BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 636 (Corbett)
As Amended March 31, 2011
Hearing Date: April 12, 2011
Fiscal: Yes
Urgency: No
BCP:rm
SUBJECT
Personal Information: Internet Disclosure Prohibition
DESCRIPTION
The Safe at Home program allows victims of domestic violence or
stalking, and reproductive health care services providers,
employees, volunteers, and patients, to apply to the Secretary
of State to request an alternate address to be used in public
records. This bill would enhance protections for victims of
domestic violence and stalking who are participants in the
program by:
Prohibiting the public posting or display on the
Internet of the home address or home telephone number, and
in certain cases the image, of the participant with the
intent to incite harm or threaten safety, or after a
written demand;
Prohibiting the solicitation, sale, or trading on the
Internet of the home address, home telephone number, or
image of a victim of domestic violence or stalking, with
the intent to incite harm or threaten safety, as specified;
and
Authorizing a person whose information was publicly
posted or displayed on the Internet in violation of any of
the named prohibitions to seek injunctive or declaratory
relief or, in certain cases, three times the actual damages
but in no case less than $4,000.
This bill would provide that an interactive computer service or
access software provider would not be liable under the above
provisions, except as specified.
(more)
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This bill would also make it a crime to maliciously post the
home address, phone number or personal identifying information
of a participant, as specified, and limit the circumstances in
which a participant's address may be disclosed by the Secretary
of State.
BACKGROUND
The Safe at Home program, created by SB 489 (Alpert, Chapter
1005, Statutes of 1998) allows victims of domestic violence or
stalking to apply to the Secretary of State to request an
alternate address to be used in public records. The purpose of
that program is to "enable state and local agencies to respond
to requests for public records without disclosing the changed
name or location of a victim of domestic violence or stalking .
. ." (Gov. Code Sec. 6205.) The Secretary of State is tasked
with providing a substitute, publicly accessible address for
these victims while protecting their actual residences or
locations. The Secretary also acts as the program participants'
agent for service of process and forwards mail received at the
substitute address provided. A program participant, once
certified, may stay in the program for four years, after which
re-certification is required.
In 2002, the Safe at Home program was expanded to include
reproductive health care services providers, employees,
volunteers, and patients with the purpose of preventing
potential acts of violence from being committed against
providers, employees, and volunteers who assist in the provision
of reproductive health care services and the patients seeking
those services. (AB 797 (Shelley, Chapter 380, Statutes of
2002).) According to the Safe at Home 2009 Legislative Report,
there are 2,437 active participants in the program, and 4,974
participants have been served since the program's inception in
1999.
This bill would additionally protect participants in the Safe at
Home program by allowing victims of domestic violence or
stalking to, among other things, request that their personal
information be removed from Internet Web sites, and, prohibit
the posting of that information when it would threaten the
person in a manner that places the person in objectively
reasonable fear for his or her personal safety. The proposed
protection would be similar to that available to reproductive
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health care providers, employees, volunteers, and patients.
This bill is double-referred to the Senate Committee on Public
Safety.
CHANGES TO EXISTING LAW
1. Existing law establishes an address confidentiality program
to which victims of domestic violence, sexual assault, or
stalking may apply by completing an application in person at a
community-based victims' assistance program. The application
is approved by the Secretary of State for the purpose of
enabling state and local agencies to respond to requests for
public records without disclosing a program participant's
residence address contained in any public record and otherwise
provide for confidentiality of identity for that person.
(Gov. Code Sec. 6205 et seq.) Existing law establishes a
similar address confidentiality program for reproductive
health care services providers, employees, volunteers, and
patients. (Gov. Code Sec. 6215 et seq.)
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
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).)
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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).)
Existing law provides similar protections for individuals
associated with a reproductive health care service provider,
and individuals participating in the Witness Relocation and
Assistance Program (WRAP). (Gov. Code 6218 et seq.; Pen. Code
Sec. 14029.5.)
