On Tuesday, Nov. 6, a federal judge blocked part of California Proposition 35 by granting a temporary stay on the new law. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), which is based in San Francisco, are challenging this action.
The ACLU and the EFF are both representing two individuals who have been convicted of sex crimes and labeled as sex offenders. The two groups are defending the convicts’ rights to free speech as put forth by the First Amendment, which the ACLU and the EFF claim is being infringed upon by Prop 35.
The proposition passed this past election with 81 percent in favor of the law. The law sets higher penalties for those convicted of sex trafficking who can now serve 15-years-to-life and pay fines up to $1,500,000. Under this new proposition, sex traffickers are now required to be registered as sex offenders and be put on the sex offenders’ registry, which is accessible to the public.
The law also stipulates that police officers must be trained to handle human trafficking situations and fines collected from those convicted must be used for victim services and law enforcement. In addition to these stipulations, the one change this proposition imposes is that sex offenders, whether traffickers or other, must provide all the information and activities they use on the Internet. For example, a sex offender must provide law enforcement with their usernames and passwords along with reporting any and all Internet activity.
The ACLU and the EFF find this to be a violation of the First Amendment because these individuals have the right to express their views anonymously, which they feel cannot be possible with Prop 35 in full effect. The ACLU and the EFF are representing two sex offenders who are claiming that they will not engage in political discussion online or post online for fear that others will find out their identities.
According to English professor and head of APU’s Center for Research on Ethics and Values Dr. Mark Eaton, the issue is not one that people can really oppose because it is making the penalties higher for sex offenders. However, the law can be seen as infringing upon the rights of sex offenders.
“It seems what the ACLU is trying to protect are the people’s rights to free speech, but what the law is designed to do is to prevent them from doing those things that are criminal,” Eaton said.
Another group involved with lawsuit is the California Reform Sex Offender Laws who fight for the Constitutional rights of all citizens although they are “dedicated to restoring the rights of those convicted of sex crimes,” according to their website.
Several groups and organizations were for the proposition and $3.7 million were spent campaigning for the proposition. However, no money was spent toward a campaign in opposition to the proposition.
“It seems as if they are getting in there and trying to defend sex offenders, which is a really unpopular thing for someone to do,” Eaton said. “But somebody has to look out for the rights of people if there are rights being infringed.”
Senior communication studies major Melody Neves has been part of the fight against human trafficking, particularly sex trafficking, since she first came to APU four years ago. She is head of the anti-sex-trafficking club and is in favor of Prop 35. According to Neves, the proposition itself does not infringe upon the rights of sex offenders because the Internet is already accessible to the government.
“Technically, the government has access to the things we post online anyway,” Neves said. “So nothing you post on the Internet is actually private. Honestly, if they’re not doing anything illegal, I don’t see why they would have a problem if the police see what they’re posting online.”
The first hearing to argue the case was held on Tuesday, Nov. 20, and is the first in a string of hearings that will decide whether or not the case will be possibly brought before the Supreme Court and if the stay imposed by the federal judge should remain in place or be removed.
“The case has national significance as other states might follow California in their decision regarding the proposition,” Eaton said.
Other states like Louisiana and Indiana banned the use of the Internet by sex offenders completely. The lawsuit is also significant in that it makes sure that the proposition and the law does not infringe upon any rights of anyone, even sex offenders.
“If there are things they are doing that are criminal, law enforcement has to be able to ﬁnd out about those things, but they have to be able to do it legally,” Eaton said.