of the justice system by law enforcement's bumbling anti-sexting efforts, are treated identically to those who have committed more abhorrent crimes. The assumption that laws like these make is that the internet is only abused by sex offenders and never simply used in the same ways non-criminals use it.

The courts have upheld sex offenders' First Amendment rights, much as they would for others charged with lesser crimes. While the state AG may not be willing to petition the Supreme Court (which would presumably result in another "no" answer), the state's legislators will be going back to the drawing board to find some way to infringe on sex offenders' First Amendment rights that might escape the notice of the judicial branch.
[T]he attorney general will ask the Legislature to rewrite the disclosure requirement to meet the court’s objections.
Clearly, the state can't take no for an answer, even when it's been told twice that it can't limit the speech of certain people simply because they're universally loathed. Those fighting for these rights have the toughest battle. To guarantee rights for the greater population, they have to fight for those the greater population disdains. If they don't, mission creep is a distinct possibility. Not fighting when its hardest to defend ensures that in the future, it won't just be child molesters and rapists turning over their online identities to the police.

Filed Under: california, chris kelly, kamala harris, passwords, privacy, sex offenders, social media


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  • icon
    That Anonymous Coward (profile), 13 Feb 2015 @ 2:48pm

    "a former chief privacy officer for Facebook"
    Given Facebooks horrible record on privacy and digging deeper for more information, one could understand how they arrived at this ill-thought out law.

    reply to this | link to this | view in chronology ]

  • identicon
    NA, 13 Feb 2015 @ 3:14pm

    What's the difference

    Sex offenders in many other states already have to do this. What makes California sex offenders special?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2015 @ 3:21pm

      Re: What's the difference

      Because idiots like you do not know that it becomes a gateway drug for the government to do it to you and other criminals.

      If you are not in jail then you are either on probation or you are free.

      Just accidentally touching someones ass can get you 'legally' labeled a sex offender. If you are okay with someones rights being demolished for your particular taste of justice then you should not have any trouble with the rest of your being removed when someone invents a convincing argument.

      As much as it sucks... it is better for criminals to have their privacy than for people to have theirs 'removed' just in case.

      You are definitely a part of the problem that plagues this nation.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2015 @ 4:00pm

      Re: What's the difference

      So this was just in my local news:
      http://6abc.com/news/3-kids-busted-for-running-child-porn-account/516253/

      Do you really feel that under aged kids, even as stupid as these 3 are, should be under surveillance for the rest of their lives?

      reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 13 Feb 2015 @ 8:24pm

      Re: What's the difference

      What makes California sex offenders special?

      They live in a state which has a supreme court not made up of absolute morons.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2015 @ 8:29pm

      Re: What's the difference

      I think I hear an echo from the past saying "Whats the difference. Many other states are already allowing slavery. What makes Missouri blacks special?"

      Just pointing out the stupidity of the general concept here.

      reply to this | link to this | view in chronology ]

    • identicon
      JohnDoeUtah, 14 Feb 2015 @ 10:36am

      Re: What's the difference

      The only state to uphold it as constitutional is Utah, all others were someone challenged it in court, the state lost. California, Georgia, Nebraska.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Feb 2015 @ 8:02pm

        Re: Re: What's the difference

        I think this reply must be for some other post. Slavery is unconstitutional everywhere in the United States. Thank God.

        reply to this | link to this | view in chronology ]

  • icon
    yankinwaoz (profile), 13 Feb 2015 @ 3:18pm

    It would help if the legislators had the balls to decrease the scope of whom they label "sex offender". They should have limited this to pedophiles, which is what I, and I think the public, assumed it was meant to address.

    If you are convicted of taking a wizz on wall in an alley in the middle of the night, you are considered a sex offender.

    If you make the mistake of being a teenager and sleeping with a girl under 18, you are a sex offender.

    If you are a teenager, and a teen friend sends you a sext, or you send one, you are a sex offender.

    And so on and so on. The law makes no distinction between the monsters who really need to locked up for life, and ordinary people on the other end of the "sex offender" spectrum.

    reply to this | link to this | view in chronology ]

    • icon
      yankinwaoz (profile), 13 Feb 2015 @ 3:28pm

      Re:

      I would support this law being re-written for convicted pedophiles and see how that stands up to first-amendment scrutiny.

      reply to this | link to this | view in chronology ]

      • icon
        art guerrilla (profile), 13 Feb 2015 @ 3:44pm

        Re: Re:

        nope, not a good enough *excuse*: IF a person has served their time -FOR WHATEVER CRIME- they have fucking served their time, leave them the fuck alone...
        HOW is ANYONE -much less convicted felons/etc- supposed to really fit back into society and make a life for themselves if they are stigmatized forever ? ? ?
        well, they can hardly do it under the best of circumstances, but then making them wear this dead albatross around their necks is not going to make the rejoin society in any meaningful way, and thus PUSH THEM TO THE MARGINS AGAIN...
        WHY should they serve their time and toe the line when they are going to be EXTRA-legally punished and stigmatized ? ? ? no use even trying...

        reply to this | link to this | view in chronology ]

        • icon
          orbitalinsertion (profile), 13 Feb 2015 @ 4:09pm

          Re: Re: Re:

          Here's the counter argument to that, regardless as to whether I actually hold any following position:

          If a law requires it, it is not extra-legal.