This bill would, for purposes of the program for victims of
domestic violence or stalking, enact similar provisions that
would protect the address and phone number of those
participants in the Safe at Home program. Specifically, this
bill would:
Prohibit any person, business, or association from
knowingly and intentionally publicly posting or displaying
on the Internet the home address, phone number, or image of
any participant or other individual residing at the same
address with the intent to: (1) incite a third person to
cause great imminent bodily harm to the person identified;
or (2) threaten the person in a manner that places the
person in objectively reasonable fear for his or her
personal safety. A participant whose home address, phone
number or image is made public in violation of that
prohibition may: (1) bring an action for injunctive or
declaratory relief, and if awarded, receive costs and
reasonable attorneys fees; and/or (2) bring an action for
money damages, in which case the court would be required to
award three times actual damages, but in no case less than
$4,000.
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Prohibit any person, business, or association from
intentionally publicly posting or displaying on the
Internet the home address or phone number if the person has
made a written demand not to disclose their address or
phone number. The demand must include a sworn statement
declaring that the person is subject to the protection by
the section and describe a reasonable fear of safety, as
specified. That demand shall be effective for four years,
regardless of whether the individual's participation in the
program has expired during that period. A participant
whose home address or phone number is made public as a
result of the failure to honor the above demand may bring
an action for declaratory or injunctive relief. If a
violation is found to occur, the court or jury may grant
injunctive or declaratory relief and award the plaintiff
court costs and attorneys fees.
This bill would additionally prohibit any person, business, or
association from soliciting, selling, or trading on the
Internet the home address, phone number, or image of a
participant with the intent to: (1) incite a third person to
cause imminent great bodily harm to the person identified in
the posting or display where the third party is likely to
commit this harm; or (2) threaten the person identified in the
posting or display in a manner that places the person
identified in objectively reasonable fear for his or her
personal safety. This bill would provide that a participant
whose address or phone number is solicited, sold or traded in
violation of the prohibition may bring an action in a court of
competent jurisdiction and authorize the jury or court to
award damages up to three times the actual damages, but in no
case less than $4,000.
This bill would provide that an interactive computer service
or access software provider shall not be liable for violations
of the above provisions unless the service or provider intends
to abet or cause bodily harm that is likely to occur or
threatens to cause bodily harm to a participant or person
residing at the same address.
This bill would additionally provide that no person shall
maliciously, and with the intent to obstruct justice or the
due administration of the laws, or with the intent that
another person imminently use that information to commit a
crime involving violence or a threat of violence, post on the
Internet the home address, phone number, or personal
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identifying information of a program participant or family
members who are participating in the program. A violation of
this provision would be a misdemeanor, punishable by a fine of
up to $2,500, imprisonment of up to six months, or both;
violations that lead to the bodily injury of a participant or
their family members would be a misdemeanor, punishable by a
fine of up to $5,000, imprisonment up to one year, or both.
This bill would enact an identical provision that would apply
to individuals associated with reproductive health care
services who are participants in the Safe at Home program.
2. Existing law allows a participant to withdraw from the Safe
at Home program, and authorizes the address confidentiality
program manager to terminate a participant's certification for
specified reasons, including the use of false information or
using the program as subterfuge. (Gov. Code Secs. 6206.7,
6215.4.)
Existing law prohibits the Secretary of State from making a
program participant's address available for inspection or
copying except: (1) if requested by a law enforcement agency,
to that agency; (2) if directed by a court order, to a person
identified in the order; or (3) if the certification has been
cancelled. (Gov. Code Secs. 6208, 6215.7.)
This bill would narrow the provision allowing the Secretary of
State to make the address available if certification has been
cancelled, and, instead, permit the Secretary of State to make
the address available if the certification has been terminated
because either: (1) false information was used in the
application process; or (2) participation in the program is
being used as subterfuge to avoid detection of illegal or
criminal activity or apprehension by law enforcement.
COMMENT
1. Stated need for the bill
According to the author:
Since 1999, California's Safe at Home Program has helped
protect the personal information of over 4,500 survivors of
domestic violence, stalking, and sexual assault. Although
participants in the program have the ability to obtain a
mailing address from the Secretary of State that can be used
as their official address on government documents in order
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to protect the confidentiality of their actual addresses,
they do not have the legal right to have their personal
identifying information removed from public websites, even
though the information may compromise their safety.
. . . SB 636 seeks to provide further protection to
individuals participating in the Safe at Home Program by
prohibiting their addresses and telephone numbers from being
posted on the Internet, and establishing crimes for
publishing or failing to remove their identifying
information.
