By MARIA DINZEO
SAN FRANCISCO (CN) - The NSA's controversial domestic surveillance program factored into a 9th Circuit hearing Wednesday on California's monitoring of sex offenders.
Proposition 35, passed by voters last year, mostly aims to punish human traffickers, but also mandates that sex offenders give police a complete list of their usernames, screen names, email addresses and Internet service providers within 24 hours of setting up a new account or screen name. Failure to do so carries up to three years in prison.
Two anonymous sex offenders who were convicted in 1986 and 1992 quickly filed suit, challenging the provision as overly broad and a burden on their right to anonymous online free speech, such as posting on Internet forums.
U.S. District Judge Thelton Henderson gave the class an injunction earlier this year.
At an appellate hearing Wednesday, Deputy Attorney General Robert Wilson noted that California has been collecting information on sex offenders since November 2012, with no incidents of retaliation by police or suppression of free speech.
"There's no getting around the fact that California has been collecting this information form tens of thousands of registrants for a year and a half, with none of the problems that plaintiffs complained about," Wilson said.
Judge Jay Bybee interjected: "It's very difficult to quantify chilling, isn't it?"
"We're dealing in the post-Snowden era where we're wondering if all of our Internet communications are being monitored by the NSA," he added. "And we've got a little different situation here, but these are folks that are going to have to report all of their monikers that are used on the Internet and have no idea whether the police are regularly trolling to monitor everything that they say on the Internet."
Wilson replied: "It's just as improper for law enforcement as anyone else to be monitoring this noncriminal communications. There has to be a nexus between criminal activity and looking at this information."
He added, "There is no possible way of writing a statute any narrowly than we have now."
The American Civil Liberties Union, which represents the plaintiff sex offenders, worries that a police record of usernames and screen names will stop registrants from posting freely on the Internet without the fear of retaliation.
"This is a law that directly targets speech," ACLU attorney Michael Risher said. "What registrant is going to want to make a comment on his local newspaper's website about the police department, a nasty comment, knowing they have his identifier on file? It's very easy for the police to make a registrant's life difficult."
The attorney for Prop. 35's backers said the law mandates a simple registration requirement that does not disclose the registrant's identity.
"Proposition 35 imposes a registration requirement, it doesn't regulate speech," attorney James Harrison said. "It doesn't prevent sex offenders from speaking online, even anonymously. It doesn't require registration as a condition of speaking; it doesn't require sex offenders to disclose their identity when they speak; it doesn't suppress a type of viewpoint, or any viewpoint at all."
"Internet identifiers are in today's world, essentially a virtual mask," he continued. "To the extent that Prop. 35 affects expressive activity at all, it's not different than the requirement that sex offenders provide law enforcement with their aliases and other identifying information."
Use of the Internet by sex offenders to commit crimes rose between 2000 and 2006, the lawyer added.
"The fact that a registered sex offender didn't use the Internet to commit his first crime or facilitate it doesn't mean that he might not use the Internet in the future," Harrison said.
This point failed to sway Judge Mary Schroeder.
"That's true of all of us - that just because we haven't been sex criminals in the past, that we might not be in the future," Schroeder said. "I don't see how that the sex criminal [act] itself is a predictor of use of the Internet."
Harrison replied: "While I understand that not every sex offender will be recidivist or use the Internet to facilitate their crime, this burden on sex offenders is very low compared to the benefit to law enforcement and the public at large in protecting themselves against predators."
Risher, the ACLU lawyer, called Harrison's point specious.
"Many registrants pose no more risk of re-offending sexually than do people who have never been convicted of a sex offense," Risher said.