The Jury Talks Back

3/2/2010

The line is so thin I can’t even see it.

Filed under: California Politics — aphrael @ 2:55 pm

The California Assembly is considering a bill to make it a crime for registered sex offenders to use any social networking site. It’s almost certain to pass; no legislator is going to stand up for the rights of sex offenders, particularly when children might be involved.

The law defines “social network Web site” as “any Internet Web site designed with the intent of allowing users to build networks or connect with other people and that provides means for users to interact over the Internet.”

This definition is, unfortunately, completely unworkable.

The intent of the legislature is clear to anyone who is familiar with the politics: keep sex offenders away from sites like Facebook where children might unwittingly be exposed to them. The fact that it would also prohibit sex offenders from using professional networking sites like LinkedIn is just collateral damage, and not something that we need to worry about too much, both because sex offenders are bad people and because most of them can’t get jobs that would use professional networking, anyhow.

But a literal reading of the words would seem to ban any form of web-based email (webmail being displayed on an internet web site, and being designed to allow users to connect with other people and providing a means for users to interact, via email, over the Internet). In an increasingly email-dependant culture, that’s a highly problematic restriction. It’s so problematic, and so clearly not the intent of the legislature, that the California courts are likely to read the definition more narrowly, allowing email but excluding actual social networking sites, which will end up in practice being defined by something other than the definition in the law.

So the first problem with the bill is that poor drafting creates a result so obviously absurd that it invites courts to step in and redefine the terms in the law.

But the second, bigger problem is that there is no sensible way to draft such a definition.

I mean, it’s one thing to say that Facebook is clearly verboten, but that the web-based interface to Outlook (used in many corporate environments) is ok. But what of gmail? I mean, gmail is email, as long as you don’t enable buzz, so it should be ok … but buzz is self-consciously a facebook lite, and the intent of the legislature is probably to ban it. So are sex offenders allowed to use gmail but required to turn buzz off? How are they supposed to know that? (And if they can’t, does the law really give them fair notice of what conduct is prohibited?)

This problem will only get worse as the technology evolves: google seems to be betting that the future of online conversation is in a blurring of the distinction between social networking, email, and text messaging – and they’ve lost very few such bets in the past. In that world, with the distinction between email and social networking elided, how does a court decide which websites are allowed and which aren’t? I suppose they could develop a “predominent purpose test” which looked to whether the site was predominantly email (like outlook web access) or predominantly social networking, and just draw arbitrary lines in the tough cases. But that will create a brittle, unpredictable system.

On the one hand, the legislature could fix this problem by narrowing its definition. But fundamentally the entire approach seems doomed.


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