California Proposition Outlawing Anonymous Internet Usage For Broadly Defined 'Sex Offenders' Passes

from the too-extreme dept

Wed, Nov 7th 2012 4:12pm — Mike Masnick

Yesterday, we wrote about a questionable ballot measure in California that, in an attempt to create harsher penalties for human trafficking, also included numerous problematic components, including banning anonymous speech for anyone on the sex offenders list -- which you can get on for a very broad list of offenses, many of which the public does not associate with being a "sex offender." As we noted, since the core argument in favor of the proposition is such an emotional item, and is well-intentioned, it was likely that the measure would pass -- and it did, with 80% of the vote. Unfortunately, you can now expect the internet provision to be abused -- and likely challenged in court, leading to a wasteful legal fight spending California taxpayer dollars to defend an almost certainly unconstitutional provision. Wouldn't it be nice if we could focus on actual problems instead of lumping in all sorts of other things?

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Filed Under: anonymous speech, california, free speech, sex offenders

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Zakida Paul (profile), 7 Nov 2012 @ 4:19pm

So anyone done for public urination will lose their right to anonymous speech? That is a massive overreach that the various human and civil rights groups will never stand for.
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- Anonymous Coward, 7 Nov 2012 @ 9:53pm
  
  Re:
  Agreed. This is definitely unconstitutional and won't stand up to a Supreme Court challenge.
  
  For the past 30 years, they have been using the VERY SMALL threat of sex offenders (most of whom are only sex offenders by fiat of law for things like public urination, flashing, etc.) to get people to stand by and allow massive overreaches by the government.
  
  Hopefully, that time is coming to an end.
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  - btrussell (profile), 8 Nov 2012 @ 5:04am
    
    Re: Re:
    "A 3 year old gets his mom in trouble with the law when he gets a ticket from police. Now the little boy's mother will have to pay thousands of dollars for what the toddler did in their own front yard."
    http://www.news9.com/story/20010769/three-year-old-piemont-boy-gets-2500-ticket-for-peeing-i n-his-front-yard
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Yawgmoth, 7 Nov 2012 @ 4:21pm

The EFF has already filed a lawsuit questioning the constitutionality/legality of this proposition on behalf of a few "offenders" (it seems you can get on the list for things like urinating in public, or dancing naked on a bar counter)
(link for those interested https://www.eff.org/press/releases/aclu-and-eff-challenge-free-speech-restrictions-californias-propo sition-35)
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Jeffrey Nonken (profile), 7 Nov 2012 @ 4:22pm

For the record, I voted against it, and encouraged my daughter to do the same. And this was before I saw your prior article; I took one look at it and immediately recognized how bad it could be.
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- Anonymous Coward, 7 Nov 2012 @ 4:31pm
  
  Re:
  You know it's bad when we have to look at legislation and say "how bad can it be?" instead of looking at them and saying "what good can it do?"
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- Phoenix84 (profile), 7 Nov 2012 @ 5:25pm
  
  Re:
  I also decided to vote against this before I saw the original article. Too bad the other 80% didn't. I suspected it would pass, but I had no idea it would by such a large margin.
  
  zOMG, the childrenz!
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MrWilson, 7 Nov 2012 @ 4:29pm

This is really sad because I think more public referendums would be great, but I think there needs to be a simplification process. Too many of the ballot measures sound good in their general descriptions and intentions, but the specific rules they make are often what leads to their downfall, whether at the polls or constitutionally. "Poorly written" is the most common description I see for why people suggest not voting for a particular measure.
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Anonymous Coward, 7 Nov 2012 @ 4:30pm

"almost" certainly unconstitutional? I don't think there's anything in the constitution stating that citizens can be punished by being stripped of their right to free expression.
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- Anonymous Coward, 7 Nov 2012 @ 4:45pm
  
  Re:
  I don't think there's anything in the constitution stating that citizens can be punished by being stripped of their right to free expression.
  
  As a general rule, prisoners do not have the same First Amendment rights that free citizens do. (I can cite cases, if you're skeptical of that proposition.)
  
  Pre-trial detainees are a more difficult situation. They certainly have fewer rights than those out on bail. But whether in jail or out on bail, those awaiting trial are under the supervision of the courts. This is an area of active litigation, especially when it comes to the internet.
  
  Somewhat similarly, probationers may have restrictions imposed as conditions of their release.
  
  Ex post facto laws, though, are forbidden.
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  - TheLoot (profile), 7 Nov 2012 @ 4:54pm
    
    Re: Re:
    "Somewhat similarly, probationers may have restrictions imposed as conditions of their release."
    
