BILL ANALYSIS
SB 748
Page 1
Date of Hearing: June 23, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 748 (Leno) - As Amended: April 28, 2009
SUMMARY : Provides additional protections for persons
participating in the California Witness Relocation and
Assistance Program (WRAP). Specifically, this bill :
1)Provides that no person, state, or local public or private
agency shall post on the Internet the home address, the
telephone number, or personal identifying information that
discloses the location of any witness or family member
participating in the 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.
2)Makes a violation of these provisions punishable by a fine of
up to $2,500, or up to six months in a county jail, or by both
that fine and imprisonment.
3)Further states that if a violation of these provisions leads
to the bodily injury of the witness, or the witness' family
members who are participating in the program, it is a
misdemeanor punishable by a fine of up to $5,000, or
imprisonment of up to one year in a county jail, or by both
that fine and imprisonment.
4)States that upon admission to the WRAP, local or state
prosecutors shall give each participant a written opt-out form
for submission to the relevant Internet search engine
companies or entities. Specifies that this form shall notify
entities of the protected person and prevent the inclusion of
the participant's addresses and telephone numbers in public
Internet search databases.
5)States that a person, business, or state or local agency shall
remove the home address or telephone number of a WRAP
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participant upon receipt of the opt-out form, and makes
failure to do so subject to a $5,000 civil penalty for each
violation. States that this action for a civil penalty may be
brought by any public prosecutor in the name of the people of
the State of California, and the penalty imposed shall be
enforceable as a civil judgment.
6)States that no person, business or private entity 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.
7)Authorizes a witness whose home address or telephone number is
made public as a result of a violation to bring an action
seeking injunctive or declaratory relief, as specified.
States the court may award the witness court costs and
reasonable attorney's fees.
8)Authorizes an action for damages, by a witness whose home
address is solicited, sold or traded in violation of this
section, in any court of competent jurisdiction. States that
if a jury or the court finds that a violation has occurred, it
shall award damages in an amount up to three times the actual
damages, but in no case less than $4,000.
9)States that nothing in this section shall preclude prosecution
under any other provision of law.
EXISTING LAW :
1)Establishes the WRAP, administered by the Attorney General
(AG). (Penal Code Section 14020.)
2)Defines "witness" as any person who has been summoned, or is
reasonably expected to be summoned, to testify in a criminal
matter, including grand jury proceedings, for the People,
whether or not formal legal proceedings have begun. States
that active or passive participation in a criminal matter does
not disqualify a person from being a witness. Provides that
the term "witness" also may apply to family, friends, or
associates of the witness who are deemed by prosecutors to be
endangered. [Penal Code Section 14021(a).]
3)Provides that in any criminal proceeding within California,
when the action is brought by local or state prosecutors,
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where credible evidence exists of a substantial danger that a
witness may suffer intimidation or retaliatory violence, the
AG may reimburse state or local agencies for the costs of
providing witness protection services. (Penal Code Section
14022.)
4)Requires the AG to give priority in the WRAP to matters
involving organized crime, gang activities, drug trafficking,
human trafficking, and cases involving a high degree of risk
to the witness. (Penal Code Section 14023.)
5)States that special regard shall also be given to the elderly,
the young, battered, victims of domestic violence, the infirm,
the handicapped, and victims of hate incidents. (Penal Code
Section 14023.)
6)Provides that the AG shall coordinate the efforts of state and
local agencies to secure witness protection services and then
reimburse those state and local agencies for the costs of
services that he or she determines to be necessary to protect
a witness from bodily injury and otherwise to assure the
health, safety, and welfare of the witness. States that the
AG may reimburse the state or local agencies that provide
witnesses with any of the following (Penal Code Section
14024):
a) Armed protection or escort by law enforcement officials
or security personnel before, during, or subsequent to,
legal proceedings;
b) Physical relocation to an alternate residence;
c) Housing expense;
d) Appropriate documents to establish a new identity;
e) Transportation or storage of personal possessions;
f) Basic living expenses, including but not limited to,
food, transportation, utility costs, and health care;
g) Support advocacy, and other services to provide for
witnesses' safe transition into a new environment; and,
h) Other services as needed and approved by the AG.
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7)Requires that a witness protection agreement shall be in
writing and set forth what the agreement shall contain.
(Penal Code Section 14025.)
8)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. [Government Code Section
6254.21 (a).]
9)States that no person shall knowingly post the home address or
telephone number of any elected or appointed 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. States that a violation of this provision is
a misdemeanor; a violation that causes actual harm is an
alternate misdemeanor/felony. [Government Code Section
6254.21(b).]
10)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. [Government Code Section
6254.21(c)(1).]
11)States that an official whose home address is made public as
a result of a violation of the above provision may bring an
action seeking injunctive or declaratory relief, and may be
awarded court costs and reasonable attorney's fees.
[Government Code Section 6254.21(c) (2).]
12)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.
[Government Code Section 6254.21(d) (1).]
13)States that, notwithstanding any other provision of law, an
official whose home address or telephone number is solicited,
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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. [Government Code Section 6254.21(d)
(2).]
