Monday, March 8, 2010

New Sex Offender Law Proposal: Restriction from Social Networking Websites

Kamala Harris is proposing a new law that would forbid registered sex offenders from joining or maintaining accounts on social networking websites. Her website explains:

Today, one in five children have been sexually solicited online. Only 25 percent of those children ever told their parents.

Just since 2007, the number of users on social networking sites like MySpace, Facebook, and Bebo has doubled. An estimated 750,000 children between the ages of 8 and 12 use social networking websites, despite many of these sites' prohibition on child users. Many millions more teenagers use social networking websites as one of their primary mechanisms for social interactions with other teenagers or adults. Nearly 80 percent of teen users report that they are not careful about giving out personal information online.

Currently, there is no prohibition for registered sex offenders on using social networking Internet websites. AB 2208 will prohibit any registered sex offenders from using any Internet social networking website, requiring all offenders to sign this prohibition in writing at the time of their registration. A violation of this law would be a misdemeanor punishable by imprisonment in a county jail for a period not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both imprisonment and fine.

If these stats are accurate, this is a grim picture indeed. There is some research out there about how the internet has changed our considerations about victim accessibility and grooming habits. And, according to researchers such as Ilene Berson, there needs to be more awareness of the way in which nonsexual "friending" can seamlessly become sexual grooming. However, resorting to legislation as a solution in this case seems extremely problematic. Rather than resort to cynicism regarding the role of sex offender legislation in electoral campaigns, I think it's more interesting to take this thing at face value and think about the implications. The first thing that comes to mind is a constitutional challenge. Unless some readers believe that potential people subjected to this requirement have a plausible First Amendment argument, I don't think this will practically hold water. Even if one's freedom of expression includes the right to register for Facebook, it is unlikely that any judicial forum in today's political reality will think these rights overweigh the risk to children (assuming the stats are true; I confess I didn't check). Previous challenges to sex offender post-sentence regulation consistently passed constitutional muster, and this one will probably pass it as well.

The more interesting question, to me, is that of enforceability. How can one effectively monitor who does or does not log onto a social networking website? After all, you can register with an alias, and in some cases, join chat rooms as a guest without registering. Facebook doesn't verify your identity or your picture. The only time this might become an issue is if a child complains about being harrassed or propositioned online. Given the underreporting problem mentioned by Harris, this might not yield as much information as law enforcement would like. And when there is a report, the police could investigate and the prosecution could charge with various offenses involving harrassing minors.

Which brings me back to the discussion I didn't want to pursue: given the unenforceability problems, is this a piece of symbolic legislation used as yet another "tough on crime" tool in an electoral campaign? Your thoughts appreciated.

Cross-posted on PrawfsBlawg. Props to Jeremy Seymour for alerting me to this.


Tom said...

I've heard these little 1 in 5 and 25% factoids before and, on their face, I see considerable verifiability problems. (If we take as true that "only 25%", or some minority of children, ever told their parents, how can we know how many in total were solicited? How do we know many "children" (however we define that term, all persons under 18?) are online?) These numbers seem very "truthy" to me.

I think sex offenders in general are one of the more recent candidates for the devils we tend to see out in the dark woods of the American cultural collective unconscious (see, e.g.: witches, communists, drug dealers, terrorists, et cetera ad nauseum). Accordingly, my view is that this is probably mostly if not purely symbolic. Put a proposal that sex offenders be penalized in some way before a candidate for office, what exactly is the downside of their supporting it? Loss of support from the sex offender lobby?

Hadar Aviram said...

I tend to agree that there are no electoral costs in lobbying for more sex offender legislation. And for a candidate who supports community corrections and opposes the death penalty, sex offenders are the "trump card" because they do not tend to generate public sympathy. Maybe this is the punitive "angle" that is meant to compensate for Harris' support of less "tough on crime" and more "smart on crime" policies.

dg4 said...

I will leave a discussion of the constitutional issues to the lawyers. As to the substance of the proposal, like just about all legislation targeting sex offenders, it is extremely over-broad. The category of sex offenders is very large and quite heterogeneous. Regarding the numbers of children solicited on-line, how many of them were solicited by convicted sex offenders? I would wager that many were solicited by peers. What's more, a solicitation is in itself not especially scary. A sensible child is not likely to respond to an invitation from a stranger. The particular appeal of this legislation, I suppose, is that it tries to appeal to parents who cannot easily monitor their children's computer use, and the legislation is costless. It doesn't require the state to do anything. David Greenberg, Sociology Department, New York University

Steve said...

I don't see this measure as punitive, but rather preventative in nature. Moreover, it's a restriction of freedom, but how different is it to say a sex-offender cannot be within a certain distance from schools and saying they can't access social media where there is regular interaction with underage children? To say they are entirely different is to put form over substance. The issues are the same. The internet and social media has changed how people interact but thus-far our protections against abuse have not increased with the technology.

I think sex offenders are generally seen as being in a different category of offenses as compared to other individuals convicted of crimes. Sex-offenders are compulsive in their behaviors, and therefore it does not fit neatly into any criminal theories such as deterrence which make more sense for a bank robber. Rehabilitation for a sex-offender is a life-long process that may be more difficult to overcome than other criminal behaviors.