    There's technically no end to probation for anyone labelled a "sex offender".
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  - Anonymous Coward, 7 Nov 2012 @ 5:10pm
    
    Re: Re:
    "As a general rule, prisoners do not have the same First Amendment rights that free citizens do."
    
    These aren't prisoners. We're talking about people previously convicted of "sex" offenses who have already served their sentences.
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    - Anonymous Coward, 7 Nov 2012 @ 5:41pm
      
      Re: Re: Re:
      These aren't prisoners.
      
      From the Doe v Harris complaint:
      
      25. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23(b)(2) or, alternatively, Fed. R. Civ. P. 23(b)(1), on their own behalf and on behalf of all other persons who are required to register under California Penal Code � 290, including those whose duty to register arises after the class has been certified (the �Plaintiff Class�). All such persons are subject to the law here at issue.
      
      You're asserting that this entire class has completed their sentences? � �Including those whose duty to register arises after the class has been certified� ?
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      - Anonymous Coward, 7 Nov 2012 @ 5:52pm
        
        Re: Re: Re: Re:
        I've asserted no such thing. The point is that prisoners who have served their sentences cannot denied the right to free speech, except for certain very narrow exceptions.
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        Anonymous Coward, 7 Nov 2012 @ 7:03pm
        
        Re: Re: Re: Re: Re:
        The point is that prisoners who have served their sentences cannot denied...
        
        Well, District of Columbia v Heller (2008), says:
        
        [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill
        
        What's the difference?
        
        If society can pass a law prohibiting a felon from shooting off a gun, then why can't society pass a law prohibiting a sex offender from shooting off their mouth?
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        Anonymous Coward, 7 Nov 2012 @ 8:18pm
        
        Re: Re: Re: Re: Re: Re:
        For better or worse, the courts are generally far more protective of the first amendment than they are of the second. That's the difference.
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    - Anonymous Coward, 7 Nov 2012 @ 7:08pm
      
      Re: Re: Re:
      You do not have to be convicted of a crime to be placed on a sex offender list in some states and if placed on one in any state you are placed on sex offender list in all states. Ups my bad you do not even have to actually commit the offense in the states to be placed on a sex offender list in the states. And, once on some states list there is no way off even if you are proved innocent.
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      - Anonymous Coward, 7 Nov 2012 @ 7:30pm
        
        Re: Re: Re: Re:
        You do not have to be convicted of a crime...
        
        And you don't have to be convicted of a crime to have your website taken down: Rojadirecta, Dajaz1.
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        Anonymous Coward, 7 Nov 2012 @ 8:20pm
        
        Re: Re: Re: Re: Re:
        Which makes it all OK, right?
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  - Bengie, 7 Nov 2012 @ 7:00pm
    
    Re: Re:
    One can not have their liberty or rights stripped unless given the chance of a jury. I would like to see a jury claim some of these people should have their rights stripped.
    
    It should be done on a per case basis.
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    - Anonymous Coward, 7 Nov 2012 @ 8:23pm
      
      Re: Re: Re:
      One can not have their liberty or rights stripped unless given the chance of a jury.
      
      If you are referring to US sex offender list you are way, way out in La-La Land.
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      - Anonymous Coward, 7 Nov 2012 @ 8:50pm
        
        Re: Re: Re: Re:
        One can not have their liberty or rights stripped unless given the chance of a jury.
        
        Cheff v Schnackenberg (1966)
        
        Cheff... was sentenced to six months' imprisonment.... Cheff... petitioned for certiorari. We ... granted Cheff's [petition], limited to a review of the question whether, after a denial of a demand for a jury, a sentence of imprisonment of six months is constitutionally permissible under Article III and the Sixth Amendment. We hold that Cheff was not entitled to a jury trial and affirm the judgment.
        
        And also see Baldwin v New York (1970).
        
        � long-established view that so-called "petty offenses" may be tried without a jury.
        
        � six-month penalty is short enough to permit classification of the offense as "petty."
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        Anonymous Coward, 7 Nov 2012 @ 9:55pm
        
        Re: Re: Re: Re: Re:
        Anonymous Coward, those are VERY old cases that are due for an appeal and overturning, to be blunt. I am probably right in saying that they were also never appealed.
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        Anonymous Coward, 8 Nov 2012 @ 4:29am
        
        Re: Re: Re: Re: Re: Re:
        VERY old cases that are due for an appeal
        
        Lewis v United States (1996)
        
        Justice O'Connor, delivered the opinion of the Court.
        
        This case presents the question whether a defendant who is prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial where the aggregate prison term authorized for the offenses exceeds six months.�.�.�.
        