          Actual pedophiles are... pedophiles (or ephebophiles, or habitual rapists), and they don't "get over it". The same way any character with a potentially dangerous problem rather has to stay in contact with the state on some sort of basis, what makes people with these particular criminal problems exempt?

          If a person with a problem like this wants to rejoin society in any meaningful way, they need to own their damn problem.

          .....

          What I do, in fact, believe is that there should be better integration for people with these problems or any ex-criminal into society, less bullshit from law enfarcement, and a dismantling of the prison industry. Specifically regarding sex offenders, the whole scheme seems upside down, where you do in fact get people rammed through the system and onto a registry for having a drunken public piss, people railroaded over extremely thin claims of child pornography or pedophilia, but actual rapes are dramatically under-investigated and victims are treated like shit. Bass-uckfing-ackwards.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 13 Feb 2015 @ 5:02pm

            Re: Re: Re: Re:

            If a law requires it, it is not extra-legal.


            Unless the law itself is illegal.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 14 Feb 2015 @ 12:23am

              Re: Re: Re: Re: Re:

              sadly some people think if something is made into law they have to follow it even if it is a very bad law.

              That could be considered a crime in another more free thinking country to even make said law

              reply to this | link to this | view in chronology ]

            • icon
              Seegras (profile), 14 Feb 2015 @ 1:37am

              Re: Re: Re: Re: Re:

              Sadly, most countries in the world have no way to ensure

              * That regulations don't contradict the law
              * That laws don't contradict the constitution

              It's usually left to the legislative bodies to ensure this. But they realized thy don't have to, hence some jerk can override laws with "National Security Letters", and hence some congress can override the constitution with some "PATRIOT act".

              And this is not US-specific, we have this problem in Switzerland as well (although we have some remedy, in the form that if we can gather enough signatures, we can force a public vote on a law. Not on regulations, though...).

              What's really needed is a court of law, where everyone can submit laws or regulations and say "I think this contradicts another law or the constitution", and logically everyone has "standing", because it obviously effects everyone. And the court must be able to enforce its judgements.

              This is somewhat implemented in Germany with the constitutional court ("Verfassungsgericht"), but I think that one only covers laws, and neither treaties nor regulations, and furthermore, it lacks any means to really enforce its decisions. So what they've got is a judgement against pre-emptive data retention, but hundreds of politicians still trying to write it into law.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous SuperCoward, 13 Feb 2015 @ 8:12pm

            Re: Re: Re: Re:

            I respect your arguments, and agree with the last paragraph, but I am not as sure about the rest. Let me respond, as you did, whether or not I hold such positions.
            Actual pedophiles...don't "get over it".
            I am not aware of any physical tests for "paedophilia". Is there a known genetic profile or pathophysiology associated with the behaviors? Is there more than 1 "type" of paedophile? What is really known? Official biopsychiatry, in unambiguous partnership big pharma, tends to represent that most-all deviant (and marketable) behaviors are incurable, genetic diseases, conveniently, best managed primarily with drug treatment. Again, what is really known? (genuine question)
            The same way any character with a potentially dangerous problem rather has to stay in contact with the state on some sort of basis, what makes people with these particular criminal problems exempt?
            What makes anyone exempt? Everyone is "potentially dangerous" in one way or another. There is also the question of what responsibilities the state is realistically capable of managing appropriately. Along with "terrorism", paedophillia is the standard issue invoked by authoritarian state actors when trying to curtail civil liberties and accumulate more power. Is it currently realistic to have faith in the state's ability to act in the public's interest in matters like this?
            If a person with a problem like this wants to rejoin society in any meaningful way, they need to own their damn problem.
            Well, yes and no. The problem is society's as well insofar as it is society that is offended and threatened. There is also the possibility that society (whatever that is) bares some responsibility for genesis of the condition, assuming it is not purely genetic. Then there is also the basic problem of many/most in the population probably still being in favor of castration, torture and/or execution for such offenders. We are not quite at the stage of seeing child rape as "an illness like any other". Insofar as "our culture" still believes in "evil", paedophiles are the archetype. How can someone begin to own their problem when it is still widely understood to be a demonological one, not a bio-psycho-social one? To be understood and serously addressed it needs to be understood objectively. Does the nexus of the problem really begin and end within the biopsychology/soul of these damned creatures, or might there be economic, social and cultural factors in the pathogenesis as well? (again, genuine question)
            ...............................
            .

            reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 15 Feb 2015 @ 10:36am

            Re: Re: Re: Re:

            Actual pedophiles are... pedophiles (or ephebophiles, or habitual rapists),

            "Pedophile" doesn't mean "rapist".

            reply to this | link to this | view in chronology ]

        • identicon
          Case, 14 Feb 2015 @ 6:24am

          Re: Re: Re:


          HOW is ANYONE -much less convicted felons/etc- supposed to really fit back into society and make a life for themselves if they are stigmatized forever ? ? ?
          well, they can hardly do it under the best of circumstances, but then making them wear this dead albatross around their necks is not going to make the rejoin society in any meaningful way, and thus PUSH THEM TO THE MARGINS AGAIN...


          Well that's the entire point: Nobody wants to reduce recidivism

          Lawmakers and judges are elected based on hysteric campaigns about pedophile terrorists hiding behind every corner and committing a home invasion every 0.2 seconds. Their entire schtick is that good, god-fearing Americans are besieged by criminal scum on all sides (which probably says more about the electorate than the elected) and therefore only the most drastic measures are appropriate. That these measures don't work isn't a problem, it's an added boon -- the siege mentality turns into a perpetual war

          So more and more people and up with ever more drastic sentences. And where do they serve those sentences? Even when the facility is not run by a for-profit corporation which considers falling recidivism rates a business risk, in many communities the local prison complex is what the auto industry was to Detroit. They'll certainly do their very best to put themselves out of business...

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2015 @ 5:08pm

      Re:

      Overlabeling of sex offenders is a problem, yes. However, even if this law was modified to only apply to rapists or pedophiles or whatever, it would still be illegal.

      Constant monitoring is only appropriate when someone is on probation or parole.

      reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 14 Feb 2015 @ 8:45pm

      Re: Registry

      In Georgia, there doesn't have to be any nexus to sex whatsoever to land you on the sex offender registry.

      A couple years ago, prosecutors there wanted to put a habitual thief on the sex offender registry. His lawyer, quite reasonably, objected, pointing out that stealing TVs and cash and jewelry has nothing to do with sex.

      The Georgia Supreme Court said that doesn't matter. The state can put you on the sex offender registry for anything crime it likes and you have no legal recourse.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2015 @ 3:23pm

    Clearly, the state can't take no for an answer
    I thought "No means 'no!'" and, in some contexts, "Only 'yes' can demonstrate consent."

    reply to this | link to this | view in chronology ]

  • icon
    GMacGuffin (profile), 13 Feb 2015 @ 3:32pm

    FTR: My wife and I were part of the 19% that voted no on this one. Look past the "sex offender" part and it was onerous to say the least.

    reply to this | link to this | view in chronology ]

    • icon
      Phoenix84 (profile), 13 Feb 2015 @ 5:34pm

      Re:

      I also voted against this.
      There are two issues I have with it:
      1) Abuse and restriction of free speech
      2) Abuse and restriction of people who have served their time and paid their dues to society.

      Seriously, if these people can't be trusted to be on the street again like normal people, why are they released to begin with? Even murderers who end up getting paroled don't have to deal with this.

      reply to this | link to this | view in chronology ]

  • icon
    CanadianByChoice (profile), 13 Feb 2015 @ 4:21pm

    A correction

    "mission creep is a distinct possibility"
    No, it's not. It is an absolute, garenteed certainty.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2015 @ 5:13pm

    State Attorney General Won't Fight Court's Block Of Law Curtailing Sex Offenders' First Amendment Rights


    Well, sort of. She appealed it all the way to the Ninth Circuit, so it's not like she didn't fight it.

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 14 Feb 2015 @ 8:53pm

      Re:

      > She appealed it all the way to the Ninth Circuit,
      > so it's not like she didn't fight it.

      "All the way"? You make it sound like a long and involved journey. It's just the next step up from the bottom. After the district (trial) court, you appeal to the circuit court of appeals, in this case the 9th Circuit.

      reply to this | link to this | view in chronology ]

  • icon
    seedeevee (profile), 13 Feb 2015 @ 6:41pm

    THAT fucking Jay Bybee!

    How could you not have at least added a little snark to that mention of that complete and utter asshole - pro-torture scumbag JAY BYBEE?

    I mean, shouldn't it be mandatory to mention "The Torture Memos" and Jay Bybee and every opportunity?

    reply to this | link to this | view in chronology ]

  • identicon
    David, 14 Feb 2015 @ 1:55am

    "disrespect for California voters."

    Kelly said in a statement. “This is clearly a case of misplaced priorities and indicates a blatant disrespect for California voters.”

