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Prop 35 Court Date [updated with audio]

Prop. 35 case has a court date on September 10 at the 9th Circuit Court of Appeals.  The topic is whether the current preliminary injunction was properly granted.  More information / documents

Sept 9: Court to Hear Arguments on Right to Anonymous Speech in Prop. 35 Case 

September 9 / EFF: The Ninth Circuit Court of Appeals in San Francisco will hear oral arguments Tuesday in Doe v. Harris, EFF’s challenge to California’s Proposition 35, which requires registered sex offenders to turn over all of their Internet identifiers and service providers to local law enforcement authorities.

In November 2012, California passed Prop. 35 through ballot initiative. The day after the election, we brought a lawsuit with the ACLU of Northern California, challenging parts of the initiative as violating the First Amendment. The court granted a temporary restraining order later that day and, in January 2013, granted a preliminary injunction blocking enforcement of the law after finding we’d shown a substantial likelihood that the challenged portions of Prop. 35 were unconstitutional. Full Article

Listen to the oral argument (Sept 10)

Join the discussion

  1. Robert Curtis

    Anyone venture to guess what the ruling might be? All challenges against a registrants rights to be online has been thrown out or ruled against thus far.

    The odd thing about being under the registry umbrella is rights on these citizens can and have been violated with ease and without much question.

    The sex offender registry in any form is a form of LIVING DEATH it is Evil and it is Wrong, because these people have their addresses listed for anyone to look up to come over and kill them. Where are we? In Nazi Germany?

    With the rise of criminals being released into society who’s to say that a institutionalized criminal wouldn’t kill a registered sex offender to gain respect before going back home to prison?

    Wouldn’t this person be thought of as an honorable respectful individual for killing a sex offender? Absolutely!! So, about the registry not being punitive. What say you?

    • Jason Shelton

      All challenges against a registrants rights to be online has been thrown out or ruled against thus far.

      Not true. Indiana, Nebraska and Louisiana have all won challenges to online restrictions. I’m sure California will say that 35 is not a restriction on us, but a public safety concern.

      If 35 does somehow pass, I plan to change my passwords every day. I hope everyone else will too, that way they get inundated with so many password change notifications that they give up. If we do it right, it could be a “Denial of Service” attack of their own making.

      Jason

      • leaglebeagle

        I do not have the text in front of me right now, but I do not think that Prop 35 requires passwords to be provided. The requirements say “online identifiers” and Service Providers.

        Nevertheless, this was one of those great ideas that appeals to the masses but no thought is given to execution. The only parameter is that a new / modified online identifier must be reported within 24 hours. Should Prop 35 indeed pass, everyone could make up a new name (this site, for example, and many others allows anyone to post under any name, any time of the day, thus establishing an online identifier with minimal effort), and make a comment. Then submit it (in person or registered letter) to the authorities (where exactly? The local PD?). Insist on written confirmation. Demand to see the assembled list during the annual registration visit. Etc etc.

        But it is not yet passed, so no need to get a bee in ones bonnet.

        “The best way to repeal a bad law is to strictly enforce (adhere to) it.” – Abraham Lincoln

  2. Brubaker

    A HomeRun is a HomeRun …federal judge has already made
    that support and defense of the Constitution ruling…..its a
    HomeRun for the Constitution …..free speech is a fundamental Right…….that failure proposal in prop 35 tried
    to force you against your will to give info that would have to
    gone through a search warrant if crime involved …….and your freedom of speech criminal if you don’t give info ….
    Support and defend the Constitution ….thank GOD….a federal judge has done that….thank you.