2. Protection against disclosure on the Internet
The Legislature has previously recognized that specified
individuals' personal information 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. AB 2251 (Evans,
Chapter 486, Statutes of 2006) enacted similar prohibitions with
regard to specified individuals associated with a reproductive
health care service provider, and SB 748 (Leno, Chapter 613,
Statutes of 2009) enacted related provisions that protected
individuals participating in the Witness Relocation and
Assistance Program (WRAP).
This bill would similarly protect victims of domestic violence
and stalking who are participants in the Safe at Home program by
enacting provisions nearly identical to those that protect
participants associated with reproductive health care services.
With the exception of the criminal provision discussed in
Comment 3, those protections are in two parts: (1) provisions
that protect against disclosure when no written demand was
received; and (2) provisions that require removal upon the
receipt of a written demand.
a. Prohibition when no written demand was received
Any prohibition on disclosure must be carefully balanced with
the rights of the speaker (the individual posting or
displaying the information online) to articulate their
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viewpoint. In this case, the prohibitions seek to prevent the
public disclosure of personal information about individuals
who have already sought to keep their address confidential by
participating in the Secretary of State's Safe at Home
Program. These participants, victims of domestic violence or
stalking, have demonstrated that their safety is potentially
at risk if their personal information is released.
Furthermore, the prohibitions themselves are generally
consistent with existing prohibitions that have not been found
to unduly infringe upon the rights of the speaker.
Analogous to existing law relating to reproductive health care
workers, this bill would prohibit the knowing public posting
or display of a participant's home address, phone number, or
image with the intent to: (1) incite a third person to cause
imminent great bodily harm to the person identified, or a
coresident, where the third person is likely to commit that
harm; or (2) threaten the person identified in the posting or
display, or a coresident, in a manner that places the person
identified or the coresident in objectively reasonable fear
for his or her safety.
Those two standards are based upon the United States Supreme
Court's holdings in Virginia v. Black (2003) 538 U.S. 343 and
Brandenberg v. Ohio (1969) 395 U.S. 444. In
upholding a Virginia statute that made it unlawful to burn a
cross "with the intent of intimidating any person or group of
persons," the Supreme Court reiterated that "true threats" are
not protected by the First Amendment. (Virginia at 348.) The
Supreme Court has also previously held that speech may be
prohibited if it is "directed to inciting or producing
imminent lawless action and is likely to incite or produce
such action." (Brandenberg v. Ohio, 395 U.S. at 447.) Just as
intentional and genuine threats of violence do not enjoy First
Amendment protection, neither do statements that are intended
to incite, and likely will incite, imminent unlawful action.
This bill combines the tests articulated in Virginia v. Black
and Brandenberg by incorporating the requirements of "intent
to incite harm" and "intent to threaten harm that places a
person in reasonable fear for his or her safety" in two of the
three situations addressed by the prohibitions against
Internet postings. Those two prohibitions would appear to be
vital protections for individuals who are arguably at risk of
violence from their abuser or stalker, and be an appropriate
area for the Legislature to enact a prior restraint on speech
that could immediately harm or threaten an individual.
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To enforce the above prohibitions, a participant whose
address, phone number or image is made public as the result of
a violation may bring an action seeking injunctive or
declaratory relief and receive court costs and reasonable
attorney's fees if a violation is found, and/or seek up to
three times actual damages (minimum damages are set at
$4,000). Although the general rule governing attorney's fees
in the United States is that each party must bear the costs of
his or her own attorney, the proposed shifting of fees is
arguably appropriate in this circumstance due to the
importance of enabling injured participants to seek relief.
Absent that provision, victims may be unable to afford the
cost of legal fees, which, in turn, could prevent them from
taking action to protect themselves as permitted under this
bill.
It should also be noted that existing law relating to
reproductive health care facilities contains a virtually
identical provision authorizing attorney's fees under similar
circumstances.
b. Prohibition when a written demand is received
This bill would allow a participant to make a written demand
that a person, business or association not disclose their
address or phone number on the Internet. That demand must
include a sworn statement that the person is protected by the
provision and describe a reasonable fear for the safety of
that individual. The demand would be effective for four
years, regardless of whether his or her participation in the
Safe at Home program has expired.
