Legal Commentary

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. 

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Cross-posted on the California Correctional Crisis blog. Props to Jeremy Seymour for alerting me to this.