  3. Painted Bird

    This provision of 35 did not make any sense to me at first. I am sure the FBI can easily get a court’s permission to read someone’s e mails if there is suspected child abuse. With the NSA disclosures I guess at the real purpose of this proposition, clothed in the issue of sex trafficking. Maybe this was the main reason for the proposition, but would not have gained so much support if brought up on its own. It needed to piggy back on an issue that is hot in the news. Now they can say that 80 of the people agree with warrantless searches on a whole class of Americans. To get back to the point. With this provision the authorities can bypass the courts and at there own discretion monitor anyone’s communication because they will have an identifier. And getting this authority, if this appeal succeeds, what is next, requiring those convicted of drug violations to give their identifiers. Tax dodgers? What have you. Everyone should be concerned about this provision of 35, even if they hate us bogeymen. They should also be concerned about the propaganda campaign that led up to this.

  4. Painted Bird

    Re last comment: 80 percent of voters. I wish it was just 80 people.

  5. eric knight

    First, let’s get some perspective. This decision, if it is in our favor, will be the biggest victory for Internet rights for RSO’s in the country. The main reason is that other states have different degrees of restrictive activity. North Carolina, for instance, prohibits social network activity of any type, while Louisiana requires registrants to post their address and other personal information on any site they use.

    Finally, the federal decision in Chicago that prohibited the state of Indiana from imposing an Internet ban on registrants there was a good victory.

    But in all these states, they have to turn in all email identifiers, and in most cases websites that they control. If we win in California, we will surpass these states in relative Internet freedom. The only restriction we will have is that registrants are prohibited from looking up other registrants on the Megan’s Law site.

    But the magnitude of this win would resonate far past our state borders.

    And THAT’S why I’m wondering what influence Chris Kelly has with the 9th Circuit. The entire decision depends on which three judges hear the case. Hopefully, they will look at the Constitutional issue and not the political issue, but with Doe v. Harris, I’m not too certain.

  6. J

    Does Janice have any thoughts on how this will go down?

  7. MN

    After this is defeated, they will revise the law and pass another version. The threat to your freedom and those of our friends and loved ones is far from over. Sex offenders are low-hanging fruit and will be picked at every turn because politicians need to look tough on crime, big on public safety, and like they’re doing something besides leeching off the public dole.

    • Eric Knight

      I don’t think so. The legislature never did anything with the law. The only way it was included was because it was pushed through the initiative process, which bypasses the legislature and executive branch, and in fact was actually hidden in a law that ostensibly wanted to stop human trafficking, which was already a major felony.

      That said, does anyone know which three judges will be ruling on this law? Those three judges have sway on every registrant’s life in California with their decision.

  8. td777

    Does anyone know yet how this went?

  9. Eric Knight

    Audio is here! Not sure if they will have the video later.

    http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011287

  10. Eric Knight

    Coincidentally, one of the judges in this case has ruled on another case regarding Internet privacy of emails. Google Street maps had kept user names and passwords that it collected from wireless sources when they did their street mapping. One of the judges in the case, Jay Bybee, who also is one of the three judges in our case, had come out strongly against the company.

    http://ca.news.yahoo.com/google-loses-bid-dismiss-lawsuit-175903277.html

    Relevant quote from the story:

    Writing for a three-judge panel, Circuit Judge Jay Bybee said Wi-Fi communications did not qualify as a “radio communication,” or an “electronic communication” that was “readily accessible to the general public,” such that Google deserved an exemption from the Wiretap Act.

    “Even if it is commonplace for members of the general public to connect to a neighbor’s unencrypted Wi-Fi network,” Bybee wrote, “members of the general public do not typically mistakenly intercept, store, and decode data transmitted by other devices on the network.”

    He asked some pointed questions along the same lines in our case. Hopefully, this bodes well. NOTE: Bybee is a George W. Bush appointee, and is the only republican-nominated judge in the three-judge panel.

    I feel like I can breathe a *little* easier, but then again, I’m looking for any straw in a haystack as big as Montana.

  11. Joe

    I do not know the first thing about proceedings like this, but I listened to the whole thing and come away thinking that the ACLU lawyer did quite a good job.

    The impertinence of the State lawyer (the second one) claiming it is really no big deal because this information has been collected for years now and there has not been any prosecution or complaint about mishandling of information. Of course, since there was NO LAW in place there is also no opportunity for arrest and prosecution. And they probably knew better not to leak anything to anyone.

