Believing that human trafficking is worsened by the internet’s anonymity, the sponsors of California’s Proposition 35 thought they had a simple solution to combatting the problem: require convicted traffickers to register as sex offenders. Then require all individuals on California’s sex offender registry to disclose their online identities and service providers.
The measure passed in the November election with 81 percent voter approval. This isn’t surprising, since Prop. 35 also increases criminal penalties for trafficking, uses criminal fines to fund victim services organizations, and mandates more law-enforcement training on human trafficking. But the Electronic Frontier Foundation and the ACLU of Northern California sued, challenging the constitutionality of the reporting requirements – and this Monday, a federal court will hear arguments about whether it should continue to block the measure’s implementation.
Because in its zeal to restrict free speech online for some, Prop. 35 actually restricts free speech for all.
In a way, making the legal arguments is going to be the easy part. The harder battle is convincing the hearts and minds of those who aren’t on the California sex offender registry to understand the implications of passing such laws. Especially if people believe that the EFF and ACLU, in fighting this measure, are defending pedophiles.
Challenging Prop. 35 isn’t about defending “pedophiles” – not everyone on the registry is a pedophile, let alone a sex trafficker. More importantly, challenging Prop. 35 is really about defending free speech online.
The government needs to keep its hands off internet speech, allowing the web to remain a place where ideas and expression can flow freely. Anonymous speech is an important First Amendment right, and has always been a way to promote a robust exchange of ideas – allowing people to speak their minds freely without worry about retaliation or societal isolation.
This includes even unpopular speech by unpopular speakers.
The right to free speech is not determined by balancing the societal costs and benefits of the speech or speaker, as the Supreme Court emphasized recently. That balancing was already done long ago when our country decided the benefit of restricting the government’s ability to silence people or ideas outweighed the costs. That judgment can’t now be changed just because people don’t like some speech or speakers.
Excluding wholesale a group of people from speaking anonymously questions the judgment of having this robust freedom in the first place. No one will ever agree with every speaker or every message, so everyone must have the ability to participate in online speech.
But it’s not just organizations like EFF and ACLU who should worry about this: You should worry, too. When the government starts gathering online profiles for a large class of people, everyone needs to be concerned. As history shows, what starts as small data collection inevitably grows.
Just consider the evolution of the DNA Act: It now authorizes law enforcement to take DNA samples from anyone in the criminal justice system. When Congress first passed the law over a decade ago, it allowed DNA collection only from people convicted of violent federal crimes like murder. But over time, Congress expanded the law, allowing collection of DNA from individuals convicted of any crime – violent or not. And then Congress expanded it again to require DNA collection from any arrested individual not yet convicted of a crime. In other words: DNA collection now includes people who are still presumed innocent. States soon followed the federal government’s lead, helping to create the massive DNA repository that exists today … almost 10 million samples and growing.
It’s not just organizations like EFF and ACLU who should worry: You should, too.
It’s therefore critical to nip these speech restrictions in the bud before they expand.
Eliminating one group’s ability to speak online sets a very dangerous precedent for everyone. It’s also a serious attack on one of the most fundamental rights of our Constitution, which becomes clear when examining the legal issues of Prop. 35 more closely:
It violates the First Amendment. By eviscerating the right to speak anonymously anywhere on the web, the measure allows law enforcement to capture usernames on sites not remotely connected to criminal activity – like Yelp or Amazon.com. It also eliminates the ability to speak anonymously on newspaper comment sections or political websites. And because it applies to all registrants, and California has a lifetime registration requirement that applies retroactively, Prop. 35 even restricts the speech of individuals whose convictions were years ago. It restricts the speech of those who did not even use the internet to commit their crimes.
It is overbroad and unconstitutional. Laws that prohibit speech are required to be narrowly tailored for their policy goals. But Prop. 35 fails this test miserably because the reporting requirement captures too much speech from too many people. According to the California Attorney General’s estimate, it would affect over 74,000 people who would have to turn over all of their online identifiers, aliases, and usernames to law enforcement.
It has vague definitions. The measure doesn’t clearly specify what “internet service providers” and “internet identifiers” are. Is a registrant required to report only the ISPs they currently use, or every one used throughout his or her lifetime? Does a registrant have to turn over the access code they get at Peet’s Coffee to access free Wi-Fi? Is a registrant who operates an at-home Wi-Fi network for family members an “internet service provider?” It’s impossible to know what the reporting requirements are, yet the punishment for failing to report the information is up to three years in prison.
The government needs to keep its hands off internet speech.
Yes, anonymous speech can lead to uncomfortable and offensive comments – this is probably even more true on the web and with online speech. But that’s the cost of maintaining strong speech rights for everyone. Technology doesn’t change those rights.
Online technology might not even be where the problem lies: Studies have demonstrated that technology-facilitated crimes accounted for only 1 percent of all arrests for sex crimes against children. That same study found that only 4 percent of the people arrested for technology-facilitated crimes against minors were registered sex offenders.
Thinking of Prop. 35 in rational, logical and legal terms – not just emotional ones – leads to one inescapable conclusion: Free speech will be the only casualty in this attempt to stop human trafficking.
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