BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
6
3
6
SB 636 (Corbett)
As Amended April 14, 2011
Hearing date: May 3, 2011
Government Code
AA:dl
PERSONAL INFORMATION:
INTERNET DISCLOSURE
HISTORY
Source: Author; Privacy Rights Clearinghouse
Prior Legislation: SB 748 (Leno) - Ch. 613, Stats. 2009
SB 1062 (Bowen) - Ch. 639, Stats. 2006
AB 797 (Shelley) - Chapter 380, Stats. 2002
SB 1318 (Alpert) Ch. 562, Stats. 2000
SB 489 (Alpert) - Ch. 1005, Stats. 1998
Support: California Partnership to End Domestic Violence; Crime
Victims United of
California; Secretary of State Debra Bowen; California District
Attorneys Association; Survivors in Action
Opposition:None known
KEY ISSUE
SHOULD NEW MISDEMEANOR PENALTIES BE ENACTED FOR POSTING THE HOME
(More)
SB 636 (Corbett)
Page 2
ADDRESS, PHONE NUMBER, OR PERSONAL IDENTIFYING INFORMATION OF A
"SAFE AT HOME" PROGRAM PARTICIPANT (DOMESTIC VIOLENCE AND STALKING
VICTIMS), OR SPECIFIED PERSONS ASSOCIATED WITH A REPRODUCTIVE HEALTH
SERVICES FACILITY, WITH THE INTENT THAT ANOTHER PERSON IMMINENTLY
USE THAT INFORMATION TO COMMIT A CRIME INVOLVING VIOLENCE OR A
THREAT OF VIOLENCE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to make specified changes in law
relating to the disclosure of protected personal information
about domestic violence and stalking victims, including changes
to the "Safe at Home" program, as specified. With respect to
the jurisdiction of this Committee, this bill would enact new
misdemeanor penalties to post the home address, phone number, or
personal identifying information of a "Safe at Home" program
participant, or specified persons associated with a reproductive
health services facility, with the intent that another person
imminently use that information to commit a crime involving
violence or a threat of violence, as specified.
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
(More)
SB 636 (Corbett)
Page 3
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).)
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
(More)
SB 636 (Corbett)
Page 4
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 enact, for purposes of the program for victims
of domestic violence or stalking, 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.
" Prohibit any person, business, or association
from knowingly and 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
(More)
SB 636 (Corbett)
Page 5
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 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.
New Criminal Penalties
Current law includes the crime of making a credible threat of
(More)
SB 636 (Corbett)
Page 6
death or great bodily injury, which includes the following
elements: The defendant made the threat "verbally," in writing
or by means of an electronic communication device and with the
intent that it be taken as a threat; and it appears that the
defendant had the means and intent to carry out the threat such
that the victim was placed in sustained fear for his own safety
or that of his immediate family. This crime is a wobbler,
punishable by a jail term of up to one year in jail, a fine of
up to $1000, or both, or by imprisonment in a state prison for
16 months, 2 years or 3 years and a fine of up to $10,000.
(Pen. Code 422.)
This bill would provide that no person shall post, with the
intent that another person imminently use that information to
commit a crime involving violence or a threat of violence
against the participant or the program participant's family
members who are participating in the program on the Internet the
home address, phone number, or personal 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, jail for 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, jail up to
one year, or both.
This bill also would enact an identical new criminal penalty
provision that would apply to individuals associated with
reproductive health care services who are participants in the
Safe at Home program.
Effect of Certification Cancellation
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.)
(More)
SB 636 (Corbett)
Page 7
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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
(More)
SB 636 (Corbett)
Page 8
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states:
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 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.
Participants in the Safe at Home program may request
that businesses, including internet websites, remove
personal identifying information about the participant
from their records, but there is no requirement in
existing law for them to do so. Because program
(More)
SB 636 (Corbett)
Page 9
participants are endangered when their personal
identifying information is publicized, they should be
able to protect their personal identifying
information.
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.
SB 636 would, among other things:
Require the prompt removal of the home
address and phone number by the website upon receipt
of a SAH participant's written request;
Prohibit the Internet solicitation, sale, or
trade of that personal identifying information;
Provide for injunctive and declaratory
relief (which includes court costs and attorney's
fees), the ability to bring a civil action for
damages, and various criminal penalties.
2. What This Bill Would Do
As explained above, this bill addresses the sharing of personal
information protected under the "Safe at Home" program. The
bill has been heard in Senate Judiciary Committee, which
addressed the civil issues of the bill and passed the bill (4-0)
on April 12th of this year. The bill was double-referred to
this Committee because of its proposed criminal penalties
pertaining to posting protected information on the Internet.
These penalties, which concern protected information about
stalking or domestic violence victims or persons associated with
a reproductive health services facilities, would apply where a
person posts, "with the intent that another person imminently
(More)
SB 636 (Corbett)
Page 10
use that information to commit a crime involving violence or a
threat of violence against the participant or the program
participant's family members who are participating in the
program on the Internet the home address, the telephone number,
or personal identifying information of a program participant or
the program participant's family members who are participating
in the program." (emphasis added.) The penalty for this crime
would be as follows:
" A misdemeanor punishable by a fine of up to $2,500, jail up to
six months in a county jail, or both; or
" A misdemeanor punishable by a fine of up to $5,000, jail up to
a year in county jail, or both, if the violation leads to
bodily injury, as specified.
With penalty assessments (approximately 280%) the $2500 would be
a total fine of up to $9500, and the $5,000 fine would be up to
$19,000.
The language provides nothing in these provisions would preclude
prosecution under any other law.
This language is similar to that enacted by SB 748 (Leno) in
2009, concerning persons in the Witness Relocation and
Assistance Program.
SHOULD IT BE A MISDEMEANOR TO POST THE ADDRESS OF A PERSON OR
ENTITY PROTECTED BY THE "SAFE AT HOME" PROGRAM WITH THE INTENT
THAT ANOTHER PERSON "IMMINENTLY USE THAT INFORMATION" TO COMMIT
A CRIME INVOLVING VIOLENCE OR THE THREAT OF VIOLENCE?
(More)
IS IT LIKELY THAT THE ELEMENTS OF THIS NEW CRIME EVER COULD BE
MET? IF SO, WOULD THIS CIRCUMSTANCE BE MORE LIKELY TO BE
PROSECUTED UNDER ANOTHER, MORE SERIOUS CRIMINAL STATUTE?
***************
(More)