BILL NUMBER: AB 543 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 24, 2003
INTRODUCED BY Assembly Member Bogh
FEBRUARY 18, 2003
An act to repeal and add Section 1203.047 of the Penal
Code, relating to high technology crimes. An act to
amend Section 786 of the Penal Code, relating to jurisdiction.
LEGISLATIVE COUNSEL'S DIGEST
AB 543, as amended, Bogh. High technology crimes:
probation Jurisdiction .
Existing law provides that the jurisdiction of a criminal action
for unauthorized use of the personal identifying information of
another is the county where the theft occurred or where the
information was illegally used, and provides special jurisdictional
rules and procedures for these offenses when they occur in multiple
jurisdictions.
This bill would provide that as regards a criminal action for
unauthorized use of the personal identifying information of another
for which there is jurisdiction somewhere in California, there shall
also be jurisdiction in the county of residence of the person whose
personal identifying information is used without authorization. This
bill would also make the county of residence of the person whose
personal identifying information is used without authorization a
proper jurisdiction for the prosecution of multiple offenses of this
type, as specified.
Existing law specifies certain circumstances under which a person
convicted of a high technology crime, as specified, may be granted
probation. Existing law also provides that absent unusual
circumstances the period of probation shall not be less that 3 years.
This bill would repeal these provisions, and instead provide for
the imposition of specified conditions of probation for persons
convicted of certain high-technology crimes, including those
accomplished with the aid of a computer, a computer network,
electronic mail, or the Internet. This bill would require
restitution to crime victims, as specified, and would make technical
changes to criminal procedures involving high technology crimes. This
bill would impose a forensic laboratory analysis fee on defendants
which would be deposited into the High Technology Laboratory Trust
Fund as established by this bill to defray costs incurred for
computer or other electronic analysis or computer evidence related to
investigating and prosecuting high-technology crimes.
By increasing the costs to local governments for increased
probation periods, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee:
yes no . State-mandated local program:
yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds that rapid technological
SECTION 1. Section 786 of the Penal Code is amended to read:
786. (a) When property taken in one jurisdictional territory by
burglary, carjacking, robbery, theft, or embezzlement has been
brought into another, or when property is received in one
jurisdictional territory with the knowledge that it has been stolen
or embezzled and the property was stolen or embezzled in another
jurisdictional territory, the jurisdiction of the offense is in any
competent court within either jurisdictional territory, or any
contiguous jurisdictional territory if the arrest is made within the
contiguous territory, the prosecution secures on the record the
defendant's knowing, voluntary, and intelligent waiver of the right
of vicinage, and the defendant is charged with one or more property
crimes in the arresting territory.
(b) (1) The jurisdiction of a criminal action for unauthorized use
of personal identifying information, as defined in Section 530.5 of
the Penal Code, shall also include the county where the theft of the
personal identifying information occurred, or the county where the
information was used for an illegal purpose. If there is
jurisdiction of the action somewhere in this state under these or
other provisions, the county of residence of the person whose
personal identifying information is used without authorization shall
also be a proper jurisdiction for the action. If multiple
offenses of unauthorized use of personal identifying information, all
involving the same defendant or defendants and the same personal
identifying information belonging to the one person, occur in
multiple jurisdictions, any one of those jurisdictions or the
county of residence of the person whose personal identifying
information is used without authorization is a proper
jurisdiction for all of the offenses.
(2) When charges alleging multiple offenses of unauthorized use of
personal identifying information occurring in multiple territorial
jurisdictions are filed in one county pursuant to this section, the
court shall hold a hearing to consider whether the matter should
proceed in the county of filing, or whether one or more counts should
be severed. The district attorney filing the complaint shall
present evidence to the court that the district attorney in each
county where any of the charges could have been filed has agreed that
the matter should proceed in the county of filing. In determining
whether all counts in the complaint should be joined in one county
for prosecution, the court shall consider the location and complexity
of the likely evidence, where the majority of the offenses occurred,
the rights of the defendant and the people, and the convenience of,
or hardship to, the victim and witnesses.
