BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 57
                                                                  Page  1

          Date of Hearing:   July 5, 2011
          Counsel:        Milena Nelson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 57 (Runner) - As Amended:  April 12, 2011


           SUMMARY  :   Requires any person required to register as a sex 
          offender, as specified, to provide law enforcement all of his or 
          her online names and addresses, electronic mail (e-mail) 
          addresses, and instant messaging (IM) user names for all or his 
          or her social networking Web site accounts at the time of 
          original registration, or within 30 days of creating an account. 
           Specifically,  this bill  :   

          1)Defines "social networking internet Web site" as an Internet 
            Web site that allows individuals, including juveniles to 
            communicate with acquaintances and strangers; construct a 
            public or semipublic profile within a bounded system; 
            articulate a list of other users or members with whom they 
            share a connection; and view and transverse their list of 
            connections and those lists made by others within the system.  


          2)States that violation of this section is a misdemeanor.  

           EXISTING LAW  :

          1)Requires persons convicted of specified sex offenses to 
            register, or reregister if the person has been previously 
            registered, upon release from incarceration, placement, 
            commitment, or release on probation.  States that the 
            registration shall consist of all of the following ÝPenal Code 
            Section 290.015(a)]:

             a)   A statement signed in writing by the person, giving 
               information as shall be required by Department of Justice 
               (DOJ) and giving the name and address of the person's 
               employer, and the address of the person's place of 
               employment, if different from the employer's main address;

             b)   Fingerprints and a current photograph taken by the 








                                                                  SB 57
                                                                  Page  2

               registering official;

             c)   The license plate number of any vehicle owned by, 
               regularly driven by or registered in the name of the 
               registrant;

             d)   Notice to the person that he or she may have a duty to 
               register in any other state where he or she may relocate; 
               and,

             e)   Copies of adequate proof of residence, such as a 
               California driver's license or identification card, recent 
               rent or utility receipt or any other information that the 
               registering official believes is reliable.

          1)States every person who is required to register, as specified, 
            who is living as a transient shall be required to register for 
            the rest of his or her life as follows:

             a)   He or she shall register, or reregister if the person 
               has previously registered, within five working days from 
               release from incarceration, placement or commitment, or 
               release on probation, pursuant to Penal Code Section 
               290(b), except that if the person previously registered as 
               a transient less than 30 days from the date of his or her 
               release from incarceration, he or she does not need to 
               reregister as a transient until his or her next required 
               30-day update of registration.  If a transient is not 
               physically present in any one jurisdiction for five 
               consecutive working days, he or she shall register in the 
               jurisdiction in which he or she is physically present on 
               the fifth working day following release, as specified.  
               Beginning on or before the 30th day following initial 
               registration upon release, a transient shall reregister no 
               less than once every 30 days thereafter.  A transient shall 
               register with the chief of police of the city in which he 
               or she is physically present within that 30-day period, or 
               the sheriff of the county if he or she is physically 
               present in an unincorporated area or city that has no 
               police department, and additionally, with the chief of 
               police of a campus of the University of California, the 
               California State University, or community college if he or 
               she is physically present upon the campus or in any of its 
               facilities.  A transient shall reregister no less than once 
               every 30 days regardless of the length of time he or she 








                                                                  SB 57
                                                                  Page  3

               has been physically present in the particular jurisdiction 
               in which he or she reregisters.  If a transient fails to 
               reregister within any 30-day period, he or she may be 
               prosecuted in any jurisdiction in which he or she is 
               physically present.

             b)   A transient who moves to a residence shall have five 
               working days within which to register at that address, in 
               accordance with Penal Code Section 290(b).  A person 
               registered at a residence address in accordance with that 
               provision who becomes transient shall have five working 
               days within which to reregister as a transient in 
               accordance with existing law.

             c)   Beginning on his or her first birthday following 
               registration, a transient shall register annually, within 
               five working days of his or her birthday, to update his or 
               her registration with the entities described in existing 
               law.  A transient shall register in whichever jurisdiction 
               he or she is physically present on that date. At the 30-day 
               updates and the annual update, a transient shall provide 
               current information as required on the DOJ annual update 
               form, including the information. 

             d)   A transient shall, upon registration and 
               re-registration, provide current information as required on 
               the DOJ registration forms, and shall also list the places 
               where he or she sleeps, eats, works, frequents, and engages 
               in leisure activities.  If a transient changes or adds to 
               the places listed on the form during the 30-day period, he 
               or she does not need to report the new place or places 
               until the next required re-registration.  ÝPenal Code 
               Section 290.011(a) to (d).]

          2)Provides that willful violation of any part of the 
            registration requirements constitutes a misdemeanor if the 
            offense requiring registration was a misdemeanor, and 
            constitutes a felony of the offense requiring registration was 
            a felony or if the person has a prior conviction of failing to 
            register.  ÝPenal Code Section 290.018(a)(b).]

          3)Provides that within three days thereafter, the registering 
            law enforcement agency or agencies shall forward the 
            statement, fingerprints, photograph, and vehicle license plate 
            number, if any, to the DOJ.  ÝPenal Code Section 290.015(b).]








                                                                  SB 57
                                                                  Page  4


          4)States that a misdemeanor failure to register shall be 
            punishable by imprisonment in a county jail not exceeding one 
            year, and a felony failure to register shall be punishable in 
            the state prison for 16 months, 2 or 3 years.  ÝPenal Code 
            Section 290.018(a)(b).]


           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "While social 
            networking sites are a great way for people to connect, they 
            can also create a virtual shopping mall for sex offenders on 
            the prowl.  SB 57 will require sex offenders like John Gardner 
            to register all their online addresses with law enforcement.  
            Online address registration will cause registered sex 
            offenders to think before engaging in predatory online 
            practices and will give local law enforcement a tool to 
            investigate suspected misconduct. 

          "With passage of this bill, California would follow New York's 
            lead in enacting such a law.  New York became the first when 
            it passed a similar bill in 2008, known as the Electronic 
            Securing and Targeting of Online Predators Act (e-STOP), which 
            was sponsored by New York Governor, then Attorney General, 
            Andrew Cuomo.SB 57 is consistent with the federal KIDS Act of 
            2008, which requires sex offenders to provide email addresses 
            as part of the state regulations.

