Criminal Appeal and Sentencing Law & Policy have posts up on California’s new 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 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 vagueness (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.
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