        We conclude that no jury trial right exists where a defendant is prosecuted for multiple petty offenses. The Sixth Amendment's guarantee of the right to a jury trial does not extend to petty offenses, and its scope does not change where a defendant faces a potential aggregate prison term in excess of six months for petty offenses charged.
        
        Is 1996 new enough for you?
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- Anonymous Coward, 7 Nov 2012 @ 5:34pm
  
  Re:
  There is nothing in the constitution for allowing the deprivation of the 2nd amendment's to someone who has served their sentence for a felony either. We claim, as a society, the right to harm others who haven't harmed anyone else. You're OK with that, but demand YOUR rights! HA!
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  - Anonymous Coward, 7 Nov 2012 @ 5:50pm
    
    Re: Re:
    Being neither a Californian nor a sex offender, I'm not demanding "my" rights, which would be wholly unaffected by this law. You're free to make the argument that those laws are unconstitutional, but that does not change in the slightest that this is a ridiculously poorly thought out and unconstitutional law.
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:Lobo Santo (profile), 7 Nov 2012 @ 4:32pm

Camels Nose
...and once the framework for enforcing 'no anonymity' is in place, it becomes a simple matter to lump in other 'dangerous groups' of people.

Likely they'll start with felons, then move on to fraudsters, pollsters, delinquents, and finally just everybody who's ever expressed a negative opinion about the regime.
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- Anonymous Coward, 7 Nov 2012 @ 5:16pm
  
  Re: Camels Nose
  and finally just everybody.
  
  FTFY
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Anonymous Coward, 7 Nov 2012 @ 4:32pm

Tyranny of the majority
More proof that direct democracy is a bad idea.
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- MrWilson, 7 Nov 2012 @ 9:06pm
  
  Re: Tyranny of the majority
  As opposed to the daily proof we've already seen that representative democracy is also a bad idea. And dictatorships. And theocracies. And so-called "communist" regimes.
  
  It's not actually that the direct democracy process is bad. It's that the population isn't well educated or motivated enough for it to work. Participation in the voting system is so cynical that most people aren't enthusiastic enough to vote, and if they do vote, they don't care enough to research what they're voting on and just want someone they might too easily trust to tell them how to vote.
  
  But I prefer to vote on measures myself rather than elect some politician who cannot possibly represent me, even if he's the lesser of all electable evils running in that particular election.
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Anonymous Coward, 7 Nov 2012 @ 4:50pm

"As a general rule, prisoners do not have the same First Amendment rights that free citizens do."

These aren't prisoners. We're talking about people previously convicted of "sex" offenses who have already served their sentences.
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Anonymous Coward, 7 Nov 2012 @ 4:53pm

Americans seem obsessed with sex
There doesn't seem to be a single unreasonable bad law they won't get behind if it has the words "sex" or "children" in the title.
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- That One Guy (profile), 7 Nov 2012 @ 5:21pm
  
  Re: Americans seem obsessed with sex
  It's not just americans sadly enough, almost all of society worldwide currently treats anything sexual as more obscene and offensive than just about anything else.
  
  As an example:
  
  The Saw movie series, a set of movies that are basically fictional horror/snuff films, depicting characters suffering and often dying in a number of gruesome ways, are still socially acceptable to the extent that you can find them at pretty much any store that sells a good selection of movies. Walmart carries them for crying out loud.
  
  Contrast this with even the most vanilla pornographic movie, which if put up for sale in the same stores would likely lead to jail time and a place on the sex offender registry for whoever put it up, and it becomes all too clear that society in general, for whatever reason, is flat out terrified of sexuality and does it's best to hide and/or vilify it.
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  - Anonymous Coward, 7 Nov 2012 @ 6:23pm
    
    Re: Re: Americans seem obsessed with sex
    "Walmart carries them for crying out loud". Yet Walmart won't carry any album that has a Parental Advisory label. They sell movies with cuss words, but not CDs with cuss words. What sense does that make?
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  - Anonymous Coward, 8 Nov 2012 @ 11:14am
    
    Re: Re: Americans seem obsessed with sex
    You are forgetting that America was started by the Puritans and the Puritans viewpoints towards sex are still being foisted on people by the religious institutions.
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Anonymous Coward, 7 Nov 2012 @ 6:50pm

Good to know the likes of Fred Willard, Paul Reubens and Jeffrey Jones can't hide any longer.
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Charles Newman, 7 Nov 2012 @ 7:09pm

Like I said before, unenforcable. All anyone on the registry would have to do it use a VPN to hide their activities from the authorities.
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- That Anonymous Coward (profile), 7 Nov 2012 @ 8:09pm
  
  Re:
  and then face charges for violating the unconstitutional law, get sentenced and held in prison while the world judges you not as someone subject to an overreaching law but a predatory so bent on getting more children you tried to sneak around the law... so we need a tougher law!!!
  
