Will Sex Offenders be Required to Register Their Online Accounts? – Update on Prop. 35 Temporary Injunction

Proposition 35, the “Californians Against Sexual Exploitation Act” Initiative (CASE Act), was on the Nov. 6, 2012 California ballot as measure intended to deter and punish persons guilty of “human trafficking” – the kidnapping and coercion of human beings into forced labor or sexual slavery. The proposition was approved by 81 percent of voters, making it the most successful ballot initiative since California’s ballot process began in 1914. Proposition 35 requires sex offender email accounts and other online identifiers to be registered as part of sex offender registration and does all of the following:

• Increases prison terms for human traffickers.
• Requires convicted sex traffickers to register as sex offenders.
• Requires criminal fines from convicted human traffickers to pay for services to help victims.
• Mandates law enforcement training on human trafficking.
• Requires all registered sex offenders to disclose their internet accounts.

The day after the election, a federal judge issued a temporary restraining order on the provision that requires sex offenders to disclose their internet accounts to law enforcement. The judge acted in response to a class action lawsuit filed against the provision by the ACLU and the Electronic Frontier Foundation on behalf of two anonymous sex offenders to whom the provision applies. This injunction was extended on Jan. 11 and applies only to the provision that requires convicted sex offenders to provide internet identifiers. All other Proposition 35 provisions remain in effect. Proponents of Proposition 35 have appealed the injunction.

Sex Offender Email Accounts and Online Identifiers Required by CASE Act

California’s sex offender registration program is governed by California Penal Code section 290. The CASE Act added the following items to the list of information registrants must provide “upon release from incarceration, placement, commitment, or release on probation:”

1. A list of any and all Internet identifiers established or used by the person.
2. A list of any and all Internet service providers used by the person.
3. A statement in writing, signed by the person, acknowledging that the person is required to register and update the information in paragraphs [1] and [2] (above) (California Penal Code section 290.015(a)).

In addition, items (1) and (2) above must be reported as part of the annual registration process (California Penal Code section 290.012(a)).

“Internet identifier” is defined as “an electronic mail address, user name, screen name or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking or similar Internet communication” (California Penal Code section 290.024(b)).

The CASE Act also added a provision that requires registrants to notify law enforcement within 24 hours of any changes in the Internet information subject to registration. The new law requires written notice of the addition or change to a registrant’s account with an Internet service provider or adds or changes an Internet identifier (California Penal Code section 290.041(b)). This section further requires all registrants to “immediately provide” the required information to law enforcement upon the effective date of the Act.

Who Filed the Temporary Restraining Order Preventing Enforcement of this Provision of Proposition 35 and Why?

The ACLU of Northern California and the Electronic Frontier Foundation filed a federal class-action lawsuit to block implementation of unconstitutional provisions of Proposition 35 restricting the legal and constitutionally protected speech of all registered sex offenders in California.

Proposition 35 requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet – to turn over a list of all their Internet identifiers and service providers to law enforcement. This includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments.

Proposition 35’s online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech.

The lawsuit, filed in the U.S. District Court for the Northern District of California, asked for a temporary restraining order and an injunction. On Nov. 7, 2012, Judge Thelton Henderson granted the request for a temporary restraining order to block these provisions from taking effect. On Jan. 11, the court granted a preliminary injunction prohibiting enforcement of the Internet registration requirement until the court issues its final ruling.

The government has appealed the preliminary injunction to the United States Court of Appeal for the Ninth Circuit. On Sept. 10, the United States 9th Circuit Court of Appeal heard from all interested parties as to whether the temporary injunction was properly granted. It could take weeks or months for the 9th Circuit Court of Appeal to issue an opinion on this matter.

If I am a Registered Sex Offender How Does a Decision Affect Me?

If the court rules that the preliminary injunction ordered on Jan. 11 was properly granted, the injunction stays in place until the court issues a final ruling as to the constitutional claims raised by the ACLU and the Electronic Frontier Foundation on behalf of all California registrants.

If the court rules that the preliminary injunction was not properly granted, it is possible that the Internet identifier provision of Proposition 35 as it relates to all registered sex offenders will become effective immediately. If that happens, a registrant will be required to turn over all of his or her Internet identifier information, as described above, to law enforcement and update any additions or changes in writing within 24 hours.

What Should I Do if I am a Sex Offender and the Injunction is Lifted?

You must comply with the changes in California’s Sex Offender Registration Act as described by law according to the Californians Against Sexual Exploitation Act. Failure to do so is a failure to register crime, punishable as either a misdemeanor or felony, depending on your criminal history.

If you are convicted of a misdemeanor failure to register you face up to one year in county jail. If you are convicted of a felony failure to register you face up to three years in prison. The penalties will increase significantly if you have serious or violent crime (“strike”) on your record.

Contact Wallin & Klarich if you are Charged with Failure to Register as a Sex Offender

If you or a loved one must register as a sex offender and you fail to do so, you could be facing serious consequences. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending our clients facing failure to register charges. With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, we have an attorney near you wherever you are located.

Our attorneys will examine all of the evidence against you to determine if you’ve actually failed to register. We may be able to prove that your failure to register was not “willful.” If not, we will argue for a sentence of probation, helping you avoid jail or prison time. If you are facing a failure to register as a sex offender charge as a result of the implementation of all of the provisions of Proposition 35, you need to contact an attorney at Wallin & Klarich today.

Call us today at (877) 466-5245 for a free telephone consultation. We will get through this together.