Posted by Orin Kerr:
California Sex Offender Website:
[1]Criminal Appeal and [2]Sentencing Law & Policy have posts up on
California's new [3]Megan's Law sex offender locator website. The
website explains:
As a result of a new law, this site will provide you with access
to information on more than 63,000 persons required to register in
California as sex offenders. Specific home addresses are displayed
on more than 33,500 offenders in the California communities; as to
these persons, the site displays the last registered address
reported by the offender. An additional 30,500 offenders are
included on the site with listing by ZIP Code, city, and county.
Information on approximately 22,000 other offenders is not included
on this site, but is known to law enforcement personnel.
Once you have read and acknowledged the disclaimer on the next
page, you may search the database by a sex offender's specific
name, obtain ZIP Code and city/county listings, obtain detailed
personal profile information on each registrant, and use our map
application to search your neighborhood or anywhere throughout the
State to determine the specific location of any of those
registrants on whom the law allows us to display a home address.
Both Jonathan and Doug are puzzled by a particular misdemeanor
provision in the California Code enacted as part of the law:
Any person who is required to register pursuant to Section 290 who
enters the Web site is punishable by a fine not exceeding one
thousand dollars ($1,000), imprisonment in a county jail for a
period not to exceed six months, or by both that fine and
imprisonment.
Doug asks whether the law "breaks new ground simply by making it a
crime for certain people to access a publically-available website."
Unfortunately, probably not. The federal government and all 50 states
have laws that prohibit "unauthorized access" and "exceeding
authorized access" to computers. One of the big questions raised by
these laws is whether they are triggered only when a user bypasses
some kind of password gate, or whether they are triggered when a user
uses the computer in breach of some condition of entry set up by the
computer owner/operator. The former approach requires some kind of
"breaking in" to the computer to trigger liability, but the latter
does not.
In [4]a recent law review article, I argue that the former is the
right interpretation, and that the latter approach may render the
statutes constitutionally overbroad or void for vaguness (see p.
1658-60). At the same time, a number of courts have taken the latter
approach in civil cases, even if none have yet had the opportunity to
apply it to criminal cases. Because courts generally apply the same
precedents in the civil and criminal contexts, however, there is at
least some precedent for the view that any computer owner can make it
a crime for anyone to access their publically-available website simply
by setting conditions of entry accordingly. It's a bad rule, for
reasons explained at length in the article, but unfortunately not
entirely without precedent.
References
1. http://www.crimblawg.com/2004/12/sexoffender_reg.html
2.
http://sentencing.typepad.com/sentencing_law_and_policy/2004/12/noteworthy_and_.html
3. http://www.meganslaw.ca.gov/
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
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