BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 748
Senator Leno
As Amended April 15, 2009
Hearing Date: April 21, 2009
Penal Code
BCP:jd
SUBJECT
Witness Relocation and Assistance Program
- Address records -
DESCRIPTION
This bill seeks to provide further protection to people
participating in the Witness Relocation and Assistance Program
(WRAP) by prohibiting their addresses and telephone numbers from
being posted on the Internet, as specified. In addition to that
prohibition, this bill would, among other things:
require prosecutors to provide participants with an opt-out
form;
require the removal of the home address and phone number upon
receipt of that form; and
prohibit the Internet solicitation, sale, or trade of that
information.
This bill would additionally provide for injunctive and
declaratory relief (which includes court costs and attorneys
fees), the ability to bring a civil action for damages, and
various criminal penalties.
BACKGROUND
Established in 1997, the California Witness Relocation and
Protection Program (WRAP) provides protection of witnesses and
their families, friends, or associates who are endangered due to
ongoing or anticipated testimony in gang, organized crime, or
narcotic trafficking cases or in other cases that have a high
degree of risk to the witness. The program, administered by the
Department of Justice, which does not provide for lifelong
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placement, offers funds for witness relocation and protection
only as long as the witness is needed to testify.
In order for a witness to be eligible for entering into the
protection program: (1) the witness must have been summoned or
be reasonably expected to be summoned to testify; (2) there must
exist credible evidence of substantial danger; and (3) the
witness must agree to sign and comply with the conditions in the
Witness Advisement Form. Family, friends, or associates of the
witness are also eligible if they are deemed by the Attorney
General to be endangered.
This bill seeks to further protect people participating in the
Witness Relocation and Assistance Program by prohibiting their
addresses and phone numbers from being posted on the Internet,
as specified. This bill was approved by the Senate Committee on
Public Safety on April 14, 2009, and referred to this committee
for review of its provisions.
CHANGES TO EXISTING LAW
Existing law establishes the Witness Relocation and Assistance
Program (WRAP) administered by the Attorney General. The
Witness Relocation and Assistance Program provides that in any
criminal proceeding within this state, when the action is
brought by local or state prosecutors, where credible evidence
exists of a substantial danger that a witness may suffer
intimidation or retaliatory violence, the Attorney General may
reimburse state and local agencies for the costs of providing
witness protection services. (Pen. Code Secs. 14020, 14022.)
Existing law provides that in the WRAP the Attorney General
shall give priority to matters involving organized crime, gang
activities, drug trafficking, human trafficking, and causes
involving a high degree of risk to the witness. Special regard
shall be given to the elderly, the young, battered, victims of
domestic violence, the infirm, the handicapped and victims of
hate incidents. (Pen. Code Sec. 14023.)
Existing law provides that no state or local agency shall post
the home address or telephone number of any elected or appointed
official on the Internet without first obtaining the written
permission of that individual. (Gov. Code Sec. 6254.21 (a).)
Existing law provides that no person shall knowingly post the
home address or telephone number of any elected or appointed
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official, or of the official's residing spouse or child on the
Internet knowing the person is an elected or appointed official
and intending to cause imminent great bodily harm that is likely
to occur or threatening to cause imminent great bodily harm to
that individual. (Gov. Code Sec. 6254.21 (b).)
Existing law provides that no person, business, or association
shall publicly post or publicly display on the Internet the home
address or telephone number of any elected or appointed official
if that official has made a written demand of that person,
business, or association to not disclose his or her home address
or telephone number. (Gov. Code Sec. 6254.21 (c)(1).)
Existing law provides that an official whose home address is
made public as a result of a violation of the above may bring an
action seeking injunctive or declarative relief, and may be
awarded court costs and reasonable attorney's fees. (Gov. Code
Sec. 6254.21 (c)(2).)
Existing law provides that no person, business, or association
shall solicit, sell, or trade on the Internet the home address
or telephone number of an elected or appointed official with the
intent to cause imminent great bodily harm to the official or
any person residing at the official's home address. (Gov. Code
Sec. 6254.21 (d)(1).)
Existing law provides, notwithstanding any other provision of
law, an official whose home address or telephone number is
solicited, sold, or traded in violation of the above, may bring
an action and shall be awarded up to three times actual damages
but in no case less than $4,000. (Gov. Code Sec. 6254.21
(d)(2).)
