November 4, 2012 | By rainey Reitman

EFF Urges No Vote on California Proposition 35

EFF is urging voters in California to vote no on Proposition 35 in the upcoming election. The proposition calls for new restrictions on registered sex offenders, including that they provide a list of all Internet service providers they use and a list of all their online accounts -- such as usernames, email accounts, and Twitter handles. EFF opposes this proposition because it would create new restrictions on online speech and increased government surveillance of the online accounts for a class of individuals, creating a dangerous legislative model for policing unpopular groups in the future. While we share concerns about human trafficking and want to make sure the law is as effective as possible, we believe that censorship and increased surveillance of an entire class of people is not the right legislative fix for this troubling problem.

Many have joined EFF in opposing this proposition. In addition to the Los Angeles Times officially endorsing a 'no' vote, the paper's Editorial Board wrote a scathing criticism of the initiative, noting that while California’s law in this area "has been fine-tuned more than a dozen times over the last seven years as experience was gained," Proposition 35 would "substitute a web of poorly drafted laws that expand the sex offender registry" and "divert resources from victims." The Sacramento Bee Editorial Board also opposes the proposition, calling it "overbroad and misdirected."  It also notes that previous attempts to force registered sex offenders to report all Internet identifiers were rejected by the legislature "because they impose a costly and burdensome requirement on local law enforcement agencies."

The American Civil Liberties Union has also voiced their opposition. Francisco Lobaco, legislative director for the ACLU of California, stated:

The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.

As the ACLU noted, Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used.  There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior.  For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members  – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.

Some people who find themselves listed in sex offender registries have joined up with concerned scholars and civil libertarians to advocate for reform to the laws – and they’re using the Internet to raise awareness about the issue. Reform Sex Offender Laws, a web-based campaign launched in the late 1990's, highlights how sex offender laws erode civil liberties and disrupt normal social interactions. But Proposition 35 will stunt this type of advocacy for legislative reform, forcing activists in California who are on the registry to turn over the accounts they use for activism purposes. Regardless of your opinions about sex offender laws, our democratic society benefits when people with a wide range of views have equal rights to debate the issues of the day and discuss the best way to solve problems -- whether on a soapbox in a public square or on a Twitter account from a mobile phone. 

While we are deeply concerned for the victims of sex trafficking, this proposition unconstitutionally compromises the free speech rights of an entire class of individuals and creates new avenues for government monitoring of online communities. We ask voters in California to come out to the polls on Tuesday and join us in voting no on Proposition 35.


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