    He is making it sound all benign, when all I heard was an admission that the government has been harvesting this information illegally for years!

    Seriously, how many people have provided this information thinking they HAD to?? Did anyone know to say “Nah, I don’t think so”?

    @Eric Knight – thanks for your running commentary. What is next? How long typically for a decision?

    • Eric Knight

      I’m not sure how much time will pass. I suppose I can look at a bunch of decisions, find out when their arguments were made, and come up with a median. I can do that a bit later.

      One of the things that struck me is that one of the judges made a comment with regard to the “post-Snowden” world, regarding the current situation with the NSA. This can only help our cause.

      • Tired of hiding

        Actually that could be a bad thing actually…I mean, if the thinking is that we have ALL already been actively monitored then what is wrong with even more intense monitoring of known criminals (RSO)? It actually could be very bad for us…

        • Eric Knight

          The context of how the argument even came out was a rebuke to the state’s argument, and certainly not one that would give an indicator, to me, that the judges would approve of such vast government spying on citizens. I think it’s far more positive than negative for us.

          That said, I’m looking for the first prosecutor in a sex offender case to publicly subpoena the NSA for all email, phone, and Internet usage records of registrants. I’m surprised it hasn’t happened yet, as it would actually boost the “political street cred” prosecutors hold with sheeple.

  12. Ron

    I’ve never been asked for any online info, except last year I think they asked if I had a Facebook account, which I don’t since it’s against Facebook’s Terms of Service. And I don’t think it’s a good idea for any RSO to willingly place any additional public info in cyberspace.

    • Anonymous

      I created a twitter account and used it to tell half thruths and full lies for over a year. Just a couple of weeks ago or so, someone called law enforcement to report i was traveling. In reality, i hadn’t even left. That’s because i stated on my twitter account that i was traveling. Because “i didn’t report” it, i found myself on the receiving end of a pretty serious legal mess. I was forced to register in the state i was visiting and i had nothing but trouble getting answers from the source registry people.

      One thing i do know, that law enforcement believes anything said online. They do in my case. I am terrified now that anyone can say anything about my online, causing the cops to come looking for me. This amounts to nothing more than high levels of stress from threats of arrest and constant intimidation.

    • Joe

      If you had a Facebook account (in spite of Facebook’s Terms of Service) what are the chances you would have reported it, asked under the “color of authority” in the setting of the annual registration visit.

      Fact remains this information was solicited and collected without any authority whatsoever.

  13. Janice Bellucci

    According to the ACLU, the hearing went well. A decision is expected in about three months. If the court decides in our favor, an appeal is expected. If the court decides against us, the ACLU will determine whether or not to appeal based upon the reasons given by the court.

    • Eric Knight

      You do know that there is only one court to appeal to from the 9th Circuit… the US Supreme Court. They may end up taking this one, because a 9th circuit decision applies to ever state and territory touching the Pacific, every state touching one of THOSE states, and Montana.

      I wonder what type of secret communication is going on with Chris Kelly and Judges Shroeder and Bybee. This is going to take one HELL of a bribe “think of the CHILDREN!!” plea.

  14. Painted Bird

    I just did my annual check in with Big Brother (this time it was Big Sister). I noticed on the form there was a line for Internet identifiers. She didn’t ask me for them, though.

    • Joe

      The field asking for online identifier should be non-existent or blacked out on the form. From the Megan’s Law web site (the part that I think is okay to look at – I think).

      ATTENTION: FEDERAL COURT ENJOINS COLLECTION OF E-MAIL AND SOCIAL NETWORKING INFORMATION ON REGISTRATION FORMS.

