Amended in Assembly April 1, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1649

Introduced by Assembly Member Waldron

February 11, 2014

An act to amend Section 502 of the Penal Code, relating to computer crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 1649, as amended, Waldron. Computer crimes.

(1) Existing law makes it a crime to knowingly and without permission disrupt or cause the disruption of computer services or deny or cause the denial of computer services to an authorized user of a computer, computer system, or computer network. Existing law makes a violation of this provision punishable by a fine not exceeding $10,000, or by imprisonment in a county jail for 16 months, or 2 or 3 years, or by both that fine and imprisonment, or by a fine not exceeding $5,000, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

This bill would begin delete increase the fine to $20,000 for a felony violation, and to $10,000 for a misdemeanor violation, end delete begin insert make it a crime end insert for a person begin delete who end delete begin insert to end insert knowingly and without permission begin delete disrupts end delete begin insert disrupt end insert or begin delete causes end delete begin insert cause end insert the disruption of government computer services or public safety infrastructure computer system computer services, as defined, or begin delete denies or causes end delete begin insert deny or cause end insert the denial of government computer services or public safety infrastructure computer system computer services to an authorized user. begin insert The bill would make a violation of these provisions punishable in the same manner as the above provisions of existing law. end insert

(2) Existing law makes it a crime to knowingly access and without permission add, alter, damage, delete, or destroy any data, computer software, or computer program which resides or exists internal or external to a computer, computer system, or computer network. Existing law makes a violation of this provision punishable by a fine not exceeding $10,000, or by imprisonment in a county jail for 16 months, or 2 or 3 years, or by both that fine and imprisonment, or by a fine not exceeding $5,000, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

This bill would begin delete increase the fine to $20,000 for a felony violation, and to $10,000 for a misdemeanor violation, end delete begin insert make it a crime end insert for a person begin delete who end delete begin insert to end insert knowingly begin delete accesses end delete begin insert access end insert and without permission begin delete adds, alters, damages, deletes, or destroys end delete begin insert add, alter, delete, or destroy end insert any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network. begin insert The bill would make a violation of these provisions punishable in the same manner as the above provisions of existing law. end insert

(3) Existing law makes it a crime to knowingly and without permission provide or assist in providing a means of accessing a computer, computer system, or computer network in violation of law. Existing law makes a violation this provision punishable by a fine not exceeding $1,000 for a first violation that does not result in injury, by a fine not exceeding $5,000, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment for a violation that results in a victim expenditure in an amount not greater than $5,000, or for a 2nd or subsequent violation, and by a fine not exceeding $10,000, or by imprisonment in a county jail for 16 months, or 2 or 3 years, or by both that fine and imprisonment, or by a fine not exceeding $5,000, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, for a violation that results in a victim expenditure in an amount greater than $5,000.

The bill would begin delete increase the fine to $2,000 for a first violation that does not result in injury, to $10,000 for a violation that results in a victim expenditure in an amount not greater than $5,000, or for a 2nd or subsequent violation, and to $20,000 for a felony violation and to $10,000 for a misdemeanor violation, for a violation that results in victim expenditure in an amount greater than $5,000 end delete begin insert make it a crime end insert for any person begin delete who end delete begin insert to end insert knowingly and without permission begin delete provides or assists end delete begin insert provide or assist end insert in providing a means of accessing a public safety infrastructure computer system computer, computer system, or computer network. begin insert The bill would make a violation of these provisions punishable in the same manner as the above provisions of existing law. end insert

(4) Existing law makes it a crime to knowingly introduce a computer contaminant into any computer, computer system, or computer network. Existing law makes a violation of this provision punishable by a fine not exceeding $5,000, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, for a first violation that does not result in injury, and by a fine not exceeding $10,000, or by imprisonment in a county jail not exceeding one year, or by imprisonment in a county jail for 16 months, 2 or 3 years, or by both that fine and imprisonment for a violation that results in injury, or for a 2nd or subsequent violation.

