The line is so thin I can’t even see it.
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.
Wouldn’t this entire thing run afoul of “Freedom of association”?
Comment by Scott Jacobs — 3/2/2010 @ 7:14 pm
Aphrael – the first problem with the bill is that its essentially unenforceable. If sex offenders can’t have any association with children at all, then why not permanently incarcerate them, or execute?
If you can’t trust them with a computer (or a cell phone, for that matter, as most modern phones will be equipped with data plans – even paygo phones), what are they doing out of prison?
Comment by Apogee — 3/2/2010 @ 10:58 pm
Considering that not all “registered sex offenders” have been convicted of felonies, this seems especially unworkable.
Comment by Kevin Murphy — 3/3/2010 @ 8:03 am
By the way aphrael, it’s quite likely that many phone calls transit the “internet.”
And what does “the internet” mean, anyway? Bet you no two legislators gives the same answer.
Comment by Kevin Murphy — 3/3/2010 @ 8:05 am
Kevin, along similar lines, the phrase “Internet Web site” implies the existence of a “Web site” which is not on the internet.
As an engineer I find the phrase “web site” maddeningly imprecise in any event.
Comment by aphrael — 3/3/2010 @ 9:16 am
Well, there are web sites that are private (“intranet”), like at a large company for employee benefits.
Comment by Kevin Murphy — 3/3/2010 @ 9:37 pm
This subject reminds me of a recent article on a 102-year-old judge who is still working. His longevity gave him some valuable perspective into recurring problems like privacy issues:
Comment by DRJ — 3/4/2010 @ 7:26 pm
In the meantime, the Pyrite State releases child molesters and doesn’t keep track of them . . . until they kill someone:
Comment by The disgusted Dana — 3/6/2010 @ 5:29 pm
Thank you for that comment, DRJ. It reminds me that in my childhood my grandmother still had a “party line”, and often you would pick up the phone to find another household on the line and needed to hang up and wait.
“Back in those days” I wonder if it was harder or easier for a child predator to stay in the shadows.
Comment by MD in Philly — 3/6/2010 @ 6:41 pm
I think about that, too, MD.
Per capita, I think there is as much evil in the world now as there was in the past. However, I also think there were more people willing to take steps to stop that evil in the past than there are now. Self-help has been replaced by law enforcement, so in that sense it may be easier for predators today than in the past.
Similarly, today’s Americans seem to rely more on physicians than home remedies, and they seem more willing to turn to lawyers and lawsuits for answers to their problems. This isn’t all bad — we’re obviously better off having professionals in our lives — but my pet peeve is that instead of letting professionals educate us on how to do things better for ourselves, we too often choose to turn over our decision-making to professionals. As a result, we’ve created a society of people who can’t do much for themselves.
Comment by DRJ — 3/6/2010 @ 7:34 pm
DRJ wrote:
Does that translate into: if the people caught a child molester, they’d have simply hung him from an oak tree?
Comment by The Dana who doesn't mince words — 3/7/2010 @ 6:35 am
Not in my community. We used guns.
EDIT: This is a joke, and I’m not advocating that people should take the law into their own hands.
Comment by DRJ — 3/7/2010 @ 1:36 pm
DRJ wrote:
Given the news story I cited in comment #8, it seems that the people not taking the law into their hands led to at least one young girl’s death.
The perp in that case got only five years, in a plea deal, to spare the 13 year old victim from having to testify. The cost of sparing one teenager from having to testify was another teenager’s life. A 22 year old woman was also assaulted by the perv, and police believe that a 15-year-old who has disappeared was also killed by him, though they’ve not yet found her body.
Comment by The very serious Dana — 3/7/2010 @ 5:44 pm
I haven’t read enough to say but was the Gardner case an example of society failing or the court’s failure?
I think there is a difference between vigilantism and legitimate self-defense and defense of others that comes from catching someone in the act. The former is dangerous to society, to the vigilante whether or not he’s wrong, and an injustice to a wronged person. The latter is what citizens owe each other in a moral world, but I haven’t seen anything that says Gardner was caught in the act by citizens. From what I’ve read, the courts had the burden to deal with him.
Comment by DRJ — 3/7/2010 @ 6:11 pm
I like the sound of your community, and I wish to move there…
Comment by Scott Jacobs — 3/7/2010 @ 7:17 pm
my first phone number was two longs and a short
Comment by quasimodo — 3/8/2010 @ 12:13 pm
I haven’t read enough to say but was the Gardner case an example of society failing or the court’s failure?
From what I’ve read, neither. It was a case of “stuff happens”.
Laws need to be changed so that registered sex offenders are kept away from children
That strikes me as neither possible nor constitutional. Unless by “changed” we mean “sentenced to life in prison without parole”.
Comment by Subotai — 3/10/2010 @ 11:30 am
On the one hand, there is the sentence that a court metes out, presumably tailored to the facts at hand. A child rapist is treated rather more harshly than a woman who sunbathed in the nude.
On the other hand, there is the catch-all, no-due-process and irrespective-of-the-facts blanket punishment meted out (sometimes far after the sentence has been served) to all who fall in a very wide category called “sex offenders.”
Can no one else see the problems with the latter? I mean, we aren’t talking about nuance here….
Comment by Kevin Murphy — 3/10/2010 @ 2:39 pm
Subotai wrote:
I fail to see a problem with this.
Comment by The law-abiding Dana — 3/12/2010 @ 7:55 am
We here in the Golden State are led by a Legislature that can’t, or won’t, deal with the serious issues that it faces such as the chronic budget deficit, so how can we expect it to pay serious attention to criminal matters that can affect the lives of those that live here except through superficial means.
To those in the Legislature, they have looked at a problem, and written legislation; therefore, the problem has been dealt with. Whether or not it is effective does not matter, as they will be off to another problem that doesn’t raise a pimple on a knat’s a$$. But, they’ll feel good about themselves; because, if nothing else, we here in CA have an overabundance of self-esteem.
Comment by AD - RtR/OS! — 3/13/2010 @ 11:00 pm
I fail to see a problem with this.
The problem is that it’s not what is being proposed. Conservatives are supposed to be hard-headed and realistic, but there’s a lot of mawkish sentiment driving the proposed policy changes here.
There was a case in the news last year about a female teacher who slept with her underage male students. Should she be sentenced to twenty-five years to life? If not, how do we identify which people should be given those harsher sentences?
There is such a thing as an acceptable level of death. About 40,000 people die each year in auto accidents. We could reduce that number, at a cost, but we deem that doing so is not worth the extra cost.
Are “too many” children/teenagers being kidnapped and murdered each year? It’s not obvious to me that the answer is yes, but it is obvious that many people are not bothering to even ask the question.
Comment by Subotai — 3/15/2010 @ 12:48 pm
“… a female teacher who slept with her underage male students. Should she be sentenced to twenty-five years to life?..”
I think we should poll the parents of those students. I don’t think the answer would be unanimous.
Comment by AD - RtR/OS! — 3/18/2010 @ 12:14 pm