On November 7, one day after Californians passed Prop 35, the ballot proposition on human trafficking, the ACLU filed a lawsuit in federal court challenging one of its provisions. On that same day, Federal District Court Judge Thelton Henderson granted a temporary restraining order staying enforcement of the provision which requires all convicted sex offenders to register their email addresses and Internet screen names with the government.

Convicted sex offenders in California already have a lifetime registration requirement to report to the government their physical addresses. The provision of Proposition 35, which expands sex offender registration, applies to all sex offenders, and requires they also report their email addresses and screen names. According to the lawsuit, the rule “appears to require each [sex offender] registrant to document and report not only her email address and Facebook account but also any ‘screen name’ or similar identifier associated with her comments on news websites and civil rights discussion fora, her participation in professional networks such as LinkedIn and other online sites related to her business or profession, any identifier associated with feedback submitted to an online retailer like Amazon.com or review site like Yelp, and even her own personal blog or web page.”

The intent of the beefed-up sex offender registration requirement in Proposition 35 is to bring sex offender registration into the modern era. The argument goes, if the original “Megan’s Law” had been passed in 2012, instead of 1996, it surely would have encompassed cyberspace.

The problem, though, is the Internet is not a place you stay at night, it’s where you communicate and ultimately what you say. There are significant First Amendment rights implicated in requiring convicted sex offender to essentially give the government a running portfolio of their on-line speech. Such a requirement burdens freedom of speech, freedom of association, and the privilege to communicate anonymously on public matters.
The state may restrict First Amendment rights in legislation that is ‘narrowly tailored’ to compelling government interests. Prop 35 has no such tailoring. It applies no matter how long ago a sex offense occurred and whether or not it involved a computer.

I’ll be following this lawsuit. In the meantime, you can check out the ACLU blog.