14)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. [Government
Code Section 6254.21 (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Although Penal
Code Section 14020 establishes the 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 WRAP 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.
"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.
"WRAP is a statewide relocation program for witnesses who
testify against some of the state's most violent offenders.
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WRAP participants have stood up against intensely violent
perpetrators responsible for terrorizing neighborhoods. By
cooperating with prosecutors, these witnesses courageously
risk their lives to stop the violence and protect their
communities. WRAP participants must uproot their families and
move out of their neighborhoods, change homes, jobs, schools,
and start all over. These are truly the heroes among us.
"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)Background : According to background information supplied by
the author, "SB 748 seeks to protect California WRAP
participants from public disclosure through the people search
Internet databases.
"SB 748 prohibits internet people search databases from
knowingly posting personal identifying information about
participants in the WRAP. The legislation creates a new WRAP
requirement that provides official opt-out forms for WRAP
participants to fill out upon entering the program. Once the
form is completed, the form is then submitted to the various
Internet search companies to ensure they refrain from posting
information about the person(s). SB 748 also provides for the
notification and removal of any personal identifying
information of a WRAP participant that may be unknowingly
posted by a Web site operator.
"[T]his bill would grant equal protections to WRAP participants
that are currently afforded to public officials under
Government Code Section 6254.21."
3)Protecting Confidentiality for WRAP Participants : According
to a fact sheet released by the author, ""[T]his legislation
creates a new WRAP requirement that provides official opt-out
forms for WRAP participants to fill out upon entering the
program. Once the form is completed, the form is then
submitted to the various internet search companies to ensure
they refrain from posting information about the person(s). SB
748 also provides for the notification and removal of any
personal identifying information of a WRAP participant that
may be unknowingly posted by a website operator."
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4)WRAP : 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. WRAP reimburses California's
district attorneys for expenses incurred by agencies during
the protection of witnesses. The witnesses are moved out of
neighborhoods or cities and relocated with help to find jobs,
schools, etc. There are cases of witnesses who did not stay
hidden and have been killed or injured, including a
22-year-old man in San Francisco who was shot to death after
returning to his neighborhood despite warnings from
prosecutors.
The 2008 Annual Report to the Legislature for the California
Witness Protection Program (CWPP, now known as "WRAP")
includes the period of July 1, 2006 to June 30, 2007.
According to the report, "During this reporting period, the
CWPP approved and funded 383 new cases for 433 witnesses
testifying in criminal proceedings. The program also approved
and reimbursed agency claims totaling $2,885,918 for
authorized expenditures to protect threatened witnesses,
averaging $240,493 in approved reimbursement claims per month.
"The 383 new cases provided protection for 433 witnesses and 667
family members who testified against 636 defendants. Of these
new cases, 293 were gang-related (77 percent); 8 involved
narcotics trafficking (two percent); 70 were for other types
of high-risk cases (18 percent); and 12 were related to
domestic violence (three percent.) Charges of homicide and
attempted homicide were the precipitating events on 69.8
percent of the cases and assault accounted for 9.9 percent of
the cases. The remaining 20.3 percent involved rape or sexual
assault related crimes, kidnapping, robbery, threats, narcotic
charges, fraud, and criminal conspiracy."
5)The Opt-Out Form Currently Used By California Elected or
Appointed Officials : This bill allows a WRAP participant to
submit opt-out forms to Internet search engine operators to
prevent inclusion of the participant's address and telephone
numbers in public Internet search databases, as specified.
This bill also requires a business, state or local agency or
person to remove the home address or telephone number of a
WRAP participant upon receipt of the opt-out form, and makes
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failure to do so subject to a $5,000 civil fine.
Presumably, this opt-out form would be similar to the opt-out
form for California elected or appointed officials pursuant to
Government Code Section 6254.21. This document is a two-page
document, with the first page constituting the actual opt-out
request, and the second page reciting the applicable law which
requires a person, business, or association to honor this
written demand by the appointed or elected official that his
or her home address not be publicly disclosed.
The first page requires merely the insertion of the name and
mailing address of the person or association to whom the
demand is directed, and recites the following: "Written
demand is hereby made pursuant to California Government Code
Section 6254.21, that you, your officers, employees,
associates affiliates, agents, assigns and all others under
your direction or control immediately cease and desist from
publicly displaying on the Internet my home address or
telephone number. I am a California Public Safety, Elected,
or Appointed Official, within the meaning of said California
law, a copy of which is enclosed.
"Demand is similarly made that the individuals and entities
referred to above desist from using the information provided
herein for any purpose other than complying with the demands
stated herein. This information is supplied only in order to
enable compliance with these demands. I specifically
withhold, and as necessary withdraw, any authority anyone
might claim to have to disclose, disseminate, publish or
further distribute in any way any of my personal information
or the personal information of my spouse or children, as the
case may be."
The form then has fill-in blanks for the officials' name, title,
telephone number, date of birth, home address, spouse's name
and children's names, if requested. The opt-out procedure
utilized pursuant to current law regarding disclosure of
public officials' identifying information appears to be
non-burdensome and easily adaptable to use by the WRAP
participants.