(c) This section shall not be interpreted to alter victims' rights
under Section 530.6. change has provided new means of
committing certain crimes and created new offenses. Although the
Legislature has passed laws defining that illegal conduct, it is
equally important to provide courts and probation officers with tools
they can use to discourage recidivism, foster rehabilitation, and
protect the public. The current Section 1203.047 provides a blunt
instrument to achieve these objections for a small segment of
high-technology offenders. This act repeals that statute and
replaces it with a more comprehensive scheme.
This act requires courts, as part of imposing terms of probation,
to prohibit defendants from engaging in various acts and practices
during their probation period. Some of the acts prohibited by this
act, including concealing the source of electronic communications,
communicating in real-time over the Internet, as in "chat," and the
use of encryption, are targeted because the acts enable new offenses
or concealment of the same. Still other provisions, including
limiting the business activities of computer intruders, serve to
steer offenders away from activities associated with their offenses
that may predispose them to repeat their crimes or provide them with
the tools and information they need to do so. Business activities
may also interfere with offenders' rehabilitation and reintegration
into the community by appearing to reward them for their crimes and
discouraging them from seeking other gainful employment. Some of the
disclosures required by this act, including requiring defendants
convicted of auction fraud to reveal their convictions when selling
items on the Internet, will protect the public and make it more
difficult for offenders to commit new crimes. Each of the
restrictions on an offender's activities and the compelled disclosure
of certain facts are necessary to achieve the purposes set forth
above.
The Legislature also recognizes that the investigation and
prosecution of these crimes exacts an unusually heavy toll on victims
and law enforcement. Victims may need to halt their business
activities to preserve evidence and secure their computers from
further intrusion. Victims may lose customers and business
opportunities, be required to compensate third parties, and suffer
other losses not directly connected with the offense. This act
requires offenders to make restitution for direct and indirect losses
alike. Law enforcement may incur tens of thousands of dollars in
costs to locate, seize, preserve, analyze, and present computer
evidence. This legislation imposes a laboratory analysis fee to be
deposited into the High Technology Laboratory Trust Fund to be
administered by the Office of Criminal Justice Planning.
SEC. 2. Section 1203.047 of the Penal Code is repealed.
SEC. 3. Section 1203.047 is added to the Penal Code, to read:
1203.047. (a) This section applies where probation is granted to
a defendant convicted of a violation of Section 502, 502.7, 593d, or
593e. It also applies to a conviction for a violation of Section
288.2, 311.1, 311.2, 311.3, 311.4, 311.11, 313.1, 350, 422, 474, 475,
476, 484e, 484g, 529, 529.5, 530.5, 535, or 646.9, where the crime
was accomplished with the aid of a computer, a computer network,
electronic mail, or the Internet.
(b) The term of probation shall be not less than 36 months for any
felony violation of this section.
(c) The defendant shall make full restitution to the victim for
all losses as otherwise provided for by law. In calculating those
losses, the court shall include all indirect and direct economic loss
suffered by the victim, including, but not limited to, lost profits,
costs reasonably incurred by the victim of storing evidence in a
commercial storage facility, costs reasonably incurred by the victim
or others to restore or repair computers and computer networks
damaged or otherwise altered or impaired as a result of the offense,
and losses reasonably incurred by the victim in compensating, paying
damages to, or indemnifying third parties based on losses caused by
the offense.
(d) The court may impose terms of probation that reasonably
restrict the use by the defendant of the type of technology that the
defendant used to commit the offense.
(e) The court shall impose the following terms of probation,
unless upon a showing of good cause the court finds a term or terms
of probation to be inappropriate:
(1) If the defendant is convicted of violating Section 422, 529,
or 646.9 or any other felony violation where the defendant concealed
the source, destination, or content of an electronic communication in
committing or aiding in the commission of the offense:
(A) The defendant shall not intentionally conceal the source,
destination, or content of any electronic communication transmitted
or otherwise sent by the defendant.
(B) The defendant shall not provide false information about his or
her identity to any provider of an "electronic communications
service" as defined under paragraph (15) of Section 2510 of Title 18
of the United States Code when purchasing, subscribing to, or
agreeing to purchase or subscribe to any service from that provider
that allows the defendant to send or receive electronic
communications.
(C) The defendant shall disclose to the defendant's probation
officer all electronic mail accounts, all Internet accounts, any
other means of access to any computer or computer network, and all
passwords and access codes. The defendant shall consent to the
search of those electronic mail and Internet accounts at any time and
the seizure of any information or data contained therein without a
search warrant or probable cause.