          "Under e-STOP, convicted sex offenders must register all of 
            their e-mail addresses, screen names, and other Internet 
            identifiers with law enforcement.  On February 2, 2010, Cuomo 
            declared that more than 4,336 registered New York sex 
            offenders had been purged from major social network websites 
            since the bill passed, including a man convicted of assaulting 
            a 14-year-old boy and another man who raped a 2-year-old girl. 


          "SB 57, California's version of e-STOP, will allow law 
            enforcement to better protect children from sexual predators 
            who establish online addresses in order to develop 
            'cyber-relationships' with young people.  As John Walsh, 
            co-founder of the National Center for Missing and Exploited 








                                                                  SB 57
                                                                  Page  5

            Children and host of America's Most Wanted, stated in a press 
            release issued at the time of the New York law's passage, 
            'Social networking websites have become the private hunting 
            grounds for sexual predators and they use the safety and 
            anonymity of the internet to groom their next victims.'  It's 
            time that California's laws catch up with the social 
            networking trend."

           2)First Amendment "Chilling Effect"  :  The First Amendment to the 
            United States Constitution guarantees to all citizens the 
            right to freedom of speech and association.  The pertinent 
            Clause of the First Amendment, applied to the States through 
            the Fourteenth amendment.  ÝThornhill v. Alabama, 310 U.S. 88, 
            95 (1940) provides that "Congress shall make no law?abridging 
            the freedom of speech . . . ."  ÝUnited States Constitution. 
            Amend. I).]  Generally, sex offenders who have completed their 
            terms of imprisonment and completed parole has all of the 
            other rights and benefits accorded to all citizens.  

           In Reno v. ACLU (hereinafter Reno) (1997) 521 U.S. 844, the 
            Supreme Court stated that "The Internet is an international 
            network of interconnected computers . . . enabÝling] tens of 
            millions of people to communicate with one another and to 
            access vast amounts of information from around the world.  The 
            Internet is a unique and wholly new medium of worldwide human 
            communication."  (Id. at 850.)

          "Anyone with access to the Internet may take advantage of a wide 
            variety of communication and information retrieval methods.  
            These methods are constantly evolving and difficult to 
            categorize precisely.  ÝA]ll of these methods can be used to 
            transmit text; most can transmit sound, pictures and moving 
            video images.  Taken together, these tools constitute a unique 
            medium - known to its members as cyberspace - located in no 
            particular geographical location but available to anyone, 
            anywhere in the world, with access to the Internet."

          Following its expansive discussion of the many benefits of the 
            Internet, the Court turned its attention to First Amendment 
            issues, finding that the "CDA ÝCommunications Decency Act] is 
            a content-based regulation of speech.  The vagueness of such a 
            regulation raises special First Amendment concerns because of 
            its obvious chilling effect on free speech," citing Gentile v. 
            State Bar of Nevada, 501 U.S. 1030, 1048-1051 (1991).  The 
            Court further stated that the CDA, as a criminal statute, "may 








                                                                  SB 57
                                                                  Page  6

            well cause speakers to remain silent rather than communicate 
            even arguably unlawful words, ideas, and images."  As a 
            practical matter, this increased deterrent effect, coupled 
            with the risk of discriminatory enforcement of vague 
            regulations, poses greater First Amendment concerns than those 
            implicated by the civil regulations reviewed in Denver Area 
            Educational Telecommunications Consortium, Inc. v. F.C.C., 518 
            U.S. 727 (1996).

          "Given the vague contours of the statute, it unquestionably 
            silences some speakers whose messages would be entitled to 
            constitutional protection.  The CDA's burden on protected 
            speech cannot be justified if it could be avoided by a more 
            carefully drafted statute.  We are persuaded that the CDA 
            lacks the precision that the First Amendment requires when a 
            statute regulates the content of speech.  In order to deny 
            minors access to potentially harmful speech, the CDA 
            effectively suppresses a large amount of speech that adults 
            have a constitutional right to receive and to address to one 
            another.  That burden on adult speech is unacceptable if less 
            restrictive alternatives would be at least as effective in 
            achieving the legitimate purpose that the statute was enacted 
            to serve."  (Id. at 874.)  

          The Court further held that the Government may not reduce the 
            adult population to only what is fit for children.  
            "Regardless of the strength of the government's interest in 
            protecting children, the level of discourse reaching a mailbox 
            simply cannot be limited to that which would be suitable for a 
            sandbox," citing Bolger v. Youngs Drug Products Corp., 463 
            U.S. 60, 74-75 (1983).

          The Court concluded, "As a matter of constitutional tradition, 
            in the absence of evidence to the contrary, we presume that 
            governmental regulation of the content of speech is more 
            likely to interfere with the free exchange of ideas than to 
            encourage it.  The interest in encouraging freedom of 
            expression in a democratic society outweighs any theoretical 
            but unproven benefit of censorship."  (Id at page 885.)

          The United States Supreme Court reaffirmed the principles 
            recited by Reno v. ACLU, supra, in Ashcroft v. ACLU, 542 U.S. 
            656 (2004), when it stated, "The purpose Ýof the strict 
            scrutiny test] is to ensure that speech is restricted no 
            further than necessary to achieve the goal, for it is 








                                                                  SB 57
                                                                  Page  7

            important to assure that legitimate speech is not chilled or 
            punished.  For that reason, the test does not begin with the 
            status quo of existing regulations, then ask whether the 
            challenged restriction has some additional ability to achieve 
            Congress' legitimate interest.  Any restriction on speech 
            could be justified under that analysis.  Instead, the court 
            should ask whether the challenged regulation is the least 
            restrictive means among available, effective alternatives."  
            (Id.)

