California Senate Bill SB448 Amended / Bill

 BILL NUMBER: SB 448AMENDED BILL TEXT AMENDED IN ASSEMBLY JANUARY 4, 2016 AMENDED IN SENATE AUGUST 18, 2015 AMENDED IN SENATE JUNE 17, 2015 AMENDED IN SENATE APRIL 15, 2015 INTRODUCED BY Senator Hueso (Principal coauthor: Senator Galgiani)  (   Coauthors:   Senators   Hall   and Runner   )   (   Coauthor:   Assembly Member   Mathis  )  FEBRUARY 25, 2015 An act to amend Sections 290.012, 290.014,  and 290.024   290.024, and 290.45  of, and to amend and repeal Section 290.015 of, the Penal Code, relating to sex offenders, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 448, as amended, Hueso. Sex offenders: Internet identifiers. Existing law, the Californians Against Sexual Exploitation Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election (CASE Act), requires a person who is subject to the Sex Offender Registration Act  (the Act)  to list any and all Internet identifiers established or used by the person and any and all Internet service providers used by the person on his or her sex offender registration. The CASE Act requires a person subject to sex offender registration to send written notice of any addition of, or change to, an Internet identifier or Internet service provider to the law enforcement agency with which he or she is currently registered within 24 hours. Existing case law currently enjoins the application of the above provisions of the CASE Act through the imposition of a preliminary injunction on the grounds that these provisions violate the First Amendment to the United States Constitution. The CASE Act allows its provisions to be amended by a statute in furtherance of its objectives passed in each house of the Legislature by a majority vote of the membership. This bill would state the intent of the Legislature to amend the CASE Act to further its objectives. The bill would delete the requirement that a person subject to sex offender registration list on his or her sex offender registration all Internet service providers used by him or her.  The bill would require a person subject to sex offender registration for a crime where the use of the Internet was essential to the commission of the crime to list only those Internet identifiers actually used to participate in online communications, as specified. The bill would require the registrant to send written notice of any addition of, or change to, an Internet identifier to any law enforcement agency with which he or she is currently registered within 5 working days. The bill would authorize a law enforcement agency to which this information has been submitted to make the information available to another law enforcement agency for the sole purpose of preventing or investigating a sex-related crime, a kidnapping, or human trafficking, and would prohibit a law enforcement agency from disclosing this information to the public. The bill would authorize the Attorney General to disclose the information to another person if the Attorney General determines, based on specific, articulable facts, that the disclosure is likely to protect members of the public from sex-related crimes, kidnappings, or human trafficking, and the person to whom the disclosure is made signs an oath, as specified.   The bill would require   a person who is convicted of a felony on or after January 1, 2016, requiring registration pursuant to the Act, under any one of specified circumstances, including when the person used the Internet to collect any private information to identify a victim of the crime to further the commission of the crime, to register his or her Internet identifiers, as defined, and to send written notice to the law enforcement agency or agencies with which he or she is currently registered when he or she establishes or changes an Internet identifier within 30 working days of the addition or change, as specified. The bill would require a law enforcement agency to which this information has been submitted to make the information available to the Department of Justice. The bill would require a designated law enforcement entity to only use an Internet identifier submitted pursuant to these   provisions, or to release that Internet identifier to another law enforcement entity, for the purpose of investigating a sex-related crime, a kidnapping, or human trafficking. The bill would prohibit a designated law enforc   ement entity from disclosing or authorizing persons or entities to disclose an Internet identifier submitted pursuant to these provisions to the public or other persons, except as required by court order.  The bill would make other technical, nonsubstantive changes. Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of the Legislature to further the objectives of the Californians Against Sexual Exploitation Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, by amending its provisions to conform with the requirements of the court in the case of Doe v. Harris (Case numbers 13-15263 and 13-15267). SEC. 2. Section 290.012 of the Penal Code is amended to read: 290.012. (a) Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (b) of Section 290. At the annual update, the person shall provide current information as required on the Department of Justice annual update form, including the information described in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 290.015. The registering agency shall give the registrant a copy of the registration requirements from the Department of Justice form. (b) In addition, every person who has ever been adjudicated a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code, shall, after his or her release from custody, verify his or her address no less than once every 90 days and place of employment, including the name and address of the employer, in a manner established by the Department of Justice. Every person who, as a sexually violent predator, is required to verify his or her registration every 90 days, shall be notified wherever he or she next registers of his or her increased registration obligations. This notice shall be provided in writing by the registering agency or agencies. Failure to receive this notice shall be a defense to the penalties prescribed in subdivision (f) of Section 290.018. (c) In addition, every person subject to the Act, while living as a transient in California, shall update his or her registration at least every 30 days, in accordance with Section 290.011. (d) No entity shall require a person to pay a fee to register or update his or her registration pursuant to this section. The registering agency shall submit registrations, including annual updates or changes of address, directly into the Department of Justice California Sex and Arson Registry (CSAR). SEC. 3. Section 290.014 of the Penal Code is amended to read: 290.014. (a) If any person who is required to register pursuant to the Act changes his or her name, the person shall inform, in person, the law enforcement agency or agencies with which he or she is currently registered within five working days. The law enforcement agency or agencies shall forward a copy of this information to the Department of Justice within three working days of its receipt.  (b) (1) If any person who is required to register pursuant to the Act for a crime where the use of the Internet was essential to the commission of the crime adds or changes an Internet identifier, as described in Section 290.024, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within five working days. Each person to whom this paragraph applies at the time this paragraph becomes effective shall immediately provide the information required by this paragraph within five working days.   (2) (A) A law enforcement agency to which an Internet identifier is submitted pursuant to this subdivision, Section 290.012, or Section 290.015 shall make the Internet identifier available to the Department of Justice.   (B) Except as provided in subparagraph (A), a law enforcement agency to which an Internet identifier is submitted pursuant to this subdivision, Section 290.012, or Section 290.015 may only release that Internet identifier to another law enforcement agency for the sole purpose of preventing or investigating a sex-related crime, a kidnapping, or human trafficking.   (C) Notwithstanding Sections 290.45 and 290.46, a law enforcement agency shall not disclose an Internet identifier submitted pursuant to this subdivision, Section 290.012, or Section 290.015 to the public, except that the Attorney General may disclose an Internet identifier to another person if the Attorney General has determined, based on specific, articulable facts, that the disclosure is likely to protect members of the public from sex-related crimes, kidnappings, or human trafficking, and the person to whom the disclosure is made signs an oath promising to use the information only for the identified purpose, to maintain the confidentiality of the information, and to refrain from disclosing the information to anyone who has not been granted access to the information by the Attorney General.   (b) If any person who is required to register Internet identifiers pursuant to Section 290.024 adds or changes an Internet identifier, as defined in Section 290.024, the person shall send written notice by mail of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 30 working days of the addition or change. The law enforcement agency or agencies shall make the information available to the Department of Justice.  SEC. 4. Section 290.015 of the Penal Code, as amended November 6, 2012, by initiative Proposition 35, Section 12, is amended to read: 290.015. (a) A person who is subject to the Act shall register, or reregister if he or she has previously registered, upon release from incarceration, placement, commitment, or release on probation pursuant to subdivision (b) of Section 290. This section shall not apply to a person who is incarcerated for less than 30 days if he or she has registered as required by the Act, he or she returns after incarceration to the last registered address, and the annual update of registration that is required to occur within five working days of his or her birthday, pursuant to subdivision (a) of Section 290.012, did not fall within that incarceration period. The registration shall consist of all of the following: (1) A statement in writing signed by the person, giving information as shall be required by the Department of Justice and giving the name and address of the person's employer, and the address of the person's place of employment if that is different from the employer's main address. (2) The fingerprints and a current photograph of the person taken by the registering official. (3) The license plate number of any vehicle owned by, regularly driven by, or registered in the name of the person.  (4) If the person is required to register for a crime where the use of the Internet was essential to the commission of the crime, a list of any and all Internet identifiers used by the person for communicative purposes, as defined in Section 290.024.   (4) A list of all Internet identifiers actually used by the person, as required by Section 290.024.  (5) A statement in writing, signed by the person, acknowledging that the person is required to register and update the information in paragraph (4), as required by this chapter. (6) Notice to the person that, in addition to the requirements of the Act, he or she may have a duty to register in any other state where he or she may relocate. (7) Copies of adequate proof of residence, which shall be limited to a California driver's license, California identification card, recent rent or utility receipt, printed personalized checks or other recent banking documents showing that person's name and address, or any other information that the registering official believes is reliable. If the person has no residence and no reasonable expectation of obtaining a residence in the foreseeable future, the person shall so advise the registering official and shall sign a statement provided by the registering official stating that fact. Upon presentation of proof of residence to the registering official or a signed statement that the person has no residence, the person shall be allowed to register. If the person claims that he or she has a residence but does not have any proof of residence, he or she shall be allowed to register but shall furnish proof of residence within 30 days of the date he or she is allowed to register. (b) Within three days thereafter, the registering law enforcement agency or agencies shall forward the statement, fingerprints, photograph, and vehicle license plate number, if any, to the Department of Justice. (c) (1) If a person fails to register in accordance with subdivision (a) after release, the district attorney in the jurisdiction where the person was to be paroled or to be on probation may request that a warrant be issued for the person's arrest and shall have the authority to prosecute that person pursuant to Section 290.018. (2) If the person was not on parole or probation or on postrelease community supervision or mandatory supervision at the time of release, the district attorney in the following applicable jurisdiction shall have the authority to prosecute that person pursuant to Section 290.018: (A) If the person was previously registered, in the jurisdiction in which the person last registered. (B) If there is no prior registration, but the person indicated on the Department of Justice notice of sex offender registration requirement form where he or she expected to reside, in the jurisdiction where he or she expected to reside. (C) If neither subparagraph (A) nor (B) applies, in the jurisdiction where the offense subjecting the person to registration pursuant to this Act was committed. SEC. 5. Section 290.015 of the Penal Code, as amended by Section 17 of Chapter 867 of the Statutes of 2012, is repealed. SEC. 6. Section 290.024 of the Penal Code is amended to read: 290.024. For purposes of this  chapter,   chapter:   "Internet identifier" means an electronic mail address, user name, screen name, or similar identifier actually used to participate in online communications, including, but not limited to, Internet forum discussions, Internet chat room discussions, emailing, instant messaging, social networking, or similar methods of communicating online. For the purpose of this chapter, an "Internet identifier" does not include Internet passwords, or any electronic mail address, user name, screen name, or similar identifier used solely to read online content, or solely for transactions with a lawful commercial enterprise or government agency concerning a lawful commercial or governmental transaction with that enterprise or agency.   (a) A person who is convicted of a felony on or after January 1, 2016, requiring registration pursuant to the Act, shall register his or her Internet identifiers if a court determines at the time of sentencing that any of the following apply:   (1) The person used the Internet to collect any private information to identify a victim of the crime to further the commission of the crime.   (2) The person was convicted of a felony pursuant to subdivision (b) or (c) of Section 236.1 and used an electronic communication device, as defined under subdivision (b) of Section 653.2, to traffic a victim of the crime.   (3) The person was convicted of a felony pursuant to Chapter 7.5 (commencing with Section 311) and used an electronic communication device, as defined under subdivision (b) of Section 653.2, to prepare, publish, distribute, send, exchange, or download the obscene matter or matter depicting a minor engaging in sexual conduct, as defined in subdivision (d) of Section 311.4.   (b) For purposes of this chapter:   (1) "Internet identifier" means any electronic mail address or user name used for instant messaging or social networking that is actually used for direct communication between users on the Internet in a manner that makes the communication not accessible to the general public. "Internet identifier" does not include Internet passwords, date of birth, social security number, or PIN number.   (2) "Private information" means any information that identifies or describes an individual, including, but not limited to, his or her name; electronic mail, chat, instant messenger, social networking, or similar name used for Internet communication; social security number; account numbers; passwords; personal identification numbers; physical description; physical location; home address; home telephone number; education; financial matters; medical or employment history; and statements made by, or attributed to, the individual.   SEC. 7.   Section 290.45 of the   Penal Code   is amended to read:  290.45. (a) (1) Notwithstanding any other  provision of  law, and except as provided in paragraph (2), any designated law enforcement entity may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person. (2) The law enforcement entity shall include, with the disclosure, a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders. (3) Community notification by way of an Internet Web site shall be governed by Section 290.46, and a designated law enforcement entity may not post on an Internet Web site any information identifying an individual as a person required to register as a sex offender except as provided in that section unless there is a warrant outstanding for that person's arrest. (b) Information that may be provided pursuant to subdivision (a) may include, but is not limited to, the offender's name, known aliases, gender, race, physical description, photograph, date of birth, address, which shall be verified prior to publication, description and license plate number of the offender's vehicles or vehicles the offender is known to drive, type of victim targeted by the offender, relevant parole or probation conditions, crimes resulting in classification under this section, and date of release from confinement, but excluding information that would identify the victim.  It shall not include any Internet identifier submitted pursuant to this chapter.  (c) (1) The designated law enforcement entity may authorize persons and entities who receive the information pursuant to this section to disclose information to additional persons only if the entity determines that disclosure to the additional persons will enhance the public safety and identifies the appropriate scope of further disclosure. A law enforcement entity may not authorize any disclosure of this information by  its placement   placing that information  on an Internet Web  site.   site, and shall not authorize disclosure of Internet identifiers submitted pursuant to this chapter, except as provided in subdivision (h).  (2) A person who receives information from a law enforcement entity pursuant to paragraph (1) may disclose that information only in the manner and to the extent authorized by the law enforcement entity. (d) (1) A designated law enforcement entity and its employees shall be immune from liability for good faith conduct under this section. (2) Any public or private educational institution, day care facility, or any child care custodian described in Section 11165.7, or any employee of a public or private educational institution or day care facility which in good faith disseminates information as authorized pursuant to subdivision (c) shall be immune from civil liability. (e) (1) Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment pursuant to subdivision (h) of Section 1170. (2) Any person who uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000). (f) For purposes of this section, "designated law enforcement entity" means the Department of Justice, every district attorney, the Department of Corrections, the Department of the Youth Authority, and every state or local agency expressly authorized by statute to investigate or prosecute law violators. (g) The public notification provisions of this section are applicable to every person required to register pursuant to Section 290, without regard to when his or her crimes were committed or his or her duty to register pursuant to Section 290 arose, and to every offense described in Section 290, regardless of when it was committed.  (h) (1) Notwithstanding any other law, a designated law enforcement entity shall only use an Internet identifier submitted pursuant to this chapter, or release that Internet identifier to another law enforcement entity, for the purpose of investigating a sex-related crime, a kidnapping, or human trafficking.   (2) A designated law enforcement entity shall not disclose or authorize persons or entities to disclose an Internet identifier submitted pursuant to this chapter to the public or other persons, except as required by court order.   SEC. 7.   SEC. 8.  The Legislature finds and declares that  Section 3 of  this act, which amends Section  290.014   290.45  of the Penal Code, imposes a limitation on the public's right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: In order to protect the rights afforded by the First Amendment to the United States Constitution, it is necessary that Internet identifier information provided to law enforcement agencies by registerable sex offenders as part of their registration not be made generally available to the public.  SEC. 8.   SEC. 9.  This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to protect the rights afforded by the First Amendment to the United States Constitution while furthering the objectives of the Californians Against Sexual Exploitation Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, at the earliest possible time, it is necessary that this act take effect immediately.