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Social Networking Ban on Sex Offenders Could be Unconstitutional

April 26, 2010

sfgate.com: Bill to ban social networking for sex offenders.
sfexaminer.com: Harris’ social network ban could be unconstitutional.

Sex offenders in California would be barred from using social networking Web sites such as Facebook and MySpace under a proposed law aimed at making the Internet safer for children.

Citing horrific cases in which children were sexually assaulted by men they met online, Assemblywoman Norma Torres, D-Pomona (Los Angeles County) introduced the bill last month, which would make it a crime for Californian’s 63,000 registered sex offenders to use any social networking site. The proposed law defines those as a Web site “designed with the intent of allowing users to build networks or connect with other people and that provides means for users to connect over the Internet.” (which could be virtually any web site which requires a “log-in” or registration)

Assembly Bill 2208 is similar to legislation passed last year in Illinois, but doesn’t go quite as far as a New York state law that additionally requires sex offenders to register their e-mail addresses and online aliases with state authorities, who can then turn over the names to the companies that run the social networking sites. After the New York law passed, 3,500 sex offenders were purged from MySpace and Facebook by the Internet companies.

All of the laws depend to some extent on the assumption that sex offenders will police themselves.

San Francisco District Attorney Kamala Harris, who is sponsoring the measure, acknowledged that the proposed law isn’t a fail-safe measure, but said it will offer a deterrent to sex offenders who do not want to return to jail.
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Is there an argument that District Attorney Kamala Harris’ push to ban sex offenders from social networking Web sites is unconstitutional? At least one legal expert thinks so.

Chris Hoofnagle is the director of the Berkeley Center for Law & Technology’s information privacy programs and an expert in information privacy law.

Social networking sites are primarily designed help people communicate with each other and a ban of sex offenders from them would be overbroad, considering a majority of users of Facebook, for example, are over the age of 18, Hoofnagle said.

“Cutting a class off from a very important communication medium could implicate first amendment issues,” Hoofnagle said. “For instance, what if a law was proposed that sex offenders couldn’t use the telephone, or the mail. I mean that clearly would be overbroad and problematic. Well, social networking sites are the new mail, right?”
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Harris’s logic is dumbfounding. If it is acceptable to take away access to Internet technology from anyone who has committed a sex-related crime, let’s do the same for anyone who has committed a crime against another human (any form of assault, murder, physical abuse, ect.). The facts are these:

1. Enforcing such laws is impossible. Anyone with half a brain can figure out how to create a false user name or secondary email address to register with any social network.

2. Social networking sites who claim to remove sex offenders are simply practicing public relations. Sure, they may find and remove a few of the really stupid ones who register their real names, but most people do not register on these sites with their real full name.

3. As we have written many times in these blogs, it is very rare for any sex offense to occur as a result of meeting a stranger on a social networking site. This is an urban myth. When rare contact is made between teens and strangers, it is sought out by the teenagers. The study “found that children and teenagers were unlikely to be propositioned by adults online. In the cases that do exist, the report said, teenagers are typically willing participants and are already at risk because of poor home environments, substance abuse or other problems”.

4. Research shows that the median age for facebook /myspace is 27/26 years of age respectively. In other words, social networking sites are not the Internet equivalent to children’s playgrounds, as the media would have us believe.

5. Hysteria about these social networking sites has long ago been proven to be overblown.
See our postings “Report Calls Online Threats to Children Overblown”, and “Sex Offender on Social Site = Felony”
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Bill Summary:

This bill would, in addition, make it a misdemeanor for any person
 required to register as a sex offender   who
is on probation or parole for the conviction of a crime that requires
him or her to register as a sex offender  to use any Internet
social networking Web site, as defined  , during that period of
probation or parole if the victim of the offense was   under
18 years of age at the time of the offense or the Internet was used
in the commission of the crime  . The bill would authorize the
person to seek an exception to the prohibition for legitimate
professional purposes by applying through the appropriate parole or
probation supervising agency  when that person is on parole
or probation or by applying through the Department of Justice when
that person is not on parole or probation  . Approval would
be valid for one year, unless revoked. The bill would authorize an
annual application for renewal. By creating a new crime, this bill
would impose a state-mandated local program.

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