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The Internet and Proposition 35

Photo courtesy EFF.

Photo courtesy EFF.

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The constitutionality of a proposition to require registered sex offenders to disclose internet activities and identities is questioned.

On Tuesday, Nov. 6, voters in California approved Proposition 35, which ratcheted up penalties for those convicted of sex crimes, including human trafficking. This proposition includes a provision requiring sex offenders to disclose to law enforcement all of their internet connections and online identities.

On Wednesday, two of California’s 73,900 registered sex offenders filed a lawsuit challenging the constitutionality of these provisions.

Timothy B. Lee, writing for “Ars Technica,” notes that the plaintiffs argued that forcing them to expose their online identities would violate their First Amendment right to speak anonymously. The plaintiffs are being backed by the American Civil Liberties Union and the Electronic Frontier Foundation.

Those in the employment of the Electronic Frontier Foundation, in particular, voiced their disappointment with how unconstitutional these procedures seem to be.

“Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics,” says Hanni Fakhoury, an EFF attorney. “When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets.”

The lawsuit demands that a judge immediately block the proposition.

Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law would create a slippery slope for the same requirements to be applied to others.

Dravid Kravets, author of an article on “Wired” online news, notes that Michael Risher has much to say on the issue.

“He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony.”

U.S. District Judge Thelton Henderson issued a temporary restraining order on moving the proposition forward to the voting stage until there is a full hearing Nov. 20, saying there are “serious questions” of the constitutional rights, e.g. the right to privacy, to be considered.

He notes in the four-page order, issued Wednesday, that the state says it cannot enforce the provision until March, so there would be minimal harm issuing a stay.

The plaintiffs and their attorneys felt confident that the provision will not be passed.

“We do think we’ll prevail in the long run,” said ACLU staff attorney Michael Risher. “This law simply sweeps much too broadly, because it includes all 73,000 people who are required to register here in California.”

Dan Cohen, spokesman for the Yes on 35, said in a statement that they “are confident the court will follow precedent and uphold the new sex offender registration reporting requirements to protect vulnerable women and children from exploitation.”

While there were supporters for both sides of the issue, Proposition 35 passed on Nov. 6. According to the LA Times, the measure was also drafted to prevent re-victimization, prohibiting evidence of commercial sex acts by those were trafficked from being used against the victims in court.

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