          In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002), 
            the Supreme Court further stated that "the mere tendency of 
            speech to encourage unlawful acts is not a sufficient reason 
            for banning it.  The government 'cannot constitutionally 
            premise legislation on the desirability of controlling a 
            person's private thoughts,' citing Stanley v. Georgia, 394 
            U.S. 557, 566 (1969.)  First amendment freedoms are most in 
            danger when the government seeks to control thought or to 
            justify its laws for that impermissible end.  The right to 
            think is the beginning of freedom, and speech must be 
            protected from the government because speech is the beginning 
            of thought.

          "ÝT]he government may not prohibit speech because it increases 
            the chances that an unlawful act will be committed at some 
            indefinite future time," Ashcroft v. The Free Speech 
            Coalition  ,  supra, at 253, citing Hess v. Indiana, 414 U.S. 
            105, 108 (1973).  "ÝT]he government has shown no more than a 
            remote connection between speech that might encourage thoughts 
            or impulses and any resulting child abuse.  Without a 
            significantly stronger, more direct connection, the Government 
            may not prohibit speech on the ground that it may encourage 
            pedophiles to engage in illegal conduct."  (Ashcroft, supra, 
            at 253 - 254.)  

           3)Sex Offense Registration  :  Existing law specifies that if a 
            person has been convicted of a sexually based offense, he or 
            she is required to register as a sex offender.  ÝPenal Code 
            Section 290(c) (includes all offenses where registration is 
            required if committed on or after July 1, 1944).]  The purpose 
            of sex offender registration is to provide law enforcement 
            with a list of offenders who may be likely suspects in the 
            event of another sex offense.  

          "The purpose of ÝPenal Code Section 290] is to assure that 








                                                                  SB 57
                                                                  Page  8

            persons convicted of the crimes enumerated therein shall be 
            readily available for police surveillance at all times because 
            the Legislature deemed them likely to commit similar offenses 
            in the future.  The statute is thus regulatory in nature, 
            intended to accomplish the government's objective by mandating 
            certain affirmative acts."  ÝIn re Leon Casey Alva (2004) 33 
            Cal. 4th 254, 264.]  Unlike other states, California requires 
            lifetime registration for all listed sex offenses.  ÝPenal 
            Code Section 290(b).]  

          The registration statute does not distinguish crimes based on 
            severity and instead requires all persons convicted of a 
            listed crime must register annually within five days of his or 
            her birthday and for the rest of his or her life.  ÝPenal Code 
            Section 290.012(a).]  Although most registerable offenses are 
            felonies, there some alternate felony/misdemeanor penalties 
            and a few straight misdemeanors.  ÝSee Penal Code Section 
            243.4 (sexual battery); Penal Code Section 266c (obtaining 
            sexual consent by fraud); Penal Code Section 311.1, 311.2(c), 
            311.4, 311.11 (child pornography); Penal Code Section 647.6 
            (annoying or molesting a child); and, Penal Code Section 
            314(1)(2) (indecent exposure).]  

           4)Penalties for Failure to Register  :  Existing law states any 
            person who is required to register as a sex offender based on 
            a misdemeanor conviction or juvenile adjudication that 
            willfully violates any requirement of registration is guilty 
            of misdemeanor punishable by up to one year in the county 
            jail.  ÝPenal Code Section 290.018(a).]  If registration is 
            based on a conviction for a felony and a person violates any 
            requirement of registration, he or she is guilty of a felony 
            and shall be sentenced to state prison for a term of 16 
            months, two or three years, except as otherwise specified.  
            ÝPenal Code Section 290.018(b).]  This bill expands the 
            current registration requirement to include all online names 
            and addresses, email addresses, and instant messaging user 
            names for all or his or her social networking Web sites 
            accounts. 

            Penal Code Section 290(a) states that Penal Code Sections 290 
            to 290.023 inclusive shall comprise the Sex Offender 
            Registration Act.  This bill places a new section within those 
            sections and, therefore, be part of the Sex Offender 
            Registration Act.  The language of this bill states that 
            violation of its requirements would be a misdemeanor, but 








                                                                  SB 57
                                                                  Page  9

            Penal Code Section 290.018 states that violation of the Sex 
            Offender Registration Act is a misdemeanor if the underlying 
            conviction is a misdemeanor, or a felony if the underlying 
            conviction is a felony.  It is unclear if the language of this 
            bill is sufficient to remove it from the punishment provisions 
            in Penal Code Section 290.018 and may have implications for 
            "Three Strikes" and prison overcrowding, as discussed below.  
            Additionally, as explained below, placing an increasing number 
            of penalties on persons required to register may put the 
            entire registration scheme in constitutional jeopardy.
             
           5)Limits for Persons on Probation or Parole  :  Several states 
            have placed Internet restrictions or prohibitions on sex 
            offenders on probation or parole.  Although such restrictions 
            must have a clear nexus or be reasonably related to the 
            offense, Internet restrictions for probationers and parolees 
            have withstood constitutional challenge.  ÝSee U.S. vs. 
            Thielemann (3rd Cir. 2009) 575 F.3rd 265; U.S. vs. Paul (5th 
            Cir. 2001) 274 F. 3rd 155; U.S. vs. Granger (4th Cir. 2004) 
            117 F. App 247.]  

          California law has long held that probationers and parolees have 
            fewer constitutional rights than ordinary people, although 
            conditions of probation or parole must be "reasonable since 
            parolees and probationers retain constitutional protections 
            against arbitrary and oppressive official action."  ÝIn re 
            Ramon Stevens (2004) 119 Cal.App.4th 1228, 1233; Morrissey vs. 
            Brewer (1972) 408 U.S. 471, 477.]  The Ninth Circuit in U.S. 
            vs. Reardon affirmed the imposition of a probation condition 
            prohibiting the defendant from possessing or using a computer 
            with access to any online service without prior approval of 
            the probation officer finding that the restriction was 
            reasonably related to the offense of shipping child 
            pornography across state lines.  ÝU.S. vs. Rearden (9th Cir. 
            2003) 349 F.3rd 608.] 

          However, the California Court of Appeals rejected an Internet 
            ban on a paroled child molester because the restriction was 
            not so narrowly tailored as to avoid suppression of protected 
            speech.  