Existing law provides that an interactive computer service or
access software provider, as defined, shall not be liable unless
the service or provider intends to abet or cause imminent great
bodily harm to an elected or appointed official. (Gov. Code
Sec. 6254.21 (c).)
This bill would provide that no person or private entity shall
post on the Internet with the intent to cause bodily harm, the
home address, telephone number, or personal identifying
information intended to disclose the location of any witness or
witness family member participating in the California Witness
Relocation and Assistance Program (WRAP). A violation of that
provision would be a misdemeanor.
This bill would provide that upon admission to the WRAP program,
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local or state prosecutors shall give each participant a written
"opt-out" form for submission to relevant Internet search engine
companies or entities. That form shall notify the entities of
the protected person and prevent the inclusion of the
participant's addresses and telephone numbers in public Internet
search databases.
This bill would require a business, state or local agency, or
private entity to remove the home address or telephone number of
a WRAP participant upon receipt of the opt-out form. This bill
would specifically prohibit a person, business, or association
from soliciting, selling, or trading the home address or
telephone number of a witness on the Internet.
This bill would provide that any person, business, or private
entity that violates the above requirements shall be subject to
a civil penalty in the amount of $5,000. That civil penalty may
be brought by any public prosecutor, and the penalty imposed
shall be enforceable as a civil judgment.
This bill would provide that any witness whose home address or
telephone number is made public as a result of a violation of
the above requirements may bring an action for injunctive or
declaratory relief. If a violation is found by a court or jury,
it may grant injunctive or declaratory relief, but shall award
court costs and reasonable attorney's fees.
This bill would provide that notwithstanding any other provision
of law, a witness whose home address or telephone number is
solicited, sold or traded in violation of the above provisions
may bring an action in any court of competent jurisdiction. If
a jury or court finds that a violation has occurred, it shall
award damages to that witness in an amount up to maximum of
three times the actual damages, but in no case less than $4,000.
COMMENT
1. Stated need for the bill
According to the author:
Although Penal Code Section 14020 establishes the California
Witness Relocation and Assistance Program (WRAP) to provide
relocation and assistance services to crime witnesses in
substantial danger of intimidation or retaliatory violence,
it does not provide for sufficient protections to keep CWRAP
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participants safe from public disclosure on the internet.
Additional efforts, such as the opt-out protections included
in this bill, are necessary to enforce Penal Code Section
14029 which established that "all information relating to
any witness participating in the program established
pursuant to this title shall remain confidential and is not
subject to disclosure pursuant to the California Public
Records Act."
Across California, witnesses to violent crime heroically
take risks to testify against their perpetrators and bring
justice forward. These witnesses deserve the fullest
protection of the law. . . .
As of today, there is no prohibition on posting information
about WRAP participants on the numerous people search
websites available to the general public. This places a
significant risk to WRAP participants if information about
their new whereabouts can be so readily discovered.
2. Protection against disclosure on the Internet
The Legislature has previously recognized that the personal
information of certain groups of people should be protected from
disclosure. For example, the Safe at Home program permits
covered persons to make their addresses confidential and to use
an address designated by the Secretary of State. (Gov. Code Sec.
6215 et seq.) AB 1595 (Evans, Chapter 343, Statutes of 2005)
prohibited the public posting or display on the Internet of the
home addresses or telephone numbers of elected or appointed
officials, as defined, if that official has made a written
demand that the information not be disclosed. Furthermore, AB
2251 (Evans, Chapter 486, Statutes of 2006) enacted similar
prohibitions with regard to specified individuals associated
with a reproductive health care service provider.
Similar to those bills, this bill seeks to protect participants
in California's Witness Relocation and Assistance Program (WRAP)
by prohibiting the posting of their home address or telephone
numbers on the Internet. WRAP provides protection of witnesses
and their families, friends, or associates due to ongoing or
anticipated testimony in gang, organized crime, or narcotic
trafficking cases or in other cases that pose a high degree of
risk to the witness. As part of the program, those witnesses
are moved out of neighborhoods and relocated with help to find
jobs, schools, etc. The author further notes:
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With the continual expansion and advancement of technology,
gang, drug, and interpersonal violence is no longer limited
to the streets. Increasingly, gang members and violent
offenders are using technology to search for witnesses or
victims who may testify or have testified against them. Gang
members have used internet search engines that specialize in
finding people to locate witnesses who may not be aware
their personal information is available.
