Dec 17 2012

Should sex offenders have to wear a “scarlet letter” on the Internet?

In the novel The Scarlet Letter, Hestor Prynne was required to wear a prominent badge on her clothes, for life, to identify her publicly with the crime she had been convicted of: violating the sexual mores decreed as law by the fundamentalist religious and political leaders of the Massachusetts Bay Colony.

Today a Federal court heard arguments on whether Californians convicted of certain sex-related crimes can similarly be prohibited for life from speaking or acting anonymously on the Internet, and required to declare to the local police, within 24 hours, each of their Internet service providers or “Internet identifiers” (email addresses, user names, etc.).

California’s Proposition 35, enacted by popular vote in October 2012 (can the majority vote to revoke the rights of a disfavored minority?), adds the following provisions (among others) to state law:

Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department,… within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.

(c)  The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted [of specified offenses].

(a) Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration…

(b)  If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours….. The registration shall consist of all of the following:…

(4)  A list of any and all Internet identifiers established or used by the person.

(5)  A list of any and all Internet service providers used by the person….

For purposes of this chapter, the following terms apply:

(a) “Internet service provider” means a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet….

(b)  “Internet identifier” means 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.

The day after the election, the Electronic Frontier Foundation (EFF) and the ACLU of Northern California filed a class-action challenging the new law as unconstitutionally vague (nobody can tell with certainty which “identifiers” or “services” have to be disclosed to the police, or might result in criminal prosecution if they aren’t disclosed) and unconstitutionally “overbroad” (no matter how it is interpreted, its plain language would restrict rights protected by the First Amendment).

Judge Thelton Henderson of the U.S. District Court for the Northern District of California immediately approved a temporary restraining order preventing the law from being implemented.

Today in San Francisco, Judge Henderson heard almost three hours of argument by lawyers from EFF, the ACLU, the California Attorney General’s office (the defendant in the lawsuit), and the sponsors of Proposition 35 (Chris Kelly, who funded the “Yes on Prop. 35” campaign, was present in court) on whether the court should issue a “Preliminary Injunction” continuing the prohibition on enforcement of the law until the federal court’s final decision in the case, which could take months or years.

While the meaning of “Internet identifier” is vague, all parties to the case (and the would-be intervenors) agreed in response to Judge Henderson’s questions about a list of examples — user IDs for banking websites.,, World of Warcraft, etc. — that a user ID used to read the New York Times online would need to be registered with the government, if the user ever posted any comments about news stories.  And the proponents of the law stressed that the purpose of the registration requirement is not to warn the public about registered users of Internet services, but to facilitate police surveillance and investigation of potential future crimes, including “covert” (sting) operations.

As Michael Risher of the ACLU pointed out, “There’s no historical precedent for stripping people of 1st Amendment rights [after the completion of their sentence] on the basis of their having previously been convicted of a crime.”  But this law, if upheld, would set an important precedent of its own.

The registration requirement and the prohibition on using an unregistered user ID or alias don’t depend on any relationship between the Internet and the crime of which someone was convicted. Nor does anything in the proponents’ arguments for this provision of the law depend on the specific nature of the crimes.  If this provision of the law is upheld as applied to people convicted of crimes related to sex, anyone convicted of any crime, ever, could be subjected to a categorical lifetime ban on anonymous online speech.

As Hanni Foukhoury of EFF has pointed out, a similar thing has already happened with DNA testing: First required in California for people convicted of murder and rape, it has since been gradually extend to people convicted of other specified violent crimes, then to people convicted of all felonies, then to anyone arrested for any felony (including possession of any amount of marijuana with “intent to sell”).

Judge Henderson promised a ruling on the motion for a preliminary injunction “as soon as possible”. In the meantime, the temporary injunction against enforcement of the IISP and Internet ID registration rules remains in effect.