(2) If the defendant is convicted of any offense involving fraud
in the sale or offering for sale of any item via the Internet,
including, but not limited to, any violation of Section 535 involving
the Internet:
(A) In any advertisement, notice, or offer for sale or purchase
displayed by the defendant on the Internet, the defendant shall
prominently disclose his or her true identity, including residence
address and telephone number, along with the fact that the defendant
is on probation for having committed that offense.
(B) The defendant shall not intentionally conceal the source,
destination, or content of any electronic communication transmitted
or otherwise sent by the defendant.
(C) The defendant shall not provide false information about his or
her identity to any provider of an "electronic communications
service" as defined under paragraph (15) of Section 2510 of Title 18
of the United States Code when purchasing, subscribing to, or
agreeing to purchase or subscribe to any service from that provider
that allows the defendant to send or receive electronic
communications.
(D) The defendant shall disclose to the defendant's probation
officer all electronic mail accounts, all Internet accounts, any
other means of access to any computer or computer network, and all
passwords and access codes. The defendant shall consent to the
search of those electronic mail and Internet accounts at any time and
the seizure of any information or data contained therein without a
search warrant or probable cause.
(3) If the defendant is convicted of violating Section 502 or
502.7:
(A) The defendant shall not do any of the following:
(i) Provide computer or information security services to the
public, including securing or testing the security of computers or
computer networks, for compensation.
(ii) Disclose or provide information about the security of
computers or computer networks to others for compensation.
(iii) Deliver presentations concerning the security of computers
or computer networks to the public or others for compensation.
(iv) Possess software used primarily to gain unauthorized access
to computers or computer networks or to ascertain means of gaining
that unauthorized access.
(v) Possess software designed to encrypt data or electronic
communications except as allowed by the court after notice to the
prosecution and a hearing.
(B) The defendant shall not intentionally conceal the source,
destination, or content of any electronic communication transmitted
or otherwise sent by the defendant.
(C) The defendant shall not provide false information about his or
her identity to any provider of an "electronic communications
service" as defined under paragraph (15) of Section 2510 of Title 18
of the United States Code when purchasing, subscribing to, or
agreeing to purchase or subscribe to any service from that provider
that allows the defendant to send or receive electronic
communications.
(D) The defendant shall disclose to the defendant's probation
officer all electronic mail accounts, all Internet accounts, any
other means of access to any computer or computer network, and all
passwords and access codes. The defendant shall consent to the
search of those electronic mail and Internet accounts at any time and
the seizure of any information or data contained therein without a
search warrant or probable cause.
(4) If the defendant is convicted of violating Section 350, the
defendant shall not:
(A) Infringe copyrights for software or intentionally aid in the
infringement of those copyrights by others.
(B) Engage in the sale or distribution of software except upon
court approval after notice and hearing.
(5) If the defendant is convicted of violating Section 593d or
593e, the defendant shall not possess:
(A) An e-prom burner.
(B) Software designed to facilitate the programming of cable
e-prom chips or satellite access cards.
(C) Any addressable multichannel video or information device, as
defined in subdivision (b) of Section 593d, not assigned to the
defendant's residence by the multichannel video or information
services provider, as defined in subdivision (i) of Section 593d.
The defendant shall not possess more than one direct broadcast
satellite system access card per satellite system receiver allowed
under this subdivision.
(6) If the defendant is convicted of violating Section 288.2,
311.1, 311.2, 311.3, 311.4, 311.11, or 313.1, and the violation was
accomplished with the aid of a computer, a computer network,
electronic mail, or the Internet:
(A) The defendant shall not intentionally conceal the source,
destination, or content of any electronic communication transmitted
or otherwise sent by the defendant.
(B) The defendant shall not knowingly engage in any real-time
communication over the Internet with anyone who identifies himself or
herself as a minor or anyone whom the defendant knows to be a minor,
including "chat" and "instant messaging" forms of communication,
unless the court or the probation department has allowed the
defendant to communicate with that minor. This provision does not
prohibit the use of electronic mail.
