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California Prop 35, Anti-Human Trafficking Initiative, Blocked By Judge On Free Speech Grounds

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Last week, a federal judge in San Francisco issued an injunction halting the implementation of California's voter-approved Proposition 35, an anti-human trafficking initiative.

The Californians Against Sexual Exploitation Act, which was passed by 81 percent of California's electorate, would expand the definition and punishment of human trafficking and require convicted traffickers to register as sex offenders and disclose internet activities and identities. It requires that all registered sex offenders provide a list with all of their "internet identifiers" (such as email addresses and social networking profiles) and update this information within 24 hours if there are any changes.

However, a lawsuit filed by two anonymous plaintiffs and a handful of interested non-profit groups immediately following the passage of Proposition 35, argued that the law violated the First Amendment free speech and free association rights of California's sex offenders.

"It is undisputed that speech by sex offenders who have completed their terms of probation or parole enjoys the full protection of the First Amendment," Judge Thelton Henderon wrote in his order, referencing a 1991 ruling that struck down a New York law preventing criminals from earning profits on works describing their crimes.

"The court is not persuaded that burdening the anonymous speech rights of all 75,000 registered sex offenders is narrowly tailored to the government’s interest in fighting online sex offenses," he added.

"Stopping human trafficking is a worthy goal, but the portions of Prop 35 that limit online speech won't get us there. It's crucial that free speech remains free for all of us," said American Civil Liberties Union of Northern California staff attorney Linda Lye in a statement. "This is an important step in ensuring that the First Amendment isn't the casualty of a well-intentioned initiative."

The plaintiffs argued that the law is so broadly written that it could force sex offenders to turn over the login information for their bank accounts a well as profiles for seemingly innocuous things like restaurant and online shopping sites.

In California, statements from sex offenders aren't open to the public; however, law enforcement agencies are allowed to disclose the information if they deem it necessary to protect the public. Henderson wrote that he agreed with a Georgia court's 2010 decision striking down a similar law over concerns that officials there could conceivably release the screen names of all the state's registered sex offender, which would therefore have "an obvious chilling effect" on speech.

Chris Kelly, formerly the chief privacy officer at Facebook one of the measure's principal backers, told the New York Times that, instead of infringing on anyone First Amendment rights, the law was specifically written to close a loophole in the the state's current sex offender registration program.

"What California law does now is it adds essentially an extra field in the database of what sex offenders have to register,” he explained. "That is a common-sense way to extend the registry in the Internet era."

However, critics of the measure have argued that it limits the internet freedom of people whose crimes were completely independent from the online realm, such as the two individuals who filed the lawsuit. Arts Technica reports:

The two plaintiffs filed their lawsuit anonymously. One is a 75-year-old Alameda resident who committed a crime in 1986 that did not involve computers or the Internet. For more than a decade, he "operated two websites that provided sex offenders with information about registration requirements and recovery resources." It "provided an anonymous online forum for sex offenders to discuss their recovery with other sex offenders."

The second plaintiff was convicted of two offenses in 1993--again having nothing to do with the Internet. He "anonymously maintains [a] blog that discusses matters of public concern." He has fled the state to avoid being subject to the Internet-related provisions of Proposition 35.

Henderson had granted a temporary restraining order immediately upon the filing of the suit, the day after the ballot measure was approved, while he considered the arguments of both sides. This injunction effectively prevents the law from being applied until the case is concluded.

Prop 35's backers have expressed dismay at Henderson's continued delaying of the law's implementation.

"Californians made clear when they passed Prop 35 with 81 percent that the people support making the Internet a safer place for vulnerable women and children," Daphne Phung, founder of California Against Slavery, said in a statement. "This was the most popular initiative in California's history. Given that overwhelming support, it was disappointing that court took a different view on a provision of the initiative. We are confident that in due time this provision will be upheld."

California's sex offender registry is the oldest and largest of any state in the country.

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Filed by Aaron Sankin