California voters yesterday approved a new law billed as curbing human trafficking. A lesser-known section of Proposition 35, however, requires residents convicted of indecent exposure and other sex-related crimes to register their social-networking profiles and e-mail addresses with police.
That violates the First Amendment's guarantee of freedom of speech, including anonymous speech, the ACLU and the Electronic Frontier Foundation said in a lawsuit (PDF) filed today.
Prop 35 takes effect immediately and sweeps broadly. It says that California residents convicted of crimes since 1944 including misdemeanor indecent exposure -- courts have included in that category nude dancing on a stage at a bar, someone exposing themselves during a road rage incident, and an adult prostitute who mistakenly solicited a police officer -- have to disclose all "Internet identities."
"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," EFF staff attorney Hanni Fakhoury said. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."
Anyone who's swept up into Prop 35's definition has 24 hours to inform police of any "electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication." Failing to inform police is a crime.
Prop 35's notification requirement includes, the ACLU and EFF believe, comments posted on news Web sites -- including ones such as those posted to CNET's discussion forums -- where registration is required or screen names are permitted.
Naomi Akers, executive director of St. James Infirmary, a San Francisco-based medical clinic for current and former sex workers, previously worked as a prostitute and was convicted for lewd conduct. In a Facebook post, she said that, thanks to Prop 35, "I will be required to register as a sex offender for the rest of my life and have my Internet monitored for LIFE!"
EFF and ACLU attorneys hope that their lawsuit, filed in federal court in the Northern District of California, will succeed because of previous cases in which courts have upheld the right to anonymous speech. The plaintiffs in their case are covered by Prop 35 and want to comment online while remaining anonymous.
Probably the best-known of those rulings is a 1995 U.S. Supreme Court decision, McIntyre vs. Ohio Elections Commission, in which the majority said anonymous speech "exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society."
The California Department of Justice did not immediately respond to requests to comment from CNET. We'll update this article if we hear back.
Chris Kelly, Facebook's first chief privacy officer and previously a candidate for state attorney general, donated $2.4 million to fund Prop 35, according to records compiled by the KCET public television station.