(C) The defendant shall not knowingly engage in any communication
over the Internet, including by electronic mail, with anyone
concerning the current or planned possession, production,
preparation, publication, exchange, exhibition, or distribution by
the defendant or any party to that communication of any matter
depicting a person under 18 years of age personally engaging in or
personally simulating sexual conduct as defined in Section 311.4.
(D) The defendant shall participate in a counseling program
relating to the commission of the offense by that defendant.
(E) The defendant shall not provide false information about his or
her identity to any provider of an "electronic communications
service" as defined under paragraph (15) of Section 2510 of Title 18
of the United States Code when purchasing, subscribing to, or
agreeing to purchase or subscribe to any service from that provider
that allows the defendant to send or receive electronic
communications.
(F) The defendant shall disclose to the defendant's probation
officer all electronic mail accounts, all Internet accounts, any
other means of access to any computer or computer network, and all
passwords and access codes. The defendant shall consent to the
search of those electronic mail and Internet accounts at any time and
the seizure of any information or data contained therein without a
search warrant or probable cause.
(G) The defendant shall not possess software designed to encrypt
data or electronic communications except as allowed by the court
after notice to the prosecution and a hearing.
(7) If the defendant is convicted of violating Section 474, 475,
476, 484e, 484g, 529, 529.5, or 530.5, and the violation was
accomplished with the aid of a computer, a computer network,
electronic mail, or the Internet:
(A) The defendant shall not possess software designed for
manufacturing checks or blank check paper.
(B) The defendant shall not possess a scanner or digital camera.
(C) The defendant shall not possess an access card reader or an
access card encoder.
(D) The defendant shall obtain approval from the probation
department prior to accepting any employment that includes the
legitimate acquisition of personal identifying information.
(E) The defendant shall not intentionally conceal the source,
destination, or content of any electronic communication transmitted
or otherwise sent by the defendant.
(F) The defendant shall not provide false information about his or
her identity to any provider of an "electronic communications
service" as defined under paragraph (15) of Section 2510 of Title 18
of the United States Code when purchasing, subscribing to, or
agreeing to purchase or subscribe to any service from that provider
that allows the defendant to send or receive electronic
communications.
(G) The defendant shall disclose to the defendant's probation
officer all electronic mail accounts, all Internet accounts, any
other means of access to any computer or computer network, and all
passwords and access codes. The defendant shall consent to the
search of those electronic mail and Internet accounts at any time and
the seizure of any information or data contained therein without a
search warrant or probable cause.
(f) (1) The High Technology Laboratory Trust Fund is hereby
created as a special account within the General Fund, to be
administered by the Office of Criminal Justice Planning. Money in
the fund shall, upon appropriation by the Legislature, be used for
the purposes of defraying the costs incurred for computer forensic
analysis or other analysis of electronic or computer evidence related
to investigating and prosecuting high-technology offenses, as those
offenses are specified in subdivision (h).
(2) In addition to any other fine, restitution fine, or order of
restitution, the court shall order payment by the defendant convicted
of an offense described in subdivision (a) of a minimum forensic
computer laboratory analysis fee, if an analysis was conducted in the
case, for the reasonable costs incurred for computer forensic
analysis or other analysis of electronic or computer evidence, not to
exceed twenty-five thousand dollars ($25,000) per case, including
cases where the defendant is not convicted of a felony but is
convicted of a misdemeanor. The court may reduce or waive this fee
upon a finding that the defendant does not have the ability to pay
the fee. The moneys deposited with the county treasurer pursuant to
this section shall be transferred to the Controller for deposit in
the High Technology Laboratory Trust Fund. This fee shall not be
assessed unless the request for the fee is included in an indictment
or in an information or other accusatory pleading filed before trial.
(g) If the defendant is convicted of a high-technology related
offense not otherwise specified in this section and the offense is
designated as a high-technology related offense in an indictment or
in an information or other accusatory pleading filed before trial,
the court shall impose, as a term of probation, the fee specified in
subdivision (f), and may impose terms of probation that reasonably
restrict the use by the defendant of the type of technology that the
defendant used to commit the offense.
(h) For purposes of this section, a "high-technology related
offense" is an offense committed with the aid of a computer, a
computer network, electronic mail, or the Internet.
(i) For purposes of this section, the terms "computer system" and
"computer network" are to be construed as they are defined in Section
502.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.