          The Court held, "Here, BPT ÝBoard of Prison Terms, now Board of 
            Parole Hearings] was legitimately concerned that a released 
            child molester's unfettered access to a computer might result 
            in criminal conduct.  In contrast to cases such as Crandon, 








                                                                  SB 57
                                                                  Page  10

            Paul and Rearden, the broad prohibition on use of the computer 
            and Internet bore no relation to Stevens's conviction for 
            child molestation and imposed a greater restriction of his 
            rights than was reasonably necessary to accomplish the state's 
            legitimate goal.

          "BPT, concerned about Stevens's illegitimate use of the 
            Internet, sought to prevent his having any access to 
            cyberspace.  One can understand the dilemma BPT faced.  
                                                                                     ÝC]yberspace defies boundaries; it offers unlimited access.  
            'ÝT]he openness of this architecture means this:  That there 
            is no "natural" or simple or "automatic" way to keep people 
            out because there are no natural or real borders that close 
            off access to those who should not have access.'  Ýinternal 
            citation omitted.]

          "But BPT's task was less daunting than it appeared to be.  A 
            focused restriction could be enforced by unannounced 
            inspections of material stored on Stevens's hard drive or his 
            removable disks Ýinternal citation omitted].  BPT might also 
            have explored the implementation of monitoring software which 
            automatically generates an e-mail to the parole officer should 
            the parolee engage in an illegal use of his computer.  ÝSee, 
            e.g., McKay, Guardrails on the Information Superhighway: 
            Supervising Computer Use of the Adjudicated Sex Offender 
            (2003) 106 W.Va. L. Rev. 203, 242.]  Finally, BPT can verify 
            Stevens's Internet usage with a sting 
            operation-surreptitiously inviting him to respond to 
            government-placed Internet ads for pornography Ýinternal 
            citation omitted]. 

          "BPT cannot, of course, monitor every aspect of Stevens's 
            behavior.  Other than a prohibition on his use of a computer 
            to access pornographic sites, BPT would most likely be unable 
            to monitor Stevens's use of someone else's computer.  But like 
            any other parolee, Stevens's unauthorized use of any computer 
            would be at his own peril. 

          "As observed by Sir William S. Gilbert, 'a felon's capacity for 
            innocent enjoyment is just as great as any honest man's.'  
            (Gilbert & Sullivan, Pirates of Penzance (1880) act II.)  
            Rehabilitation of a felon entails integration into society 
            where he or she can be self-supporting.  In appropriate cases, 
            access to the Internet assists parolees to become law-abiding 
            citizens."  ÝIn re Stevens (2004) 119 Cal.App.4th 1228, 1239.]








                                                                  SB 57
                                                                  Page  11


           6)Other States  :  Several other states and the Federal Government 
            have enacted legislation aimed at regulating sex offender use 
            of the Internet or social networking sites.  In particular, 
            New York enacted requirements that a registered sex offender 
            provide the names of any Internet accounts or screen names 
            used by the offender.  ÝNYC CLS Correc. Section 168-b(1)(a).]  
            New York also required the relevant state agency to provide 
            any authorized Internet entity with a list of Internet 
            identifiers for all registered sex offenders.  Internet 
            entities may prescreen a new member or remove any existing 
            members who are registered as sex offenders.  ÝNYC CLS Correc. 
            Section 168-b(A).]  New York also creates a mandatory 
            condition of probation for a sex offender who commits an 
            offense against a person under the age of 18 and designated a 
            "level three" sex offender (meaning a high risk of 
            re-offense).  ÝNYC CLS Correc. Section 65.10(4a); See also NYC 
            CLS Correc. 168-l(c).]  

          Florida, Nevada and New Jersey restricted Internet access only 
            for persons on probation or parole.  Nevada states that "if a 
            defendant is convicted of a sexual offense and the court 
            grants probation or suspends the sentence, the court shall . . 
            . order as a condition of probation or suspension of sentence 
            that the defendant . . . not possess any electronic device 
            capable of accessing the Internet and not access the Internet 
            through any such device or any other means, unless possession 
            of such device or access is approved by the parole and 
            probation officer assigned to the defendant".  ÝNev. Rev. 
            Stat. Ann. Section 176A.410(1)(g); See also Brant, Comment:  
            Sentencing "Cyber Sex Offenders":  Individual Offenders 
            Require Individualized Conditions When Courts Restrict Their 
            Computer Use and Internet Access (hereinafter Brant), 58 Cath. 
            U.L. Rev. 779, 796.] 

          Florida law provides that a court must impose a prohibition on 
            accessing the Internet or other computer services until the 
            offender's sex offender treatment program, after a risk 
            assessment is completed, approves and implements a safety plan 
            for the offender's accessing or using the Internet or other 
            computer services.  ÝFLA. Stat. Ann. Section 948.30(1)(h).] 

          New Jersey's sex offender registration law states, "A person 
            required to register under this act shall provide the 
            appropriate law enforcement agency with information as to 








                                                                  SB 57
                                                                  Page  12

            whether the person has routine access to or use of a computer 
            or any other device with Internet capability.  A person who 
            fails to notify the appropriate law enforcement agency of such 
            information or of a change in the person's access to or use of 
            a computer or other device with Internet capability or who 
            provides false information concerning the person's access to 
            or use of a computer or any other device with Internet 
            capability is guilty of a crime of the fourth degree."  ÝNJ 
            Stat. Ann. Section 2C: 7-2(d)(2); Brant at 796.]

          Federal law requires all sex offenders to provide Internet 
            identifiers, such as e-mail addresses and designations to the 
            National Sex Offender Registry.  (42 U.S.C. 16915a.)  "While 
            the federal laws that require information sharing and 
            reporting by Web site operators do not affect offenders as 
            severely as those state laws that entirely prohibit computer 
            or Internet access, all of these laws undoubtedly demonstrate 
            an ever-increasing trend by federal and state legislatures in 
            tightening the rope on convicted sex offenders."  (Brant at 
            796.)

