Monday, September 16, 2013

CA - How a Law Aimed at Sex Offenders Could Feed into the Growing Surveillance State

Surveillance State
Original Article


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.”


Kirk said...

I just have to wonder just how long it would be, that once they got a foot hold by implementing this unconstitutional law would it take them to claim that they now have to put phone taps all cell and land line phones off all registered persons in this country. You know for the safety of that one possible child that might or might not be in danger??? ( They must know every one and every thing we are saying and to who. After all we may be conspiring to overthrow some day care I.E. {the Government} or corresponding with the Taliban! After all we never know who an EX offender might be corresponding with right? Lord Help us please.)

On a second thought.
If they do uphold this joke of unconstitutional garbage I will go out and register in every chat room, news service, Blog .so on and so forth. Making different log on names and passwords for each one even if I never intended to go there again of that they did not require registry to that website at all, Making a duplicate list for myself and the Government making sure the list was larger than an old 60's phone book!!! By the time I finished turning in the last site name that is. Just think if every one on the registry did that it would tie up so many law enforcement persons they would throw a tantrum (Probably go running to congress to pass a law limiting the number of sites registered persons can sign on to or some Bull S * * t like that) because you know there going to contact each site to notify them that you are there (Just to try to get you thrown off anyway) and confirm that you really did log onto that site with close to a million registered persons at least a third ( my low guess) have to have access to a computer doing this would tie them up for years and cost a fortune in over time alone! at least that is what I hope the outcome would be.

I remember in a class I once had where we discussed law enforcement of the past approximately early 19 century lets say about 1920s where the beat cop would see an ex convicted person walking down the street and go and rough them up, follow them, make it so they could not find work. This went on until many law suits were filed against law enforcement for harassment and other civil liberty infractions against the ex criminals rights and freedoms, that is why I find so many of the things I see them doing to registered persons really brings those times to mind. I just wonder how long or just when the people will rear up and start to file for court relief of this treatment or harassment even though law enforcement is much smarter about how they do there harassment now days compared to back then but it still can be seen.

I just hope I am still alive when this all falls apart after all I just read in one of the posting here where they claim that they just have to keep up the bull S * * T, because it will take Decades if not more to see if the registry and Zoning of registered persons is working or not. Again I say lord please.

Loneranger said...

Gee it took long enough for someone to finally say what I have been saying all along. We pass laws that set precedence and then wonder why it snowballs out of control. take away the rights of one specific group we are told we must hate and fear but then is applied to the rest of the population. It's ok for the storm troopers to swarm on a sex offender's home as we don't like them and really how does that affect me. Well you said it was ok for them to do this and if it is good enough and leagle for one group it surely applies to everyone. They can not discriminate and single out just one group. Right? Well hey people you asked for it. You voted for it you even demanded it. Do you think maybe you have been lead down a path here? Maybe we should have stood up for the rights of all instead of giving them away. Thinking we were giving someone else's rights away and it would never apply to all. Really? What we are seeing is a high tec version of Nazi Germany. Hitler did the same thing to the German people. Started with one group. Passed laws against them and then applied the laws amended without a vote of the people the same as here. Does anyone see a problem with this? Well to late you have been taken down a path and really it's leagle and nothing you can do to stop it as precedence has been set. Remember turning your head when the sex offender registration was deemed regulatory? The door was opened wide for any surveillance or form of enforcement to be imposed as really it's just regulatory. Right? We need to stop all the fear mongering that has led to these well intended laws. Someone once said the path way to hell was paved with good intentions. Can we not say that the pathway to hell has been paved with feel good laws then? Well now that it has come home to roost and we the people have become divided. Surely they will conquer. Hope someone can understand how this works before it is to late. Yes we need to repeal the sex offender registries on the grounds that they are unconstitutional. Reverse the precedence and stand up for peoples rights. We may not like them but frankly we can like or dislike anyone we choose without giving up constitutional protections. Either stop listening and being lead down the path and stand up for your rights. Or to save one child and give up your freedom. Remember Hitler said it was for the children as well.

Honest Abe said...

"The best way to defeat a bad law is to strictly enforce / adhere to it" Abraham Lincoln