Unlike the situation described above in Comment 2(a), this
prohibition would apply most often in circumstances where the
business posting the information on the Internet is unaware of
the individual's participation in the Safe at Home program,
and that they may be entitled to greater protection. The
ability to submit a demand to those businesses would hopefully
enable the participant to be proactive and request the removal
of that information before it causes injury (or reaches an
unwanted stalker). If a participant's information becomes
public as the result of a failure to honor the demand, that
participant may bring an action for injunctive or declaratory
relief and if successful, receive court costs and attorney's
fees. Analogous to the allowance for attorney's fees
discussed in Comment 2(a), this award also appears to be
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appropriate in order to further the important protections
provided by this bill.
Staff notes that, consistent with AB 2251, this bill would
exempt newspaper and other media as provided in Section 1070
of the Evidence Code.
3. Prohibition on solicitation, sale, or trade
This bill would also prohibit a person, business or association
from soliciting, selling, or trading the home address, phone
number, or image on the Internet with the intent to: (1) incite
a third person to cause imminent great bodily harm, as
specified; or (2) threaten the person identified, as specified.
That provision is also consistent with the prohibitions that
apply to individuals associated with reproductive health service
facilities, and similarly permits a participant to bring an
action if his or her personal information is solicited, sold or
traded in violation, and requires damages to be awarded for any
violation (minimal damages of $4,000).
4. Immunity for interactive computer service or access software
providers
This bill would provide interactive computer services and access
software providers with immunity except in limited circumstances
for the posting of home addresses, home telephone numbers, or
images of these protected individuals. That provision is
identical to the immunity enacted by AB 2251, which, according
to this Committee's analysis addressed the concerns of "Internet
service providers who contend that they are merely conduits for
the posting or display of the information on the user's page and
that they have nothing to do with the contents of the website or
webpage."
As a result, under SB 636, liability of an internet service or
access software provider would attach only if it posted,
displayed, or solicited the information (home address, home
telephone number, images) with intent to "abet or cause bodily
harm that is likely to occur or threatens to cause bodily harm
to a participant or any person residing at the same home
address."
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5. Criminal prohibitions
In addition to the above civil provisions, this bill would add a
criminal prohibition to protect participants of the Safe at Home
program who are victims of domestic violence or stalking, and
those who are associated with a reproductive health service
facility. Those provisions, added to both portions of the Safe
at Home program, would provide that no person shall maliciously,
and with the intent to obstruct justice or the due
administration of laws, or with the intent that another person
imminently use that information to commit a crime, as specified,
post the participant's home address, phone number, or personally
identifying information. Similar to the above prohibitions,
that provision would also apply to individuals residing at the
same home address.
Violation of the above prohibition would be a misdemeanor with a
fine up to $2,500, and/or imprisonment of up to six months in a
jail; violations that lead to bodily injury are also
misdemeanors but carry a fine of up to $5,000 and/or
imprisonment of up to one year in jail. Staff notes that those
provisions are similar to existing prohibitions that apply to
posting personal information of law enforcement officers. (Pen.
Code Sec. 146e.)
If approved by this Committee, this bill will be sent to the
Senate Public Safety Committee for evaluation of this, and
other, provisions.
6. Confidentiality of address after cancellation
Under existing law, the Secretary of State may provide the
address of a participant under three circumstances: (1) if
requested by a law enforcement agency, as specified; (2) if
directed by a court order; (3) if the certification has been
cancelled. This bill would modify the third criteria to ensure
that the participant's address remains confidential unless the
termination is due to a determination by the address
confidentiality program manager that "false information . . .
Ýwas] used in the application process or that participation in
the program is being used as a subterfuge to avoid detection of
illegal or criminal activity or apprehension by law
enforcement."
As a result, participant's information would remain confidential
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unless their participation is terminated for those reasons,
thus, even where a participant inadvertently allows his or her
registration to lapse, the information would be protected.
Support : California District Attorneys Association; Crime
Victims United of California; Debra Bowen, Secretary of State;
Survivors in Action
Opposition : None Known
HISTORY
Source : Privacy Rights Clearinghouse
Related Pending Legislation : None Known
Prior Legislation :
AB 1595 (Evans, Chapter 343, Statutes of 2005), see Comment 2.
AB 2251 (Evans, Chapter 486, Statutes of 2006), see Comment 2.
SB 748 (Leno, Chapter 613, Statutes of 2009), see Comment 2.
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