      On January 11, 2013, a federal court enjoined the Attorney General and law enforcement agencies from collecting information pertaining to e-mail addresses, internet service providers, and social networking/screen names on sex offender registration forms. These fields will not appear on the 2013 DOJ registration forms (DOJ forms 8047, 8102) which are about to be released. This injunction is in effect until the lawsuit challenging these provisions of Proposition 35, the Californians Against Sexual Exploitation (CASE) Act, is decided or until further notice. (John Doe v. Kamala Harris, Northern District of California No. C12-5713 TEH). Registering law enforcement agencies should black out these fields on the 2012 forms, and should not collect this information until further notice

  15. Painted Bird

    No, the field wasn’t blacked out on the form, although it might have been a 2013 form. Guess they were hoping I would volunteer that information.
    As for the NSA, I remember Snowden saying that it collects all communications, but one needs a personal email to read an individual’s communications. He used the example of having the ability to read all the President’s communications, if he had a personal email address for him. It sounds like they have a huge library of books without covers, and how are you going to find War and Peace, except by randomly opening billions of books, one at a time, that seem a likely size. They wouldn’t ask for the key if they already had it.

  16. Eric Knight

    Another scathing review! Maria Dinzeo of the Courthouse News Service highlighted several key arguments. Two judges were especially harsh on the state’s lawyer.

    The article is called “‘Post-Snowden Era’ Audit of CA Sex-Offender Monitoring”.

    http://www.courthousenews.com/2013/09/11/61061.htm

    NOTABLE QUOTES:

    First, a blowback from Judge Jay Bybee (the BUSH judge):

    At an appellate hearing Wednesday, Deputy Attorney General Robert Wilson noted that California has been collecting information on sex offenders since November 2012, with no incidents of retaliation by police or suppression of free speech.
    “There’s no getting around the fact that California has been collecting this information form tens of thousands of registrants for a year and a half, with none of the problems that plaintiffs complained about,” Wilson said.

    Judge Jay Bybee interjected: “It’s very difficult to quantify chilling, isn’t it?

    “We’re dealing in the post-Snowden era where we’re wondering if all of our Internet communications are being monitored by the NSA,”

    Next up, from Judge Mary Shroeder:

    “That’s true of all of us – that just because we haven’t been sex criminals in the past, that we might not be in the future,” Schroeder said. “I don’t see how that the sex criminal [act] itself is a predictor of use of the Internet.”

    From the actual audio, I did not sense that these questions were asked in a “Devil’s Advocate” manner when judges wish to test the mettle of an argument. The way the judges responded, to me, were tinged with amazement and shock. Now, it’s just an opinion, but I have to contend that the amici curiae presented to the court from individuals on our side had a lot to do to prepare the judges for this clash.

  17. Eric Knight

    Legal question on jurisdiction: If the decision comes out in our favor, does this apply to all states, territories, and commonwealths in the 9th Circuit? In other words, if any of those states require any Internet identifiers or other restrictions, do they have to remove them and, barring US Supreme Court reversal, never be allowed to enforce Internet restrictions in the future?

    Other states, territories, or commonwealths in the jurisdiction include Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, North Mariana Islands, Oregon, and Washington.

  18. Painted Bird

    Yeah, and I don’t see how monitoring registrants, who have less than 2 percent recidivism and who knows how low it would be if you just count repeat offenses using the internet, can halt trafficking. I would think that any trafficker would not have any registrants on the payroll. It would make them vulnerable to surveilance. So we would all pay law enforcement to play CSI in cyberspace, while active criminals breathe a sign of relief.

  19. Rocky Graciano

    From some comments I’ve seen earlier, regarding Facebook’s terms of service, I did note in the “language”, it said: “You will not use Facebook if you are a convicted sex offender”. Well, OK; but it didn’t say anything about “ex convicted” sex offenders (even “ex con” is defined as formerly convicted), or registered sex offenders. Since it’s all based on technical definitions, it’s more to slop in the language rather than ambiguity when it comes to Facebooks terms of use.