begin insert

This bill would make it a crime for any person to knowingly introduce any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network. The bill would make a violation of these provisions punishable in the same manner as the above provisions of existing law.

end insert begin delete

This bill would increase the fine to $10,000 for a first violation that does not result in injury, and to $20,000 for a violation that results in injury, or for a 2nd or subsequent violation.

end delete

(5) Existing law makes it a crime to knowingly and without permission use the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and to thereby damage a computer, computer system, or computer network. Existing law makes a violation of these provisions punishable by a fine of $1,000 for a first violation that does not cause injury, and by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $5,000, or by both that fine and imprisonment, for a violation that results in injury or for a 2nd or subsequent offense.

This bill would revise this crime to apply to any person who knowingly and without permission uses the Internet domain name or profile, as defined, of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby causes damage. The bill would define electronic mail for these purposes. By expanding the definition of a crime, this bill would impose a state-mandated local program.

The bill would also revise the definitions of “access,” “computer network,” and “computer services” for purposes of these provisions.

(6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 502 of the Penal Code is amended to
read:

502.  

(a) It is the intent of the Legislature in enacting this
section to expand the degree of protection afforded to individuals,
businesses, and governmental agencies from tampering,
interference, damage, and unauthorized access to lawfully created
computer data and computer systems. The Legislature finds and
declares that the proliferation of computer technology has resulted
in a concomitant proliferation of computer crime and other forms
of unauthorized access to computers, computer systems, and
computer data.

The Legislature further finds and declares that protection of the
integrity of all types and forms of lawfully created computers,
computer systems, and computer data is vital to the protection of
the privacy of individuals as well as to the well-being of financial
institutions, business concerns, governmental agencies, and others
within this state that lawfully utilize those computers, computer
systems, and data.

(b) For the purposes of this section, the following terms have
the following meanings:

(1) “Access” means to gain entry to, instruct, cause input to,
cause output from, cause data processing with, or communicate
with, the logical, arithmetical, or memory function resources of a
computer, computer system, or computer network.

(2) “Computer network” means any system that provides
communications between one or more computer systems and
input/output devices including, but not limited to, display terminals,
remote systems, mobile devices, and printers connected by
telecommunication facilities.

(3) “Computer program or software” means a set of instructions
or statements, and related data, that when executed in actual or
modified form, cause a computer, computer system, or computer
network to perform specified functions.

(4) “Computer services” includes, but is not limited to, computer
time, data processing, or storage functions, Internet services,
electronic mail services, electronic message services, or other uses
of a computer, computer system, or computer network.

(5) “Computer system” means a device or collection of devices,
including support devices and excluding calculators that are not
programmable and capable of being used in conjunction with
external files, one or more of which contain computer programs,
electronic instructions, input data, and output data, that performs
functions including, but not limited to, logic, arithmetic, data
storage and retrieval, communication, and control.

(6) “Government computer system” means any computer system,
or part thereof, that is owned, operated, or used by any federal,
state, or local governmental entity.

(7) “Public safety infrastructure computer system” means any
computer system, or part thereof, that is necessary for the health
and safety of the public including computer systems owned,
operated, or used by drinking water and wastewater treatment
facilities, hospitals, emergency service providers,
telecommunication companies, and gas and electric utility
companies.

(8) “Data” means a representation of information, knowledge,
facts, concepts, computer software, computer programs or
instructions. Data may be in any form, in storage media, or as
stored in the memory of the computer or in transit or presented on
a display device.

(9) “Supporting documentation” includes, but is not limited to,
all information, in any form, pertaining to the design, construction,
classification, implementation, use, or modification of a computer,
computer system, computer network, computer program, or
computer software, which information is not generally available
to the public and is necessary for the operation of a computer,
computer system, computer network, computer program, or
computer software.

(10) “Injury” means any alteration, deletion, damage, or
destruction of a computer system, computer network, computer
program, or data caused by the access, or the denial of access to
legitimate users of a computer system, network, or program.

(11) “Victim expenditure” means any expenditure reasonably
and necessarily incurred by the owner or lessee to verify that a
computer system, computer network, computer program, or data
was or was not altered, deleted, damaged, or destroyed by the
access.

