A few hours after EFF and the ACLU of Northern California filed a class action lawsuit in San Francisco federal court challenging California's recently enacted Proposition 35, the court issued a temporary restraining order, blocking implementation of the initiative due to the existence of "serious questions" about whether it violated the First Amendment.
Proposition 35 is ostensibly about increasing punishment for human traffickers, but would also require all registered sex offenders in California to turn over a list of all their Internet identifiers and service providers to law enforcement. Leading up to the election, we urged California voters to reject it, worrying this would result in a significant restriction of free speech on the Internet. We weren't alone in criticizing Proposition 35. Newspapers like the Los Angeles Times and the Sacramento Bee spoke out against the initiative too. Unfortunately yet unsurprisingly, California voters overwhelmingly approved the initiative on election night.
Wednesday morning, we filed suit, arguing Proposition 35 violates the First Amendment because requiring people -- even unpopular people -- to give up their ability to speak freely and anonymously chills free speech. Proposition 35 eliminates the ability of a whole class of people -- 73,000 individuals in California -- to speak anonymously online by forcing them to turn over any identifier they use, whether its "Anonymous" or "John Doe" or their real name. Plus, it requires disclosure of information about online accounts unrelated to criminal activity, like Yelp or Amazon.com. And most troubling, it allows the government to monitor and record a wide swath of innocent Internet activity, from a registrant with a fantasy football team to the one who comments on a political discussion group.
While we certainly believe human trafficking is a terrible crime, requiring registrants to turn over online identifiers doesn't combat this issue. Instead, it creates a dangerous slippery slope. Like mandatory DNA collection before it, what begins with sex offenders inevitably expands as law enforcement gets hooked to accessing this online data, and starts demanding more and more of it. The temporary restraining order is is an important first step in ensuring that the First Amendment isn't the casualty of a well intentioned but ultimately overbroad and dangerous initiative.
In stopping the implementation of Proposition 35, the court recognized the "important issues" that need to be considered before the law could go into effect. A hearing is now scheduled for December 17 on whether the court should grant a permanent injunction, striking down the law permanently.