    The U.S. is a Constitutional Republic. There are processes in place for amending the constitution. They have very high barriers and controls. "California voters" don't pass that threshold and get to make decisions about the constitution, and they are probably happy that neither do the Missouri voters. This is what allows U.S. citizens from all states to move through the U.S.A. without losing their constitutional rights.

    A politician who doesn't get this should be dismissed from a job for which he is obviously missing the necessary qualification and knowledge.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2015 @ 5:14am

    You can promote Internet safety by protecting the anonymity of everybody.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2015 @ 8:38am

    Only in Calipornia!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2015 @ 3:55pm

    They only need these laws to cover their asses for the fact that they are doing it anyway(monitoring online activity).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Feb 2015 @ 2:53am

    The law would have been unenforcable anyway. Someone who wanted to hide their Internet identities could just use a VPN to hide their activities, to hide their tracks.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Feb 2015 @ 6:47am

    With politics it is always about money and power. Terrorists and sex offenders are the levers used to gain footholds for power and money.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 15 Feb 2015 @ 10:39am

    Translation

    “You cannot promote Internet safety by protecting the anonymity of sex offenders,”

    You cannot make fearful people feel better by allowing people who have already served their sentence to enjoy the rights guaranteed by the US Constitution.

    reply to this | link to this | view in chronology ]

  • identicon
    JPH, 15 Feb 2015 @ 10:02pm

    CA AG office has many issues

    The problem with California is the State Bar and Laws passed their are considered "Mother Ship" and The Attorney General has failed to disclose to the public that the State of California is spending tax payer on Private Mediations and Arbitration at JAMS (Judicial Mediation and Arbitration Services). JAMS costs are 15-30 times per day higher than courthouse mediators. Her office has also refused to investigate complaints against JAMS for Fraud and False advertising (I have the proof) due to the close relationship with JAMS. The conduct of the CA AG's office is a violation of U.S. Code 241. She has also refused to file a lawsuit for the legislature sneaking into the back of a bill a clause giving "Arbitrator Immunity" to arbitrators, who handle arbitrations at companies like JAMS and ADR services. Courts can mandate case to arbitration depending on the contract language even though it violates "Constitutional Right for having a Jury of ones Peers". Take the employment case of photographer David Strick v. LA Times for copyright and failure to pay royalties. Retired Judge Peter D. Litchman served as the Arbitrator and Kelli Sager (DWT) represented the LA Times. This arbitration took place at JAMS in Downtown LA. By the time Strick filed his lawsuit The Statute of Limitations was expired (per news articles) his employment contract agreement with the LA Times required arbitration, the court moved it arbitration at JAMS. Based on the SOL being expired Judge Litchman never should have heard the case. He did anyways charging fees into the high five figures (estimated). Then Litchman issues a ruling in LA Times and Sager’s favor. It is rumored that Litchman and Sager failed to disclose their Chancery Club connection and prior dealings with each other, which is required to ensure a mediator or arbitrator remain "impartial". In the ruling Lichtman awards Sager and the LA Times all legal fees and expenses. On a case Lichtman never should have heard since news articles reported SOL expiration. Litchman knew he had immunity, that the court would enforce the settlement agreement, since it is ARBITRATION not mediation. This only 1 case out of thousands. The Attorney General doesn't care about peoples rights civil or constitutionally. Shame voters in California don't hold those in charge accountable.

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 17 Feb 2015 @ 5:21pm

    Why is there such a need to punish sex offenders extra?

    Putting aside the very real issues of people being jailed for minor "sex offenses", why does our society force sex offenders to go through this extra nonsense?

    How many people get arrested for robbery, are put in jail, serve their time, but they don't have to go on a "violent robber registry". How come they're not branded as robbers for the rest of their life, like sex offenders are?
    When was the last time a robber went door-to-door telling everyone in the neighborhood that he had just been released from prison for holding up a 7-11? Yet that's what sex offenders have to do.

    You might say, "Oh, but sex offenders will keep doing it so we need to keep track of them."
    Okay, then, prove that sex offenders have a higher recidivism rate than other violent crimes, including robbery.

    reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 18 Feb 2015 @ 6:13am

      Re: Why is there such a need to punish sex offenders extra?

      I struggle to sympathize with the dangerous sex offenders who prey on us and our kids. It's not about the rate, it's about the risk.

      And yes, I understand that over-labeling is a problem that can not be denied. Nonetheless, if one of those dangerous rapey types (not a sexting teen or a hapless drunk who peed up a wall late at night and was caught) was let loose in your neighborhood and you knew what he'd done would you let him babysit your kids? I think not.

      It's not about the rate, it's about the risk.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 18 Feb 2015 @ 6:23am

        Re: Re: Why is there such a need to punish sex offenders extra?

        would you let him babysit your kids? I think not.

        That argument is an appeal to emotion and straw man rolled up into one.

        reply to this | link to this | view in chronology ]


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