(12) “Computer contaminant” means any set of computer
instructions that are designed to modify, damage, destroy, record,
or transmit information within a computer, computer system, or
computer network without the intent or permission of the owner
of the information. They include, but are not limited to, a group
of computer instructions commonly called viruses or worms, that
are self-replicating or self-propagating and are designed to
contaminate other computer programs or computer data, consume
computer resources, modify, destroy, record, or transmit data, or
in some other fashion usurp the normal operation of the computer,
computer system, or computer network.

(13) “Internet domain name” means a globally unique,
hierarchical reference to an Internet host or service, assigned
through centralized Internet naming authorities, comprising a series
of character strings separated by periods, with the rightmost
character string specifying the top of the hierarchy.

(14) “Electronic mail” means an electronic message or computer
file that is transmitted between two or more telecommunications
devices; computers; computer networks, regardless of whether the
network is a local, regional, or global network; or electronic devices
capable or receiving electronic messages, regardless of whether
the message is converted to hard copy format after receipt, viewed
upon transmission, or stored for later retrieval.

(15) “Profile” means either of the following:

(A) A configuration of user data required by a computer so that
the user may access programs or services and have the desired
functionality on that computer.

(B) An Internet Web site user’s personal page or section of a
page that is made up of data, in text of graphical form, that displays
significant, unique, or identifying information, including, but not
limited to, listing acquaintances, interests, associations, activities,
or personal statements.

(c) Except as provided in subdivision (h), any person who
commits any of the following acts is guilty of a public offense:

(1) Knowingly accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer, computer
system, or computer network in order to either (A) devise or
execute any scheme or artifice to defraud, deceive, or extort, or
(B) wrongfully control or obtain money, property, or data.

(2) Knowingly accesses and without permission takes, copies,
or makes use of any data from a computer, computer system, or
computer network, or takes or copies any supporting
documentation, whether existing or residing internal or external
to a computer, computer system, or computer network.

(3) Knowingly and without permission uses or causes to be used
computer services.

(4) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
computer, computer system, or computer network.

(5) Knowingly and without permission disrupts or causes the
disruption of computer services or denies or causes the denial of
computer services to an authorized user of a computer, computer
system, or computer network.

(6) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
computer network in violation of this section.

(7) Knowingly and without permission accesses or causes to be
accessed any computer, computer system, or computer network.

(8) Knowingly introduces any computer contaminant into any
computer, computer system, or computer network.

(9) Knowingly and without permission uses the Internet domain
name or profile of another individual, corporation, or entity in
connection with the sending of one or more electronic mail
messages or posts and thereby damages or causes damage to a
computer, computer data, computer system, or computer network.

(10) Knowingly and without permission disrupts or causes the
disruption of government computer services or denies or causes
the denial of government computer services to an authorized user
of a government computer, computer system, or computer network.

(11) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
public safety infrastructure computer system computer, computer
system, or computer network.

(12) Knowingly and without permission disrupts or causes the
disruption of public safety infrastructure computer system computer
services or denies or causes the denial of computer services to an
authorized user of a public safety infrastructure computer system
computer, computer system, or computer network.

(13) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
public safety infrastructure computer system computer, computer
system, or computer network in violation of this section.

(14) Knowingly introduces any computer contaminant into any
public safety infrastructure computer system computer, computer
system, or computer network.

(d) (1) Any person who violates any of the provisions of
paragraph (1), (2), (4), begin delete or end delete (5) begin insert , (10), (11), or (12) end insert of subdivision (c)
is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, or by both that
fine and imprisonment, or by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.

(2) Any person who violates paragraph (3) of subdivision (c)
is punishable as follows:

(A) For the first violation that does not result in injury, and
where the value of the computer services used does not exceed
nine hundred fifty dollars ($950), by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(B) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000) or in an injury,
or if the value of the computer services used exceeds nine hundred
fifty dollars ($950), or for any second or subsequent violation, by
a fine not exceeding ten thousand dollars ($10,000), or by
imprisonment pursuant to subdivision (h) of Section 1170 for 16
months, or two or three years, or by both that fine and
imprisonment, or by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment.