But beyond punitive and retribution issues, I think as part of any correctional reform there has to be discussions of post-incarceration programs. Just as we would be discussing substance-abuse treatment for parolees, I think we have to think about how to address the compulsive behavior of sex offenders. Tracking and controlling their internet usage should be apart of such a post-incarceration program to help sex-offenders avoid the kinds of behaviors that led to their incarceration.

Without a doubt there's an element of social paranoia here. But realistically social media has dramatically increased the risk of young children interacting with sexual predators. I think we can quibble over the numbers, but I think few can deny that it's a pervasive issue. True, this measure would hardly put a dent in the overall risk, but would certainly deal with the known risks and steer some people towards a healthier lifestyle.

One thought about enforceability is to put software onto sex-offender's computers which would control and track their use of the internet - a sort of "e-parole officer" that for a period of time makes sure a sex offender is not using the internet for predatory purposes. That would get around at least some the issues of aliases and other problems with enforceability. By increasing the protections against abusive behavior for sex-offenders while on parole, we reduce the system's reluctance to release sex-offenders in the first place and thereby serve to reduce prison populations and longer sentences.

Obviously, to a degree internet usage cant be controlled on other computers connected to, for example, free wi-fi, but it would at least provide some protection. And I agree, this proposal is motivated by politics, but it's nevertheless a real issue and if approached sensibly I think some good can come of it.

Zot said...

Steve, your arguments in favor of this bill really do deserve a thoughtfull refutation but I wanted, in this comment, to address the issue of watchdog software you raised. In general it is a bad idea to rely on technological fixes to social problems. That applies here - were such software placed on my system all it would take is a CD or memory stick loaded with a linux distribution, a browser, and email and ftp clients to utterly circumvent it (untraceably, I might add).

Rather than wasting a lot of time and effort chasing after phantoms who may or may not have nefarious goals, why not teach kids and parents to be sensibly safe on the net? Fold such training in with technical help (how do I share files and printers among the computers in my home? How do I make my system boot faster? Where is a good site for learning trig?) and have your schools promote it and you'd have greater safety with less scapegoating.

Steve said...


I definitely see what you are saying, and I sympathize and understand with anyone who has a cautious and critical reaction to the proposed legislation given our society's tendency to view prison as the go-to solution to any social problem. Indeed, I think the larger issues behind this discussion may put people into two camps: 1) People who think the criminal process can be a vehicle for achieving positive goals in society, and 2) People who think the criminal process exacerbates and is at a minimum ineffective at resolving underlying social problems.

However, if I had to characterize myself, I would hope to put myself squarely inbetween those two extremes. I think that in at least some instances the criminal process is a useful tool for authorities and by extension society.

I have two basic reactions to the questions you raised. The first is that I think technology can absolutely be a solution to a social problem. Technology has many transformational attributes (both positive and negative) which affect society. Indeed, we are discussing a social problem which was created by technology. Thus, I don't see why it would be a mistake to look to technology to fix a problem.

Secondarily, I think that it is obviously possible to counteract any technological solution to this problem. However I don't think everyone targeted by these restrictions would be able to use such a solution.

In any event, part of the issue here is that it's difficult for authorities to do anything to prevent sexual abuse prior to the harm of a child. In other words, objectively inappropriate behavior displayed by a sexual offender towards a child might not serve as the basis of criminal liability until it has already harmed a child. Looking at certain photographs, or flirting online, or things of that nature, are difficult to serve as the predicate violation for stopping a sexual predator before they harm a child.

By creating clear rules about how and whether sex offenders may interact with children, it's possible to trigger some criminal liability prior to actual harm.

So what you are creating with this law is a tool that law enforcement could use to create some criminal liability for a sex offender who displays inappropriate behavior towards children but has otherwise not violated any law. More importantly, it would have the effect of increasing the post-incarceration monitoring of sex offenders without necessarily resulting in prison time, but documenting and recording each instance in which inappropriate behavior was demonstrated.

Additionally, just as the police may arrest some individuals for minor violations with the intent of discovering evidence of a more serious violation, this violation could enable police officers to more easily have grounds to thoroughly search a sex offender's computer.

So in essence, I think the "enforceability" argument here is in some instances not accurate. While it may not be a universal fix there will be at least some teeth to this provision.

I hope you have found my arguments constructive, and I certainly thank you for your observations and analysis as well. I look forward to any response you might have.

Anonymous said...

Sexual Predators: NOT an Internet Threat to Kids . Further, in California, even a probation or parole condition must have some nexus to the crime because "a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) The application to those not even on probation or parole reaches much further, and this is not to mention the constitutional right to anonymous speech. All the SCOTUS approved so far was the registry on a limited basis because it was merely already public information. I will file if this becomes law.

Anonymous said...

i understand there should be certain retrictions when it comes to social networking. however, if there are suppose to be age restrictions on the sites then they should punish the children and or parents for lying to get access to those sites as they want to punish others for doing so who have no intention of soliciting children.