  The law will get overturned, you will maybe get released into a society that now thinks of you on the same level as prior generations thought of Charles Manson.
  
  Much like the allegations of someone being a pedophile, this will destroy your life. Everyone will remember the allegation and forget that you were falsely named. You will be more unable to get work, if your lucky your home won't get burned down as good moral people run you out of town for the crime of being accused.
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  - Chilly8, 7 Nov 2012 @ 8:27pm
    
    How would they find out what you are up to if you were using a VPN? The only thing they could get from ISP logs is that you connected to the VPN. They could not determine where you went beyond the VPN. Most VPNs are outside the USA and keep no logs, so there would be no way to get the logs to find out what you did.
    
    And second, you could like a program like KillDisk or Evidence Eliminator, so that if your computer was searched, they would not be able to get any evidence. I could see sales of EE or KillDisk going up in California.
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    - That Anonymous Coward (profile), 7 Nov 2012 @ 10:21pm
      
      Re:
      Because a lack of evidence will be assumed to be guilt of something.
      
      Being on the sex offender list basically gives the government carte blanche to trample on your life, made the list for peeing in public... doesn't matter you can't put up halloween decorations or hand out candy you evil child raping bastard.
      
      Your on the list so your rights have to be curtailed, because the list is nothing more that society piling on extra punishment for a crime you already were punished for. They just don't pay attention that sometimes "Good People (tm)" end up on the list for stupid reasons, until they or someone they know ends up on the list for something asinine... then they want to try and change things but they will be shouted down as being child molester lovers.
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      - Chilly8, 7 Nov 2012 @ 11:24pm
        
        Re: Re:
        There is no law that makes Evidence Eliminator or Killdisk illegal to own or use, so using Evidence Eliminator or Killdisk would, by itself, not be enough to charge someone with a crime.
        
        And VPNs are not illegal, yet. So they could not charge you with a crime just for using a VPN.
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      - Anonymous Coward, 8 Nov 2012 @ 3:19am
        
        Re: Re:
        Yeah I agree 100% that list is fucking screwed up so bad... I mean for fucks sake there are people on it for taking a piss in public.
        
        Taking a piss in public IS NOT the same thing as rape. I mean COME ON! Who in the hell here has not took a piss outside..
        
        Do you want to be tagged a rapist scumbag chomo for being stuck on the interstate and having to take a fucking piss? Then to top it off the government watches you for the rest of your life..
        
        How about this one two teenagers have sex and due to our fucked up legal system one of them is tagged as a sex offender. I mean really who in the fuck here has not lost their virginity before the age of 18? Not me soon as I hit puberty I was hunting for some poon. Shit I was kicked out of art class for hitting on the teacher A LOT. I might have not scored with her in school but by dumb luck it happened when I was in my early 20's lol.. She was still fine as hell.
        
        The sex crime database needs to apply to sex crimes only! IE Sexual predators that mean to cause harm. A 14 year old kid looking for pussy is not a predator he's a fucking teenager.
        
        Examples of who needs to be on the list.
        
        Anyone convicted of
        Rape.
        Child porn.
        Porn of anyone being raped.
        Anyone that can watch two girls one cup without throwing up.
        Anyone that can look at Rosie O'Donnell and (A. Keep a boner.) and/or (B. Not throw up.)
        Anyone that has a hard-on for Barbra Walters.
        
        Alright those last 3 were my bad attempt at humor.
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    - Harry Payne, 8 Nov 2012 @ 2:52am
      
      Re: Evidence Eliminator?
      Srsly? (as I believe the kids say nowadays)
      
      I'll just leave this here...
      
      http://radsoft.net/software/reviews/ee/index.shtml
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  - Chilly8, 7 Nov 2012 @ 8:29pm
    
    Re: Re:
    As far as not being able to get work, you just simply lie on your job application and say no, if they ever ask if you were arrested for that crime, problem solved.
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    - That One Guy (profile), 8 Nov 2012 @ 5:18am
      
      Re: Re: Re:
      And then when they actually check not only do you not get hired, odds are you're going to be spending some time behind bars, or at least in serious legal trouble, for lying and trying to get a job without telling them.
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IronM@sk, 7 Nov 2012 @ 9:31pm

Ice Cream, anyone?
Before I plan my next trip to the United States; would I be considered a sex offender if I really love ice cream?
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- Rekrul, 7 Nov 2012 @ 11:45pm
  
  Re: Ice Cream, anyone?
  Before I plan my next trip to the United States; would I be considered a sex offender if I really love ice cream?
  
