On Tuesday, voters in California overwhelmingly approved Proposition 35, which ratcheted up penalties for those convicted of sex crimes, including human trafficking. The proposition included a provision requiring registered sex offenders to disclose to law enforcement all of their Internet connections and online identities.
On Wednesday, two of the 73,900 registered sex offenders in the state who would be affected by the law filed a lawsuit challenging the constitutionality of these provisions. The two plaintiffs argued that forcing them to expose their online identities would violate their First Amendment right to speak anonymously. Their appeal is supported by the American Civil Liberties Union of Northern California and the Electronic Frontier Foundation.
Late on Wednesday, Judge Thelton Henderson granted a temporary restraining order barring the law from going into effect until he had time to consider the plaintiffs' constitutional arguments.
The two plaintiffs filed their lawsuit anonymously. One is a 75-year-old Alameda resident who committed a crime in 1986 that did not involve computers or the Internet. For more than a decade, he "operated two websites that provided sex offenders with information about registration requirements and recovery resources." It "provided an anonymous online forum for sex offenders to discuss their recovery with other sex offenders."
The second plaintiff was convicted of two offenses in 1993—again having nothing to do with the Internet. He "anonymously maintains [a] blog that discusses matters of public concern." He has fled the state to avoid being subject to the Internet-related provisions of Proposition 35.
Both plaintiffs argue that their ability to express themselves candidly online would be undermined if they were compelled to disclose their online identities to law enforcement. They contend that the proposition approved by California voters on Tuesday is "overbroad because it criminalizes constitutionally protected anonymous speech but is not narrowly tailored because it restricts far too much anonymous speech by too many speakers, and allows the information to be used for too many purposes." That, they argue, violates the First Amendment because sex offenders could be prevented from engaging in anonymous online communication "even if it pertains to news, politics, and professional activity, and could not possibly be used to commit a crime."
Additionally, they argue that the law is "impossibly vague" because it leaves it unclear whether it applies to, for example, "connecting to a wireless network at a coffee shop or hotel, renting a car equipped with an Internet-connected navigation system, creating an account on a new service with the same user name as that used on a different service, or buying something from an online retailer that allows customer reviews, such as Amazon.com." The ACLU points out that the First Amendment requires restrictions on speech to be clearly defined.
Most importantly, the plaintiffs contend that the proposition "violates registrants’ associational rights by potentially compelling disclosure of their participation in online forums organized by political and other groups and by compelling disclosure of the identity of other registrants with whom they discuss political issues."
"The Court finds that Plaintiffs have raised serious questions about whether the challenged sections of [Proposition 35] violate their First Amendment right to free speech and other constitutional rights," wrote Judge Henderson in his Wednesday order. He put the measure on hold while the plaintiffs and the State of California prepare their arguments about its constitutionality.
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