By Kelly Carson

In early November, a judge granted a temporary restraining order against parts of a voter-approved California ballot initiative.  The measure’s opponents argue its implementation would significantly curtail the constitutionally protected speech of registered sex offenders in that state.

Proposition 35, or the Californians Against Sexual Exploitation (CASE) Act, appeared on California’s Nov. 6 general election ballot and was overwhelmingly approved by 81 percent of the vote.  Billed as an anti-human trafficking measure, Proposition 35 calls for registered sex offenders to disclose to law enforcement all of their Internet service providers and online identifiers, including email addresses, usernames, screen names, etc.  Registrants must also report any changes or additions to this information within 24 hours or face potential imprisonment.

The day after Proposition 35 passed, the American Civil Liberties Union of Northern California (ACLU) and the Electronic Frontier Foundation (EFF) filed a class action suit on behalf of more than 73,000 individuals subject to the new law.  They argue that Proposition 35 is overbroad in violation of plaintiffs’ and class members’ First Amendment rights, as it “require[s] registrants to provide information about online activities that have no possible relationship to criminality, such as the screen names they use to post comments about articles on a newspaper’s website or names that they use to access political discussion groups.”

Later that same day, Federal District Court Judge Thelton Henderson issued a temporary restraining order blocking the measure from taking effect, citing “serious questions” of constitutional rights needing further consideration.

Indeed, there is a pretty good argument that Proposition 35, in its current form, effectively unmasks an entire class of individuals – completely stripping them of their ability (and right) to speak anonymously online. The chilling effect this would have on candid expression is obvious and, the EFF argues, unacceptable.

“Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics,” says Hanni Fakhoury, a staff attorney for the EFF.  “When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets.”

However – and perhaps unsurprisingly – Fakhoury’s view is not universally supported.  In fact, according to Daphne Phung, executive director of California Against Slavery, the legal challenge to Proposition 35 is “really an attack on the very idea that protecting our children is more important than the sex offender’s ability to exploit people.”

The problem with this line of argument is that it conflates the question of whether human trafficking should be stopped with the question of whether this method would be successful in helping to stop human trafficking.

“Stopping human trafficking is a worthy goal, but this portion of Prop 35 won’t get us there,” says ACLU attorney Michael Rishner.  “This law simply sweeps much too broadly, because it includes all 73,000 people who are required to register here in California.”

Risher maintains that restrictions on sex offenders’ rights should be considered and imposed on a case-by-case basis.  This would ideally take into account both an offender’s criminal history and likelihood to re-offend using the Internet. 

On Nov. 20, Judge Henderson granted a continuance of the scheduled hearing until Dec. 17, where the attorney general of California will have a chance to defend the law.