          "However, if the new laws interfere with a judge's discretion to 
            evaluate release conditions, the question becomes whether a 
            legislature should set mandatory conditions for offenders, or 
            whether courts should be free to make case-by-case 
            determinations based upon the totality of the circumstances."  
            (Brant at 798.)

          This statute appears to be, at least in part, modeled on the New 
            York statute passed in 2008.  The New York (NY) can Civil 
            Liberties Union (ACLU) published a legislative memorandum 
            strongly questioning by constitutional validity and the policy 
            of the New York statute.  The NY ACLU stated:

          "The sponsor's memorandum accompanying the e-STOP legislation 
            speaks of a grave security risk posed by predators who utilize 
            the internet to perpetrate sex crimes.  This assertion is 
            dubious; recent analyses indicate the alleged problem is 
            greatly exaggerated.  Those concerned the internet is 
            facilitating the commission of sex crimes often cite a study 
            by the Crimes Against Children Research Center, which found 
            that one in seven children had received sexual solicitations 
            while on-line.  According to the author of the report, 
            however, many of these propositions were 'coming from other 
            kids, or just people who are acting weird on line.'








                                                                  SB 57
                                                                  Page  13


          "A highly regarded 'Frontline' documentary produced by the 
            Public Broadcasting System reached a similar conclusion.  The 
            PBS investigation focused on teenagers, 90 percent of whom 
            used the internet daily - including Facebook, MySpace and 
            other social networking sites.  The producers of the 
            documentary observed that:

          "  'One of the biggest surprises in making this film was the 
            discovery that the threat of online predators is misunderstood 
            and overblown.  The data shows that giving out personal 
            information over the Internet makes absolutely no difference 
            when it comes to a child's vulnerability to predation . . . .  
            Most importantly, all the kids we met, without exception, told 
            us the same thing:  They would never dream of meeting someone 
            in person they'd met online.' 

          "As for children under the age of twelve who are the victims of 
            child abuse, the perpetrator in more than 90 percent of such 
            crimes is a family member or a known friend of the family.  
            Kidnapping or sexual abuse of a child by a stranger is an 
            extremely rare occurrence.  These findings and observations 
            are consistent with the results of on-line sting operations, 
            including sweeps of networking sites.  Aggressive policing of 
            the internet has uncovered few instances of registered 
            offenders engaged in criminal conduct.

          "Recidivism rates among registered sex offenders offer further 
            evidence that the risk of harm posed by registered offenders 
            is greatly overstated.  Following release from state prison, 
            sex offenders are rarely subject to arrest or conviction for 
            another sex offense.  A recent study by New York's Division of 
            Probation and Correctional Alternatives found that of 19,827 
            offenders registered as of March 31, 2005, the re-arrest rate 
            for a new sex crime within one year from the date of first 
            registration was 2 percent; re-arrest within two years was 3 
            percent; within five years, 6 percent; and within eight years, 
            8 percent. 

          "The proposed regulatory scheme is flawed by vagueness and 
            overbreadth.  When government acts to restrict speech based on 
            the identity of the speaker or the content of his speech, such 
            restrictions must be narrowly tailored in furtherance of a 
            compelling government interest.  Courts have recognized that a 
            greater degree of deference may be granted to restrictions 








                                                                  SB 57
                                                                  Page  14

            upon conditions of probation; however these restrictions must 
            not undermine constitutional rights in ways unrelated to 
            rehabilitation.  There is no question that the state has a 
            compelling interest in preventing sex crimes against minors.  
            However, e-STOP is not tailored to restrict only - or even 
            primarily - speech that may be related to the commission of 
            such crimes.  The bill's stated objective is to prevent former 
            offenders from communicating with minors through social 
            networking sites. 

          "But a tremendous amount of communication takes places between 
            adults on social networking sites.  Many people visit MySpace, 
            for example, to engage in political speech or advocacy, or to 
            learn about music performances.  However the proposed e-STOP 
            law would subject to criminal suspicion and prosecution former 
            offenders engaged in lawful speech that is directed to an 
            adult audience, without any intent that the speech reach 
            minors.  The law would also make criminal the mere act of 
            viewing the MySpace web site, even if done with the intent to 
            learn about social or political events.  As a consequence the 
            proposed regulatory scheme fails to pass constitutional 
            muster."  
            Ý.] 

          Although other states and the Federal Government may have 
            enacted Internet restrictions on sex offenders, California and 
            Missouri are the only states that require lifetime 
            registration for all registerable sex offenders with virtually 
            no opportunity for removal.  ÝNIC/WCL Project on Addressing 
            Prison Rape under NIC Cooperative Agreement; American 
            University, Washington College of Law, August 2009; see 
            Missouri Law V.A.M.S. § 589.400(3) ("Registration is a 
            lifetime requirement unless the offender has been pardoned or 
            the conviction has been reversed, set aside or vacated.").]  
            California provides for removal only where an offender can 
            show consensual adult activity that resulted in a conviction 
            for sodomy or oral copulation prior to January 1, 1976 or 
            where the offender is granted a certificate of rehabilitation 
            for offenses not explicitly registerable.  ÝPenal Code Section 
            290.019(a); Penal Code Section 290.5.]

           7)Constitutionality of Sex Offender Registration  :  Both the 
            California and the United States Supreme Court have ruled 
            that, generally, sex offender registration laws do not run 








                                                                  SB 57
                                                                  Page  15

            afoul of constitutional prohibitions against ex post facto, 
            double jeopardy and cruel and unusual punishment.  ÝIn re Leon 
            Casey Alva (2004) 33 Cal. 4th 254; Smith vs. Doe (2003) 538 
            U.S. 84.]  In making such a finding, both courts applied the 
            Mendoza-Martinez test which outlines several guiding factors 
            in determining whether a law is punitive.  The factors include 
            whether the "regulatory scheme" has been regarded in history 
            and tradition as punitive, imposes an affirmative disability 
            or restraint, promotes the traditional aims of punishment, has 
            a rational connection to a non-punitive purpose, or is 
            excessive with respect to its purpose.  The state may not make 
            publicity and stigma an integral part of the objective of such 
            regulation.  ÝKennedy vs. Mendoza-Martinez (1963) 372 U.S. 
            144.]  Sex offender registration has been viewed as a 
            non-punitive regulatory scheme because it is designed only to 
            keep law enforcement and to some extent, the public aware of 
            dangers. 

