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New Parties Want to Defend Trafficking Law

SAN FRANCISCO (CN) - Human trafficking opponents want to intervene in a class action brought by two registered sex offenders fighting a California proposition.

The two offenders, represented by the American Civil Liberties Union and the Electronic Frontier Foundation, claim that a provision of Proposition 35 violates their civil rights in requiring them to give police a list of their Internet activity.

In its bid to fight human trafficking, part of the voter-approved initiative requires sex offenders to turn over their Internet service providers, screen names and email addresses.

Defenders of civil rights say this provision impedes the right of sex offenders to engage in anonymous, online free speech.

U.S. District Judge Thelton Henderson granted a temporary injunction on the section last week.

On Tuesday, the two official backers of Proposition 35 told the court that the plaintiffs should not be allowed to proceed anonymously. Daphne Phung, founder of the nonprofit California Against Slavery, and Silicon Valley attorney Chris Kelly, had moved to intervene in the case a day earlier.

The pair say that the sex-offender plaintiffs do not oppose such intervention, but that they want to assurances that their anonymity will not be compromised.

"Plaintiffs' concerns do not present a legitimate basis for opposing or restricting proponents' intervention," according to Phung and Kelly's Monday motion. "These plaintiffs have come to this court seeking to overturn the will of an overwhelming majority of California voters who want Proposition 35 to protect them, their children, and their communities from registered sex offenders who are online sexual predators. Although plaintiff sex offenders have the right to a full hearing on their claims in this court, plaintiffs go too far when they seek to restrict the ability of the People of California - who speak through a ballot measure's official proponents in post-election litigation - to be fully heard on all of the issues that plaintiffs bring before this court."

It adds: "It strains credulity to suggest that the voters of California should have less voice in that matter than the registered sex offenders from whom they seek protection, for any reason, let alone the mere convenience of those offenders."

In the Tuesday motion, Phung and Kelly took aim at the plaintiffs' motion to proceed anonymously and file their declarations under seal.

"Plaintiffs' motion for leave to proceed anonymously rests on three mischaracterizations: first, that they have a privacy right to protect their identities as convicted and registered sex offenders; second, that they face a risk of harassment and retaliation as a result of this lawsuit that justifies anonymity; and third, that this litigation is limited to a facial challenge in which discovery relating to the plaintiffs is irrelevant," the motion states. "As to the first, plaintiffs lost their right to privacy regarding their status as sex offenders when they pled guilty to or were convicted of crimes that subjected them to registration under section 290 of the California Penal Code. Second, plaintiffs have presented no risk different from that suffered by every registered sex offender in this state. Finally, as to the supposed lack of harm to defendants, plaintiffs have pled this case as both a facial and an as-applied challenge, and have put at issue the factual circumstances surrounding their own Internet activities both by their pleadings and through asserting the relevancy of their own declarations. In short, while proposed interveners do not object to considering this preliminary injunction motion without further discovery of plaintiffs' identities, we would object to anonymity should the case proceed any further."

Phung and Kelly are represented by James Harrison and Margaret Prinzing of Remcho, Johansen & Purcell of San Leandro, Calif.

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