In the 2012 general election, California voters overwhelmingly approved Proposition 35, a human trafficking ballot initiative, enacting the Californians Against Sexual Exploitation Act (CASE Act), which required that anyone who was a registered sex offender - including people with misdemeanor offenses such as indecent exposure and those whose offenses were not related to internet activity - turn over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites, or at online forums and in internet chat rooms.

On November 7, 2012, the American Civil Liberties Union and the Electronic Frontier Foundation, filed suit in the U.S. District Court for the Northern District of California on behalf of two registered sex offenders and a putative class of all such persons, as well as a website on which sex offender laws are discussed and debated. The plaintiffs sought class certification as well as declaratory and injunctive relief under 42 U.S.C. § 1983 against the State of California. The complaint alleged that the requirements of the law would burden and chill protected speech in violation of plaintiffs' rights under the First Amendment, Due Process Clause, Equal Protection Clause, and Ex Post Facto Clause of the United States Constitution.

The case was assigned to U.S. District Judge Thelton Henderson in San Francisco, who immediately granted a temporary restraining order blocking enforcement of the law. Doe v. Harris, 2012 WL 6101870 (N.D. Cal. Nov. 7, 2012). At this point, two private citizens who were proponents of Proposition 35 moved to intervene as co-defendants. On January 10, 2013, Judge Henderson granted their motion to intervene. Doe v. Harris, 2013 WL 140053 (N.D. Cal. Jan. 10, 2013). The Court noted that the intervenors were not entitled to intervene but the Court permitted it anyway in the hope that their intervention would contribute to a just and equitable resolution of the disputes.

On January 11, 2013, Judge Henderson granted the plaintiffs' Motion for a Preliminary Injunction. Doe v. Harris, 2013 WL 144048 (N.D. Cal. Jan. 11, 2013). The court applied intermediate scrutiny and found that the state had failed to demonstrate that the reporting requirement under the CASE Act was narrowly tailored to serve its legitimate interests in protecting individuals from sex offenses and human-trafficking. Accordingly, the court concluded that the plaintiffs were likely to succeed on their First Amendment speech claim, noting that the plaintiffs enjoyed no lesser right to anonymous speech simply because they were unpopular. Therefore, the court enjoined the state government and all law enforcement personnel from implementing the reporting requirement under the CASE Act.

The State and two private intervenors appealed the decision to the United States Court of Appeals for the Ninth Circuit. The district court stayed the proceedings pending the appeal. On November 18, 2014, the Ninth Circuit affirmed the District Court's granting of the plaintiffs' preliminary injunction and remanded the matter to the District Court for further proceedings. Doe v. Harris, 772 F.3d 563 (9th Cir. 2014).

At a case management conference on April 6, 2015, the intervening defendants requested a stay of proceedings in District Court while they pursued a legislative resolution of the matter. They stated that if legislation was not approved by the California legislature by September 14, 2015, or if legislation was approved by that date but the Governor vetoed the legislation, then the intervenors would stipulate to a permanent injunction. On April 7, 2015, the Court granted the intervening defendants' motion to stay proceedings until September 15, 2015.

On September 14, 2015, the defendants submitted a status report stating that legislation addressing the constitutional concerns raised by Proposition 35 - Senate Bill 448 - was approved by the California Senate with a 39-0 vote on September 1, 2015.

SB 448 amended Proposition 35 in the following ways:
(1) Eliminated the requirement that sex offenders register Internet service providers, and clarified that sex offenders need only register those Internet identifiers actually used to participate in online communications;
(2) Limited the public disclosure of sex offenders' Internet identifiers to instances where the Attorney General had determined, based on specific, articulable facts, that disclosure was likely to protect members of the public from sex-related crimes, kidnappings, or human trafficking;
(3) Provided sex offenders with 5 working days to register new Internet identifiers, rather than 24 hours; and
(4) Applied the registration requirements only to those who were required to register for a crime where the use of the Internet was essential to the commission of the crime.

While the Assembly was unable to vote on SB 448 before the legislative session ended on September 11, 2015, the plaintiffs stated that they had good cause to believe that the Legislature would approve SB 448 shortly after the Legislature reconvened on January 4, 2016, and that the resulting legislation would resolve the plaintiffs' constitutional claims. The intervenors stated that since further litigation was unnecessary, they would allow the current stay to lapse according to its terms, and that the parties would meet and confer about how to proceed.

On October 26, 2015, by the parties' stipulation, the District Court declared that the challenged provisions "violate[d] the First Amendment to the United States Constitution and cannot be enforced." It then deferred entry of final judgment to allow the intervenors to pursue legislation that would amend the law in a way that would resolve the matter without further proceedings.

On October 28, 2016, the Governor signed into law SB 448, which amended the challenged provisions. When it went into effect on January 1, 2017, SB 448 significantly narrowed the scope of the challenged Internet registration requirement, only requiring registration for people convicted after January 1, 2017 of a limited number of enumerated offenses who used the Internet as part of the crimes.

The parties agreed that the amendment made this litigation moot. On December 27, 2016, the parties stipulated that they had agreed that the defendant would pay to the plaintiffs a total of $522,611.07 ($715.77 in costs and $521,895.30 in attorneys' fees), and Judge Henderson entered an order with this agreement on January 3, 2017.

On January 11, 2017, the parties jointly requested that the case be dismissed, and Judge Henderson dismissed the case the next day.

Emma Bao - 06/17/2013
Richard Jolly - 10/14/2014
Elizabeth Greiter - 12/07/2017


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