          For the most part, sex offender registration laws have been 
            remarkably resilient to constitutional challenges.  While a 
            few courts have held that retroactive community-notification 
            provisions are punitive and thus violate the Ex Post Facto 
            Clause, the overall legal trend has been to find community 
            notification regulatory and not punitive in nature.  However, 
            several courts have enjoined community-notification provisions 
            under the Fourteenth Amendment, holding that states must 
            provide minimum due-process protections, such as hearings and 
            a state burden of clear-and-convincing evidence for those 
            hearings, before infringing upon either state privacy rights 
            or the right not to be defamed by the government.  The courts 
            generally recognized that the increased burden on the state 
            was necessitated by the relatively serious liberty interest of 
            the registrant when compared to the insubstantial value of 
            community notification to the state.  As stated by the Third 
            Circuit:
           
          "An erroneous underestimation of an individual's dangerousness 
            will not necessarily result in harm to protected groups . . . 
            .  On the other hand, an overestimation of an individual's 
            dangerousness will lead to immediate and irreparable harm to 
            the offender:  his conviction becomes public, he is officially 
            recorded as being a danger to the community, and the veil of 
            relative anonymity behind which he might have existed 
            disappears."  ÝE.B. vs. Verniero (1997) 119 F.3rd 1077; 
            Garfinkle, COMMENT:  Coming of Age in America:  The 








                                                                  SB 57
                                                                  Page  16

            Misapplication of Sex-Offender Registration and Community - 
            Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163, 
            202.]

          The California Court of Appeals for the Fourth District held 
            that after the residency restrictions in Jessica's Law passed 
            in November of 2006, sex offender registration may no longer a 
            regulatory scheme but instead a form of punishment.  The court 
            stated:

          "We conclude, based on our analysis of the salient 
             Mendoza-Martinez  factors, Jessica's Law's residency 
            restriction has an overwhelming punitive effect.  It 
            effectuates traditional banishment under a different name, 
            interferes with the right to use and enjoy real property near 
            schools and parks, and subjects housing choices to government 
            approval like parole or probation.  It affirmatively restrains 
            the right to choose a home and limits the right to live with 
            one's family.  It deters recidivism and comes close to 
            imposing retribution on offenders.  While it has a 
            non-punitive of protecting children, it is excessive with 
            regard to that purpose.  It would oust a person never 
            convicted of any offense against a child from his family home 
            near a school or park, forcing him to leave his family or 
            consigning the family to perpetually threatened transience.  
            Relocation would be limited to the few outskirts of town 
            lacking a school or park.  Yet the residency restriction would 
            allow a convicted child molester to stroll past the school, 
            eat ice cream in the park, and live next door to small 
            children-as long as he retreats at night to housing far from a 
            school or park.  Building exclusion zones around all schools 
            and parks for all registered sex offenders is excessively 
            punitive.

          "The severe punitive effect of Jessica's Law's residency 
            requirement clearly outweighs the proclaimed lack of 
            regulatory, non-punitive intent.  ÝSee Smith, supra, 538 U.S. 
            at p. 92 ('clearest proof' of punitive effect outweighs lack 
            of punitive intent).]  We are not the first jurists to 
            recognize the overwhelming punitive effect of a residency 
            restriction.  ÝSee State v. Pollard, supra,  886 N.E.2d at p. 
            74  (residency restriction is punitive); Mikaloff, supra, 2007 
            WL 2572268 at pp. 9-10 (same); Leroy, supra,  828 N.E.2d at p. 
            793  (dis. opn. of Kuehn, J.) (same); Miller, supra,  405 F.3d 
            at p. 726  (conc. & dis. opn. of Melloy, J.) (same).]








                                                                  SB 57
                                                                  Page  17


          "Because the residency restriction is punitive, its imposition 
            by the court increases the penalty for a nonsexual offense 
            beyond the prescribed statutory maximum based upon the jury 
            verdict alone.  (Apprendi, supra,  530 U.S. at p. 490  .)  Thus, 
            the facts required to impose the residency restriction must be 
            found beyond a reasonable doubt by a jury."  (Ibid.)  ÝPeople 
            vs. Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by 
            the California Supreme Court].  

          The lower court did not directly rule on the constitutionality 
            of Jessica's Law or sex offender registration and the 
            California Supreme Court has recently held that various 
            provisions of Jessica's Law were not unconstitutional as 
            applied to four parolees.  ÝIn re E.J et. al. (2010) 47 
            Cal.4th 1258.]  Nevertheless, by placing greater requirements 
            on a person who is required to register as a sex offender, it 
            may be more likely seen as punitive by the courts.  If the 
            scheme is designed to gravely disable the offender or is seen 
            as a way to further punish sex offenders, courts may 
            re-examine sex offender registration with the attitude that it 
            is all designed to further the punish the offender and require 
            it be proven to the jury as an additional penalty.  This may 
            result in some offenders escaping registration.

           8)Law Enforcement Resources  :  Assume that a sex offender 
            registrant changes e-mail addresses frequently or uses a 
            number of different e-mail addresses, each for a different 
            purpose.  All of the e-mail addresses, and all of the changes, 
            are required to be reported to the registering law enforcement 
            agency, which is then required to transmit this information to 
            DOJ.  In a state such as California (which has the largest 
            number of registered sex offenders in the country), the work 
            involved in merely processing this information would be 
            considerable.  

          Do municipalities with large numbers of registered sex offenders 
            have the personnel and capacity to obtain, process, and 
            transmit all of this data?  Because of life-time registration, 
            some registrant's may have been crime-free for many years; 
            moreover, their initial crime requiring registration may have 
            been nothing related to child sexual abuse.  Is receipt and 
            processing of all of this information regarding computer 
            identifications a wise use of limited resources?  Does this 
            bill require sex offenders to notify law enforcement that they 








                                                                  SB 57
                                                                  Page  18

            are no longer using the previously registered e-mail addresses 
            and IM identities or in instances in which sex offender 
            registrants have ceased using Internet resources?  Without 
            such a requirement, law enforcement will be burdened with 
            countless pieces of outdated and useless information.