6)Protection against Disclosure on the Internet : The
Legislature has previously recognized that the personal
information of certain groups of people should be protected
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from disclosure. For example, the Safe at Home program
permits a participant to make his or her address confidential
and to use an address designated by the Secretary of State.
(Government Code Section 6215 et seq.) Similarly, this bill's
allowance of attorney's fees 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 numbers. [Government Code Section
6254.21 (d).]
7)The Need for Relocation Assistance Recognized by the Federal
Government through the United States Department of Housing and
Urban Development Witness (HUD) Relocation Program : This
federal relocation program provides rental assistance in the
form of Section 8 housing vouchers for the relocation of
witnesses in connection with efforts to combat violent crimes
that occur in and around public, Indian, and other
HUD-assisted housing. Since its inception in 1996, HUD's
Office of Inspector General (OIG) has used this program to
successfully relocate hundreds of witnesses and their families
in the United States.
The Witness Relocation Program is designed to offer protection
to persons who are cooperating as witnesses in the
government's efforts to combat violent crimes occurring in and
around HUD-assisted housing. Law enforcement agencies, with
the written concurrence of the appropriate prosecutorial
entity, may request the emergency relocation of a witness (and
their immediate family) who is assisting law enforcement in a
criminal matter and fears retribution, or has been threatened
as a result of the assistance and/or testimony provided.
The OIG facilitates the protection of a witness by removing him
or her and his or her immediate family from potential danger
and relocating them to a secure area selected by the OIG in
cooperation with the relevant federal, state, tribal or local
law enforcement agencies.
Witnesses to violent crimes occurring in or around various
HUD-assisted housing that cooperate with the relevant
governmental law enforcement and prosecutorial agencies in
their investigation and prosecution of the perpetrators are
eligible for the HUD witness relocation program. The witness
(and immediate family) is not required to be a current
resident of the HUD-assisted housing in order to be considered
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eligible for the witness relocation program, but must be
otherwise eligible to receive Section 8 housing voucher
assistance. Final determination of eligibility is made by the
OIG and HUD's Office of Public and Indian Housing.
The Witness Relocation Program was funded and authorized by the
omnibus Appropriations Act of 1996, and has been funded under
every HUD appropriations act since its inception. For 2008,
there was designated $200 million in rental vouchers for all
tenant protection activities, including Witness Relocation
vouchers. The OIG requested approximately $324,000 of this
funding to relocate witnesses and their families to housing in
other localities. (See 8)Arguments in Support :
a) According to the District Attorney, City and County of
San Francisco , "I am writing as the sponsor of SB 748, a
bill to expand protection for participants in the
California WRAP. The bill will prohibit the positing of
personal identifying information about WRAP participants on
the Internet.
"[C]alifornia WRAP is a statewide relocation program for
witnesses who testify against some of the state's most
violent offenders. These witnesses courageously risk their
lives to hold violent offenders accountable. WRAP
participants must uproot their families, move out of their
neighborhoods and start all over.
"Under existing law, there is no prohibition on posting
information about WRAP participants on people search Web
sites available on the Internet. With the continual
expansion and advancement of Internet technology, gang,
drug and interpersonal violence is no longer limited to the
streets. The Internet can be used to find people
threatened by violence. This places a risk to WRAP
participants if information about their new whereabouts can
be discovered. This bill provides additional protection to
help WRAP participants remain anonymous."
b) According to the American Federation of State, County
and Municipal Employees (AFSCME), "AFSCME supports this
bill because the location of witnesses who have been
relocated for their protection needs to be preserved.
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These witnesses have put their lives in harms way by
helping a criminal investigation. From their efforts,
criminals have been placed in jail for major crimes.
Considering the risk these individuals have taken, we owe
them the utmost protection. For no reason should their
whereabouts be presented on any public platform."
c) According to Crime Victims United of California ,
"Increasingly, gang members and other violent offenders are
using technology to search for witnesses or victims who
have testified against them. It is imperative that we
protect these heroic individuals - SB 748 helps ensure
their protection."
9)Prior Legislation :
a) AB 856 (Hertzberg), Chapter 507, Statutes of 1997,
established the Witness Protection Program and required
that the program be administered by the AG
b) SB 1739 (Morrow), Chapter 210, Statutes of 2002, allowed
local and state prosecutors, rather than just the Attorney
General, to select witnesses for inclusion in the Witness
Protection Program.
c) 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 allowed for damages if this disclosure
was made with intent to cause bodily harm.
d) 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.
e) SB 594 (Romero), Chapter 455, Statutes of 2007, renamed
the Witness Protection Program the "WRAP", and included
support, advocacy, and other services for witnesses' safe
transition into a new environment as part of the services
to be reimbursed.
REGISTERED SUPPORT / OPPOSITION :
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Support
American Federation of State, County,
and Municipal Employees
Crime Victims United of California
District Attorney, City and County of San Francisco
District Attorney, Los Angeles County
Victims Foundation
Opposition
None
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744