BILL ANALYSIS
SB 748
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 748 (Leno) - As Amended: April 28, 2009
PROPOSED CONSENT
SENATE VOTE : 39-0
SUBJECT : WITNESS RELOCATION AND ASSISTANCE PROGRAM: ADDRESS
RECORDS
KEY ISSUE : SHOULD THE SENSITIVE PERSONAL IDENTIFYING
INFORMATION OF PARTICIPANTS IN THE WITNESS RELOCATION AND
ASSISTANCE PROGRAM BE MORE CAREFULLY PROTECTED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill seeks to provide further protection
to people participating in the Witness Relocation and Assistance
Program by prohibiting their addresses and telephone numbers
from being posted on the Internet, as specified. The bill
additionally provides 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. The bill has no known opposition.
SUMMARY : Seeks to provide further privacy protections for
people participating in the Witness Relocation and Assistance
Program. Specifically, this bill :
1)Provides that no person or private entity shall post on the
Internet the home address, telephone number, or personal
identifying information that discloses the location of any
witness or witness family member participating in 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. A violation
of that provision will be a misdemeanor.
2)Provides that upon admission to WRAP, local or state
prosecutors shall give each participant a written "opt-out"
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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.
3)Requires 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
specifically prohibits a person, business, or association that
has received an opt-out form from a WRAP participant from
soliciting, selling, or trading the home address or telephone
number of that participant on the Internet.
4)Provides 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.
5)Provides 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, and shall award court
costs and reasonable attorney's fees.
6)Provides 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.
7)States that nothing in this section shall preclude prosecution
under any other provision of law.
EXISTING LAW :
1)Establishes the Witness Relocation and Assistance Program
(WRAP) administered by the Attorney General. WRAP 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
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witness may suffer intimidation or retaliatory violence, the
Attorney General may reimburse state and local agencies for
the costs of providing witness protection services. (Penal
Code Section 14020 and 14022.)
2)Provides that in 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. (Penal Code Section 14023.)
3)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).)
4)Provides 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. (Government Code Section 6254.21(b).)
5)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).)
6)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. (Government Code
Section 6254.21(c)(2).)
7)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
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any person residing at the official's home address.
(Government Code Section 6254.21(d)(1).)
8)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. (Government Code Section
6254.21(d)(2).)
9)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).)
COMMENTS : This non-controversial bill seeks to further protect
people participating in the Witness Relocation and Assistance
Program (WRAP) by prohibiting their addresses and phone numbers
from being posted on the Internet, as specified. In support,
the author states:
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 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
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significant risk to WRAP participants if information about
their new whereabouts can be so readily discovered.
Established in 1997, the 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.
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
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General to be endangered.
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 Section 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. 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:
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.
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 failure
to do so subject to a $5,000 civil fine.
Presumably, this opt-out form would be similar to the opt-out
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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.
Civil Remedies, Including Attorney's Fees . The bill prohibits
any person, business, or association that has received an
opt-out form from a WRAP participant from soliciting, selling,
or trading on the Internet the home address or telephone number
of that participant.
To enforce the above prohibitions, this bill would provide for a
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
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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 witness court costs and
reasonable attorney's fees if a jury finds that a violation has
occurred in an action for injunctive or declaratory relief. In
general, 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).)
REGISTERED SUPPORT / OPPOSITION :
Support
SF District Attorney, Kamala Harris (sponsor)
AFSCME
Crime Victims United
California District Attorneys Association (support in concept)
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334