           9)Exposure of Registrants to New Felony Convictions with 
            Potential Three Strikes Implications  :  Failure to comply with 
            all of the requirements of registration is a felony if the 
            underlying crime requiring registration was a felony, or if 
            the registrant has a previous conviction of failure to 
            register, the subsequent failure to register is also a felony 
            regardless of whether the crime giving rise to the duty to 
            register was or was not a felony.  ÝPenal Code Section 
            290.018(a) and (b.)]  Under this bill, failure to provide law 
            enforcement with changes to accounts on Internet service 
            providers or Internet identifiers, constitutes a failure to 
            register and may expose the registrant to a felony conviction. 
             Depending on the prior convictions of the individual, he or 
            she may be subject to penalty enhancements under the Three 
            Strikes law.  

          Under "Three Strikes," any felony conviction, not just a serious 
            or violent felony conviction, following a violent or serious 
            prior results in a sentence of twice the normal length.  With 
            any two violent or serious felony priors, a new conviction for 
            any felony - including writing bad checks, petty theft with a 
            prior, etc. - results in a life sentence.  Thus, the Three 
            Strikes Law makes no distinction in severity between different 
            felonies.  This explains why creating a new felony involves 
            very weighty and severe consequences.  Where a Three Strikes 
            defendant is convicted of two counts of theft not committed on 
            one occasion or arising from the same facts, he or she must 
            receive two consecutive terms of 25-years-to-life.  For many 
            defendants, such a sentence means that they will never be 
            released from prison.

          Although it may be argued that a defendant may always file a 
            motion to dismiss a strike under People vs. Superior Court 
            (Romero) (1996) 13 Cal.4th 497, filing such a motion hardly 
            means that a defendant will be successful especially when the 
            Legislature sees fit to create a new felony.  Simply passing 
                                            the responsibility to the courts is irresponsible.  People vs. 
            Romero is rooted in Penal Code Section 1385, which allows a 
            judge to "strike a strike, in the interest of justice", 








                                                                  SB 57
                                                                  Page  19

            meaning dismiss one of the prior strikes for purposes of 
            sentencing under the Three-Strikes Law.  Courts will look at a 
            number of factors to decide if dismissal for purposes of 
            sentencing is appropriate, including if the defendant has 
            lived a crime-free or relatively crime-free life between the 
            second and third offense.  ÝPeople vs. Carmony (2004) 33 
            Cal.4th 367.]  Living a crime-free life usually includes not 
            committing any misdemeanors.  A defendant who has a record of 
            misdemeanors between strikes will likely be unsuccessful.  A 
            denial of an invitation to dismiss under Penal Code Section 
            1385 is reviewed by appellate courts pursuant to an abuse of 
            discretion standard, which is extremely difficult to show.  
            ÝPeople vs. Superior Court (Alvarez) (1997) 14 Cal.4th 9680.]  
            Therefore, it should provide little comfort to the Legislature 
            that a defendant may make this very often, unsuccessful motion 
            to avoid being sentenced to 25-years-to-life on a non-violent 
            third strike.

           10)Concerns for Prison Overcrowding  :  The California Policy 
            Research Center (CPRC) issued a report on the status of 
            California's prisons.  The report stated, "California has the 
            largest prison population of any state in the nation, with 
            more than 171,000 inmates in 33 adult prisons, and the state's 
            annual correctional spending, including jails and probation, 
            amounts to $8.92 billion.  Despite the high cost of 
            corrections, fewer California prisoners participate in 
            relevant treatment programs than comparable states, and its 
            inmate-to-officer ratio is considerably higher.  While the 
            nation's prisons average one correctional officer to every 4.5 
            inmates, the average California officer is responsible for 6.5 
            inmates.  Although officer salaries are higher than average, 
            their ranks are spread dangerously thin and there is a severe 
            vacancy rate."  ÝPetersilia, Understanding California 
            Corrections, CPRC (May 2006).]  California's prison population 
            will likely exceed 180,000 by 2010.

          According to the Little Hoover Commission, "Lawsuits filed in 
            three federal courts alleging that the current level of 
            overcrowding constitutes cruel and unusual punishment ask that 
            the courts appoint a panel of federal judges to manage 
            California's prison population.  United States District Judge 
            Lawrence Karlton, the first judge to hear the motion, gave the 
            State until June 2007 to show progress in solving the 
            overpopulation crisis.  Judge Karlton clearly would prefer not 
            to manage California's prison population.  At a December 2006 








                                                                  SB 57
                                                                  Page  20

            hearing, Judge Karlton told lawyers representing the 
            Schwarzenegger administration that he is not inclined 'to 
            spend forever running the state prison system.'  However, he 
            also warned the attorneys, 'You tell your client June 4 may be 
            the end of the line.  It may really be the end of the line.'

          "Despite the rhetoric, thirty years of 'tough on crime' politics 
            has not made the state safer.  Quite the opposite:  today 
            thousands of hardened, violent criminals are released without 
            regard to the danger they present to an unsuspecting public.  
            Years of political posturing have taken a good idea - 
            determinate sentencing - and warped it beyond recognition with 
            a series of laws passed with no thought to their cumulative 
            impact.  And these laws stripped away incentive s for 
            offenders to change or improve themselves while incarcerated.  


          "Inmates, who are willing to improve their education, learn a 
            job skill or kick a drug habit find that programs are few and 
            far between, a result of budget choices and overcrowding.  
            Consequently, offenders are released into California 
            communities with the criminal tendencies and addictions that 
            first led to their incarceration.  They are ill-prepared to do 
            more than commit new crimes and create new victims . . . . "  
            ÝLittle Hoover Commission Report, Solving California's 
            Corrections Crisis:  Time is Running Out, pg. 1, 2 (2007).]  

