An overwhelming 81 percent majority of Californians voted in the recent November elections to bring Proposition 35 into law. Prop 35 toughens sentencing for sex traffickers and restricts some online activities by convicted sex offenders. However, that same day a judge issued a stay on the online portion of Prop 35 in response to a lawsuit claiming that it was unconstitutional. The stay means that portion of the law is not in effect until the judge can decide the case or remove the stay. The American Civil Liberties Union and the Electronic Frontier Foundation brought the lawsuit on behalf of two anonymous plaintiffs against California Attorney General Kamala Harris and the city of Alameda.
The portion of the law dealing with sex trafficking was not stayed and is now part of California law.
Prop 35 has several components. Under federal law sex trafficking is “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.” A sex trafficking conviction in California now brings 15 years to life in prison, fines of up to $1.5 million and mandatory registration as a sex offender. California’s sex offender registry is available online for free to the public.
Prop 35 also proposed that all sex offenders must give police all information of their Internet activities. The ACLU and EFF argue that this is a violation of the First Amendment. By issuing to police all of their online usernames, screen names and passwords, sex offenders would be giving up their right to post online anonymously. The ACLU claims this portion of the law is “unconstitutionally overbroad.” A law is overbroad if it violates protected speech in an attempt to restrict unprotected speech. The complaint alleges that because Prop 35 has inadequate limits on what the government can disclose to the public, legal anonymous online speech activities could be released to the public.
Prop 35 forces sex offenders to register to police all their online information within 24 hours of setting up a new Internet account. The plaintiff’s complaint noted that 73,000 Californians would be affected if the online reporting requirement is upheld. U.S. District Judge Thelton Henderson heard oral arguments from the parties on Nov. 20 but has yet to issue a decision.
Sex offender laws
People charged with a sex crime face potentially severe consequences that can last a lifetime. For example, the two anonymous plaintiffs in this lawsuit were convicted of sex crimes in 1986 and 1993, respectively. Neither crime involved the Internet. An experienced criminal defense lawyer can help those facing sex crimes to protect their rights.