By Charlotte Silver
A new precedent for chilling 1st Amendment rights
Last November, California voters overwhelmingly approved Proposition 35, the Californians Against Sexual Exploitation (CASE) Act. Like “tough on crime” anti-trafficking legislation around the country, Proposition 35 was presented as bolstering law enforcement's ability to fight human trafficking by introducing a bundle of new laws that, most prominently, increased penalties for those convicted of trafficking human labor, made prostitution a sex crime, and with less public attention, created a new requirement for registered sex offenders.
Under this last provision, all 73,000 registered sex offenders are required to submit their Internet service providers and "Internet identifiers” to their local police department within 24 hours of creating each new one, or face up to three years in jail. “Identifiers” include every name or username a registrant uses for any online activities he engages in, from posting a comment in a news outlet to shopping.
The day after Prop 35 was voted into law, the Electronic Frontier Foundation and the ACLU of Northern California filed a class action complaint on behalf of two anonymous registrants and the advocacy group, California Reform Sex Offender Laws, against the provision under question, claiming that it was unconstitutionally broad and would create a chilling effect on registrants’ free speech and associative rights. In response, the District Court immediately issued a temporary restraining order on Nov. 8, 2012, and eventually, a preliminary injunction on Jan. 11, 2013.
In his ruling (PDF), presiding judge Thelton E. Henderson agreed that the provision would chill the right of registrants to speak anonymously and stated that the “Court cannot simply presume the [government] will act in good faith and adhere to standards absent from the [statute's] face.”
Nearly a year later and that key, if less trumpeted, provision of the voter-initiated measure is still being battled in court. Meanwhile, since the complaint was first lodged, US citizens' cognizance of the ease with which the government abuses its access to their online activity has grown at a rapid rate — as has its disapproval. A recent poll conducted by the Associated Press-NORC Center for Public Affairs Research shows that the percentage of Americans who think the government does a good job at ensuring freedoms dropped from 60 percent in 2011 to 53 percent this year. Similarly, in 2011 40 percent thought the government did a good job protecting their privacy, but today that number is down to 34 percent. It would appear that Americans are increasingly less likely to “presume the government will act in good faith.”
This shifting context may have impact on the outcome of the provision of Proposition 35 that has yet to be implemented.
Judge Jay Bybee, the former Bush administration attorney who co-authored the Office of Legal Counsel's “torture memos,” sat on the three-judge panel in the Court of Appeals in San Francisco on Tuesday, Sept. 10 to hear arguments in the case. As state's attorney Robert Wilson struggled to articulate his argument that the provision would not have a chilling effect on registrants' speech, Bybee interrupted him to comment: “We're dealing in a post-Snowden era, where we're wondering whether all our online communications are being monitored by the NSA.”
Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, warned against reading too much into Bybee's comment, but nonetheless thought it telling. “It reflects an interesting dynamic: that even in a case that has nothing to do with NSA surveillance, when it comes to government interference or government collection of Internet data about particular data there are now going to be some questions that are asked.”
Fakhoury continued, “When the government is watching what you're doing, it chills speech. This is true in the NSA context and in this context.”