          On January 12, 2010, the Three Judge Panel issued its final 
            ruling ordering the State of California to reduce its prison 
            population by approximately 50,000 inmates in the next two 
            years.  ÝColeman/Plata v. Schwarzenegger (2010) No. Civ 
            S-90-0520 LKK JFM P/NO. C01-1351 THE.]  On May 23, 2011, the 
            U.S. Supreme Court handed down its decision in Coleman/Plata 
            v. Brown (formally Coleman/Plata v. Schwarzenegger).  The 
            Court affirmed the Three Judge Panel's ruling, and ordered the 
            State of California to reduce its prison population by 
            approximately 33,000 inmates to 137.5% of design capacity 
            within two years.  ÝColeman/Plata v. Brown, 563 U. S. ____ 
            (2011).]  The California Department of Corrections and 
            Rehabilitation is currently considering the best way to comply 
            with this order.  

           11)Related Legislation  :

             a)   AB 755 (Galgiani) requires every registered sex offender 








                                                                  SB 57
                                                                  Page  21

               to inform the law enforcement agency with which he or she 
               last registered of all Internet identifiers or service 
               providers and must sign a statement acknowledging this 
               responsibility.  AB 755 failed passage in this Committee.  

             b)   AB 543 (Torres) makes it a misdemeanor, punishable by up 
               to six months in the county jail and/or a fine of not more 
               than $1,000, for any person who is granted probation or 
               placed on parole for the conviction of a crime that 
               requires him or her to register as a sex offender to use 
               any Internet social networking Web site, as defined, during 
               that period of probation or parole if the victim of the 
               offense was under 18 years of age at the time of the 
               offense and the Internet was used in the commission of the 
               crime.  AB 543 held on the Assembly Appropriations 
               Committee's Suspense File. 

             c)   AB 653 (Galgiani) requires a person required to register 
               as a sex offender report his or her Internet accounts and 
               Internet identifiers, defined to include e-mail addresses 
               and designations used for the purposes of chatting, instant 
               messaging, social networking, or other similar Internet 
               communication, to local law enforcement.  AB 653 has not 
               been heard by this Committee.

             d)   AB 757 (Blumenfield) authorizes any law enforcement 
               agency to re-include a registered sex offender granted an 
               exclusion from DOJ's Web site where the agency believes 
               that public safety may be compromised by the continued 
               exclusion from DOJ's Web site.  Upon receiving notice from 
               a law enforcement agency requesting re-inclusion, the DOJ 
               shall notify the offender and thereafter make information 
               about the offender available to the public on the Web site 
               within 30 days.  AB 757 has not been heard by this 
               Committee.

             e)   AB 1022 (Fletcher) authorizes local enforcement to 
               provide information available on the DOJ's Internet Web 
               site of sex offenders, as specified, upon request, by 
               e-mail or other electronic notification.  AB 1022 held on 
               the Assembly Appropriations Committee's Suspense File.

           12)Previous Legislation  :

             a)   AB 179 (Portantino), of the 2009-10 Legislative Session, 








                                                                  SB 57
                                                                  Page  22

               would have mandated a person required to register as a sex 
               offender, or a person who is released as a sexually violent 
               predator, as specified, to report all e-mail addresses and 
               IM identities at the time of registration.  AB 179 was 
               considerably narrowed to address costs and was ultimately 
               gutted and amended into a bill related to corporate 
               taxation laws. 

             b)   AB 1850 (Galgiani), of the 2009-10 Legislative Session, 
               provided that any person sentenced to probation or released 
               on parole for an offense that requires him or she to 
               register as a sex offender, as specified, from using the 
               Internet under certain circumstances.  AB 1850 is 
               substantially similar to this bill and was held on the 
               Assembly Appropriations Committee's Suspense File. 

             c)   AB 2208 (Torres), of the 2009-10 Legislative Session, 
               provided that, commencing January 1, 2011, in any case in 
               which a defendant is granted probation or parole for an 
               offense that requires him or her to register as a sex 
               offender, as specified, and either the victim of the 
               offense was under 18 years of age at the time of the 
               offense, or the Internet was used in the commission of the 
               crime, the defendant shall be prohibited from accessing an 
               Internet social networking Web site during the period of 
               time he or she is on probation or parole.  AB 2208 was held 
               on the Assembly Appropriations Committee's Suspense File. 

             d)   SB 1204 (Runner), of the 2009-10 Legislative Session, 
               requires every registered sex offender to inform the law 
               enforcement agency with which he or she last registered of 
               all of his or her online addresses, e-mail addresses, and 
               IM user names by December 31, 2011 and thereafter at the 
               time of original registration and within 30 days of 
               establishing a new online account.  This information, may, 
               upon request, be shared with the DOJ or other law 
               enforcement agencies.  SB 1204 was held on the Assembly 
               Appropriations Committee's Suspense File. 

             e)   AB 841 (Portantino), of the 2007-08 Legislative Session, 
               would have provided that any time a person required to 
               register or re-register as a sex offender, as specified, he 
               or she shall provide all e-mail addresses and IM addresses 
               that he or she may use or is using.  AB 841 was 
               significantly narrowed in Assembly Appropriations Committee 








                                                                  SB 57
                                                                  Page  23

               and ultimately gutted and amended in the Senate into a bill 
               related to health care.

          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Association for Los Angeles Deputy Sheriffs
          Association of Orange County Deputy Sheriffs 
          California Fraternal Order of Police 
          California Police Chiefs Association 
          California State Sheriffs' Association
          Crime Victims United of California 
          Klass Kids Foundation 
          L.A. County Probation Officers Union 
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Los Angeles Sheriffs' Department
          Peace Officers Research Association of California 
          Riverside Sheriffs' Association 
          Sacramento County Deputy Sheriffs Association
          Santa Ana Police Officers Association 
          The Child Abuse Prevention Center
           
            Opposition 
           
          American Civil Liberties Union
          California Public Defenders Association
          Legal Services for Prisoners with Children


           Analysis Prepared by  :    Milena Nelson / PUB. S. / (916) 
          319-3744