  20. Bill

    One thing I think should of been in the ACLU arguments.If you are married and have kids, grand kids etc…Who is to say when they come over they don’t log in to their accounts etc. Now are we guilty for not reporting all their identifiers? I must have 200 accounts and my wife has many. most are very old and I don’t even remember them such as “Pep Boys, Auto zone etc. I have closed accounts that would still show up and i don’t even remember the user names. So I get to go to prison if my Gran child logs in to their Facebook and I don’t claim it? This makes no sense. We have many children and grand children. How do we control that? If you go to Starbucks and use Wi Fi how do you even know who the ISP is? That law is stupid to say the least. I can see it now…You get arrested because a family member created an account. You may not go to prison but it costs you thousands of dollars to fight it. what about the rights of the family members in the house? they get monitored and have done nothing. i wish the ACLU would of made this point. You know…They should just put us in stocks on Main street once a year and let people throw fruit at us as this is what this has come to. We are back to mid evil times…Does it ever end. had i of known this i never would of taken a plea bargain I did no time and 3 years unsupervised probation and was told the registration would end after probation. Over 20 years now and it just doesn’t end. They find innocent people all the time convicted of a sex offence with DNA they didn’t have. Sorry for venting but it is just too much!!!!

  21. Joe

    Is there any news on this case? This made me think of it – a glimpse into the future? Felony? And a five month investigation? Really???? My tax dollars at work, lol.

    “After a five-month investigation, Madisonville Police discovered that Emerson had two unregistered e-mail addresses and a Facebook page. Emerson was arrested on two counts of providing misleading information to the sex offender registry, a class D felony…”

    http://www.14news.com/story/24213521/hopkins-county-sex-offender-arrested-again

  22. Tired of hiding

    I agree that an update is in order. I think that most of us visit this site for information as up to date information seems to be quite rare. The only time that we hear anything about sex offenders is when yet another restriction is added.

    If this website is to be active in gaining momentum and becoming a focal point for California sex offenders to get information and to join forces, it really NEEDS to be updated much more frequently with what is going on.

    As it is, it seems that a few of us come here…post “what I heard” or “this is what happened when I registered in “X” country”.

    It really only ADDS to the confusion surrounding our problem and doesn’t empower us with REAL information and FACTS.

    Please…can this aspect of this site we improved: It would help individuals and it would help us as a group. We have the numbers if we had a central meeting place for getting REAL information – This site could be that focal point BUT it needs more attention than it is currently being given.

    Thank you

  23. Tim

    I hope we don’t lose. I have no idea of all the information they would want and how I am going to get it to them in 24 hours, especially if I find out on a Friday afternoon that I am going to have to comply. I’ll try to comply, but it will add another layer of stress. Did I get it right? Did I provide the information needed without giving them information they had no right to receive?

  24. Eric Knight

    I was under the assumption that the decision was going to be made at this time, and I’m a bit concerned.

    The problem is that if you listen to the oral arguments, it’s practically a slam dunk win for our side, particularly with some of the unsolicited statements by some of the justices. My concern is that this decision should have been rendered in December, as the original estimate time was given.

    But with the extended time, I wonder if the court is now trying to backtrack off from its original signal about an easy win for our side, and if they are trying to justify the state’s position. In other words, they KNOW the law is unconstitutional, and should fall flat on its ugly face. But, they ALSO know that most other states have laws that are as oppressive or even MORE oppressive, such as New York and North Carolina, which criminalizes usage of social networking sites like CARSOL.org. In short, they are far more concerned with the sheeple’s reaction than adhering to constitutional law, much in the same way the Missouri Supreme Court wordsmithed a park ban on registrants.

    Finally, consider the national consequences of a win by our side. Registrants in other states will now be able to have demonstrable court rulings that indicate the lack of constitutional authority in their state’s oppressive Internet restrictions. This would significantly potentially advance the chances to being heard in the US Supreme Court, once and for all.

    So there is a lot at stake here, and even though the judges reacted about as aghast at the state’s reach as with any other case, I wonder if the fear factor will reign supreme and toggle their decision to that of unconstitutionality.