3. Opt-out form and civil remedies, including attorney's fees
In order for an Internet search engine to omit the witnesses'
information, that entity must first be notified of the
information that must be protected. Accordingly, this bill
would require, upon admission to the WRAP program, that the
local or state prosecutor give each participant a written
"opt-out" form for submission to those entities. The recipient
of the opt-out form must remove the home address or telephone
number of the WRAP participant from its public Internet search
databases.
This bill would additionally prohibit the Internet solicitation,
sale, or trade of the home address or telephone number of a
witness. Although appearing in the same subdivision as the
above opt-out requirements, the language does not limit its
application only to entities receiving an opt-out form. The
author's office notes that it is their intent to apply that
restriction to those who have received the opt-out form, and not
to capture individuals who have no knowledge that the person is
in WRAP. The following amendment is suggested to clarify that
restriction:
Suggested amendment:
On page 3, lines 16 through 18, strike out "No person,
business, or association shall solicit, sell, or trade on the
Internet the home address or telephone number of a WRAP
participant." and insert:
No person, business, or association that has received an
opt-out form from a WRAP participant shall solicit, sell, or
trade on the Internet the home address or telephone number of
that participant.
To enforce the above prohibitions, this bill would provide for a
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civil penalty (brought by a public prosecutor), injunctive or
declaratory relief for a witness whose information is made
public as a result of a violation, and a civil action with up to
three times actual damages (but no less than $4,000) for a
witness whose address or phone number is solicited, sold, or
traded in violation of this bill.
The bill would also require an award of court costs and
reasonable attorney's fees if a jury finds that a violation has
occurred in an action for injunctive or declaratory relief.
Generally speaking, fee shifting statutes are enacted only when
society considers a statutory or constitutional right important
enough to justify fee shifting. (See Choate v. County of Orange
(2000) 86 Cal.App.4th 312, 322-23; Code Civ. Proc. Sec. 1021.)
In this case, the Legislature has already taken steps to protect
the identity of these witnesses and the continued safety of the
witnesses is dependent on the nondisclosure of their personal
information. Absent an award of attorney's fees, a witness
whose information has been sold in violation of this bill would
face the difficult choice about whether to pay thousands of
dollars for an attorney, or to ignore the violation. It should
be noted that the allowance of attorney's fees only for
injunctive or declaratory relief is consistent with the remedies
available to public officials for the unlawful public disclosure
of their home address or telephone number. (Gov. Code Sec.
6254.12 (d).)
4. Criminal provisions approved by Senate Public Safety
In addition to the above civil provisions, this bill would
prohibit a person or private entity from posting on the
Internet, with the intent to cause bodily harm, the address,
telephone number, or personal identifying information intended
to disclose the location of any witness and/or witness family
members participating in WRAP. A violation of that provision
would be a misdemeanor, and subject the violator to fine and/or
imprisonment. While that prohibition is similar to that
contained in AB 2296 (Evans, Chapter 492, Statutes of 2008)
which protected academic researchers, it does not include, as AB
2296 did, a requirement that the "person imminently use the
information to commit a crime involving violence or a threat of
violence." (Pen. Code Sec. 422.4.)
The author's office states their intent to conform the
prohibition in this bill more closely to that of AB 2296 by
including a similar imminence requirement. The following
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amendment is suggested to conform the bill to that intent:
Suggested amendment:
On page 2, strike out lines 7 through 12, inclusive, and
insert:
No person or private entity shall post on the Internet the
home address, the telephone number, or personal identifying
information that discloses the location of any witness or
witness' family member participating in the California Witness
Relocation and Assistance Program (WRAP) with the intent that
another person imminently use that information to commit a
crime involving violence or a threat of violence against that
witness or witness' family member.
Support : Crime Victims United of California; AFSCME, AFL-CIO;
California District Attorneys Association; Los Angeles County
District Attorney's Office
Opposition : None Known
HISTORY
Source : San Francisco District Attorney Kamala Harris
Related Pending Legislation : None Known
Prior Legislation :
AB 1595 (Evans, Chapter 343, Statutes of 2005), allowed for
specified elected or appointed officials to obtain an injunction
against any person or entity that publicly posts on the Internet
the home address or telephone number of that official, and
allows for damages if this disclosure was made with intent to
cause bodily harm.
AB 2251 (Evans, Chapter 486, Statutes of 2006), protected the
personal safety of reproductive health care providers,
employees, volunteers, and patients by prohibiting the posting
of such people's personal information on the Internet under
specified circumstances.
Prior Vote : Senate Committee on Public Safety (Ayes 7, Noes 0)
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