  That depends...
  
  Are you male, and do you like to eat that ice cream while visiting the park alone? If so, you may be considered a pedophile.
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Anonymous Coward, 8 Nov 2012 @ 12:07am

You know what else would be great? If groups like the ACLU could get these ridiculous laws which put crimes like urinating in public in the "sex offense" category overturned.

It seriously amazes me that anyone thought it would be a good idea to add things like public urination or being caught with a prostitute to the list of sex offenses. Not only does that ruin the lives of people who clearly don't deserve it, it negates whatever value the sex offender registry might have had by obscuring the dangerous criminals in a sea of perfectly harmless people. For virtually every other act, the context matters, but when it comes to anything even remotely involving "sex", context goes out the window.

Hunting for sex offenders has become this century's witchhunt. Hold a toddler by using one arm under their bottom for support and someone might decide that you're trying to cop a feel. Kiss someone without permission and you've just sexually assaulted them. Tell a dirty joke to a friend while a woman is within earshot and you're guilty of sexual harassment. Have some porn with young LOOKING girls and you could be found guilty of possessing child porn.

If we were to lock up all the people who fit someone's idea of a sex offender, probably 60% of the male population of the US would be in prison, along with probably 40% of the female population. That's just sad...
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Anonymous Coward, 8 Nov 2012 @ 12:14am

You know what else would be great? If groups like the ACLU could get these ridiculous laws which put crimes like urinating in public in the "sex offense" category overturned.

It seriously amazes me that anyone thought it would be a good idea to add things like public urination or being caught with a prostitute to the list of sex offenses. Not only does that ruin the lives of people who clearly don't deserve it, it negates whatever value the sex offender registry might have had by obscuring the dangerous criminals in a sea of perfectly harmless people. For virtually every other act, the context matters, but when it comes to anything even remotely involving "sex", context goes out the window.

Hunting for sex offenders has become this century's witchhunt. Hold a toddler by using one arm under their bottom for support and someone might decide that you're trying to cop a feel. Kiss someone without permission and you've just sexually assaulted them. Tell a dirty joke to a friend while a woman is within earshot and you're guilty of sexual harassment. Have some porn with young LOOKING girls and you could be found guilty of possessing child porn.

If we were to lock up all the people who fit someone's idea of a sex offender, probably 60% of the male population of the US would be in prison, along with probably 40% of the female population. That's just sad...
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- Gregg, 8 Nov 2012 @ 10:09am
  
  Re:
  The Supreme Court of Canada over a year ago made a ruling that any sexual contact with someone unconscious, could not be consented too. At first this makes some sense, why would someone assume sexual consent with someone unconscious. But that was not the point of the ruling as it was already illegal to have sexual contact with someone that did not consent. However if you had given someone consent to sexually touch you when you were asleep\unconscious, the law now says you can not.
  
  The original case that went to the SCoC was a very bad case involving sexual asphyxiation....you can take it from there. But the bottom line is, you can't legally sleep with your husband or wife naked, as you are both committing sexual assault! you can't kiss your sleeping child, you can't start mid-night sex with your partner and of course, you can't have sex with someone who is into sexual asphyxiation (that one is fine with me!).
  
  Our perception and paranoia of "sexual crimes" has ridden off the rails and is ruining thousands of peoples lives (including women!). It's time for people to be aware of the abuse of sexual crime laws and enforcement and to say something to your public representative!
  
  http://www.cbc.ca/news/canada/story/2011/05/27/pol-scoc-sex-consent.html
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Rekrul, 8 Nov 2012 @ 12:15am

The two AC posts are by me. Techdirt's comment system seems to be on the fritz lately...
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Anonymous Coward, 8 Nov 2012 @ 3:47am

There is a pattern here, get a law passed to allow the monitoring of dangerous sex offenders, and the extend the definition of sex offender so that it becomes easy to add anyone who offends the authorities to the sex offenders list.
This enables monitoring of every aspect of their life, which makes political activism difficult, and easy to find a reason to throw them in jail when they are likely to become an inconvenience; such before a G8 meeting.
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Gregg, 8 Nov 2012 @ 9:55am

Sex Offender Laws
The term sex offender is so broad and loosely used, that the use of "sex offenders" ridicules actual victims of real rape.

The usage and restrictions of "sex offenders" is just another way for the government to control it's population. It's sexist in it's design and implementation.
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Tex Arcana (profile), 8 Nov 2012 @ 4:41pm

Doesn't this pretty much put the entire porn/scat/watersports/squirting industry out of business??

The internets won't have it!!
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