  25. Tim

    OK. So I thought a good way to make a little money would be to work online at home doing some type of data entry tasks or crowd sourcing. No interviews, no background checks. I’ve never done anything illegal using and computer. Data is divided up amongst several agents, so the information stays secure. In order to communicate with my superior, I would have to get a special email address, which I will have to disclose, along with the rest, if this court rules for the State. Not only that, but the State will then have the ability to snoop in on what basically the client thinks is a secure work area. They will start checking to see if you are an RSO before you are hired. The job requires no contact or communication with children or anything illegal, but might be just another way to earn a living shot to hell by draconian laws.

  26. Brubaker

    This was on ballot presented to voters as further punishment, so even on its face its unlawful ….they
    cannot put free Americans back into restraint parole
    conditions its unlawful ….they cannot force you to give
    communication info unless every citizen in the state does
    so as well and/or a warrant to search for cause of a crime
    or its unlawful …..you cannot make free speech a crime or
    obstruct free speech or restrain free speech when communication info was not given…its unlawful …its un-Constitutional.

    • Brubaker

      That prop 35 on its face is further punishment ….its in print…….punishment …..presented to voters …….also…
      they are making free speech criminal….subject to arrest….
      also the taking of communication info without warrant for
      cause of a crime …..other Constitutional issues apply as well.

  27. Eric Knight

    OK, it’s February. It’s been 145 days since the oral arguments were given. Every case heard in September and before, most in October, and even some in November have already been decided. Why is the court taking so long with our case??

    I really really hate this. I really do. I have a bad feeling that, even though the judges were very skeptical against the state during the arguments, that they are taking their cues from other states and jurisdictions, and coming up with wordsmithing options so they can cede registrants’ Constitutional rights to that of the sex offender mania fallout.

    I will have to say this: If they decide against us, that would be the biggest disconnect between judicial comments and activity during the oral arguments, and the actual decision, possibly in court history.

    Is there ANY possible way we can get a timetable on the decision? ANY way???

  28. Eric Knight

    I just got word that one of the judges is having issues with their family. That is apparently what’s causing the delay.

  29. JohnDoeUtah

    Keep in mind that it took the 10th Circuit almost 10 months to decide Doe v. Shurtleff, and their ruling flied in the face of SCOTUS precedent – using an exception to strict scrutiny in 1st Amendment jurisprudence that SCOTUS warned should not be used outside of zoning law cases, as it could eviscerate the 1st Amendment.

    • Eric Knight

      That’s a good point, and is a prescient indicator that judges are human and have biases, and are just as prone to cite evidence that supports their bias as opposed to judging all evidence in an unbiased manner.

      But that means this court will have to be a veritable Houdini to side with the state on this one. For instance, many of the arguments by the state that referenced the arguments in the Utah decision drew some of the harshest rebukes by the judges. Of course, EFF and the ACLU were prepared for this for the most part, and easily deflected the (thankfully) very clumsily-argued case by the state.

      In addition, in the 10th Circuit case the judges showed a noticeable sympathy bias toward the state during oral arguments, while the 9th Circuit judges leaned highly toward our side. I would have to say that the briefs, some prepared with the knowledge of the 10th decision in mind, prepared the judges for the actual constitutional violations that are occuring with these laws.

      That said…

      I don’t doubt that their is incredible societal pressure on these three judges to render a verdict in favor of the state. I’m not sure if they can make a “non-decision” type of decision that kicks the arguments to the state of California to decide, and leave existing laws in place for the rest of the 9th Circuit jurisdiction. To me, that would make the most probable “safe” verdict for the court to adjudicate.

      But if the judges make the same decision that the 10th circuit made, that would, without question, represent the biggest disconnect between overt, discernable actions during the oral argument proceedings, and the ultimate opinion in 9th Circuit Court history. I don’t doubt, though, that every loophole and every scant piece of “evidence” is being scrutinized for potential support in ruling against the registrants.

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