Judge blocks enforcement of Calif. human trafficking law

Lawsuit challenges provision requiring all sex-offenders in state to turn over Internet identifiers to police; Voters approved law this week

A federal judge has temporarily blocked enforcement of a provision in a just-enacted California state law that requires all registered sex-offenders to immediately turn over the all of their Internet identifiers and the names of their Internet service providers to local police or sheriff's departments.

The temporary restraining order comes in response to a lawsuit filed Wednesday in the U.S. District Court for the Northern District of California by the Electronic Frontier Foundation and the American Civil Liberties Union Foundation of North California.

The lawsuit, filed on behalf of two John Doe plaintiffs, sought the immediate striking down of the provision in the newly enacted Californians Against Sexual Exploitation (CASE) Act, which was enacted Tuesday when California voters overwhelmingly approved Proposition 35.

In granting the Temporary Restraining Order, U.S. District Court Judge Thelton Henderson said the plaintiffs have "raised serious questions about whether the challenged sections of the CASE Act violate their First Amendment right to free speech and other constitutional rights."

The CASE Act increases criminal penalties for human traffickers, which it defines as anyone who forces people into felony crimes such as prostitution or forced labor or are involved in the creation and distribution of child pornography even if the offender has no actual contact with the minors depicted.

Penalties for such crimes are dramatically increased under the new law.

CASE increases the maximum prison sentence for labor trafficking from five years to 12 years. The maximum sentence for sex trafficking crimes involving adults now fetches 20 years versus the previous five-year maximum prison sentence. Those convicted of trafficking in minors can now face up to life in prison; the previous maximum sentence for that crime was eight years.

The EFF and ACLU are challenging a provision that requires all registered sex offenders in the state to give their e-mail addresses, user names, screen names, and all "other personal identifiers for Internet communication and activity" to local law enforcement agencies.

The law requires that registered sex offenders notify authorities within 24 hours of creating new email accounts, changing online names or their ISPs or face years in prison.

The EFF contends that the provision immediately affects more than 73,000 Californians who are registered as sex offenders.

In the complaint, the EFF and ACLU say the provision is too broad and impacts people with decades-old convictions for relatively minor misdemeanors or whose crimes are unrelated to Internet use.

"The law requires 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," the complaint says.

The requirement is unconstitutional, contends Hanni Fakhoury, a staff attorney for the EFF who is representing the plaintiffs in the lawsuit.

"This is a First Amendment issue," Fakhoury said. "What the [statute] does is to eliminate the right to speak anonymously for an entire class of individuals."

The bill is not limited to human traffickers. Rather it applies to every sex offender in the state regardless of how minor the offense was or how long ago it occurred, he said.

It's one thing to expect a curtailment of certain rights for people who are currently incarcerated or under probation or parole, Fakhoury said. It's another matter though to curtail those rights, for people who have already served out their prison time and their probationary periods, he said.

"At some point, they become just like everybody else in society" and have the right to communicate anonymously online if they choose to, he said.

The District Court has scheduled a hearing on Nov. 20 to decide whether a preliminary injunction enjoining the state from implementing and enforcing the provision should be issued.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His e-mail address is jvijayan@computerworld.com.

Copyright © 2012 IDG Communications, Inc.

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