(3) Any person who violates paragraph (6) begin delete or end delete begin insert , end insert (7) begin insert , or (13) end insert of
subdivision (c) is punishable as follows:

(A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding one thousand dollars
($1,000).

(B) For any violation that results in a victim expenditure in an
amount not greater than five thousand dollars ($5,000), or for a
second or subsequent violation, by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(C) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000), by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment
pursuant to subdivision (h) of Section 1170 for 16 months, or two
or three years, or by both that fine and imprisonment, or by a fine
not exceeding five thousand dollars ($5,000), or by imprisonment
in a county jail not exceeding one year, or by both that fine and
imprisonment.

(4) Any person who violates paragraph (8) begin insert or (14) end insert of subdivision
(c) is punishable as follows:

(A) For a first violation that does not result in injury, a
misdemeanor punishable by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding one
year, or by imprisonment pursuant to subdivision (h) of Section
1170, or by both that fine and imprisonment.

(5) Any person who violates paragraph (9) of subdivision (c)
is punishable as follows:

(A) For a first violation that does not result in injury, an
infraction punishable by a fine not begin insert exceeding end insert one thousand dollars
begin insert ($1,000) end insert .

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment.

begin delete

(6) Any person who violates paragraph (10) of subdivision (c)
is punishable by a fine not exceeding twenty thousand dollars
($20,000), or by imprisonment pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, or by both that
fine and imprisonment, or by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(7) Any person who violates any of the provisions of paragraph
(11) or (12) of subdivision (c) is punishable by a fine not exceeding
twenty thousand dollars ($20,000), or by imprisonment pursuant
to subdivision (h) of Section 1170 for 16 months, or two or three
years, or by both that fine and imprisonment, or by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in
a county jail not exceeding one year, or by both that fine and
imprisonment.

(8) Any person who violates paragraph (13) of subdivision (c)
is punishable as follows:

(A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding two thousand dollars
($2,000).

(B) For a violation that results in a victim expenditure in an
amount not greater than five thousand dollars ($5,000), or for a
second or subsequent violation, by a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment in a county jail
not exceeding one year, or by both that fine and imprisonment.

(C) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000), by a fine not
exceeding twenty thousand dollars ($20,000), or by imprisonment
pursuant to subdivision (h) of Section 1170 for 16 months, or two
or three years, or by both that fine and imprisonment, or by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment
in a county jail not exceeding one year, or by both that fine and
imprisonment.

(9) Any person who violates paragraph (14) of subdivision (c)
is punishable as follows:

(A) For a first violation that does not result in injury, a
misdemeanor punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding twenty thousand
dollars ($20,000), or by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision
(h) of Section 1170, or by both that fine and imprisonment.

end delete

(e) (1) In addition to any other civil remedy available, the owner
or lessee of the computer, computer system, computer network,
computer program, or data who suffers damage or loss by reason
of a violation of any of the provisions of subdivision (c) may bring
a civil action against the violator for compensatory damages and
injunctive relief or other equitable relief. Compensatory damages
shall include any expenditure reasonably and necessarily incurred
by the owner or lessee to verify that a computer system, computer
network, computer program, or data was or was not altered,
damaged, or deleted by the access. For the purposes of actions
authorized by this subdivision, the conduct of an unemancipated
minor shall be imputed to the parent or legal guardian having
control or custody of the minor, pursuant to the provisions of
Section 1714.1 of the Civil Code.

(2) In any action brought pursuant to this subdivision the court
may award reasonable attorney’s fees.

(3) A community college, state university, or academic
institution accredited in this state is required to include
computer-related crimes as a specific violation of college or
university student conduct policies and regulations that may subject
a student to disciplinary sanctions up to and including dismissal
from the academic institution. This paragraph shall not apply to
the University of California unless the Board of Regents adopts a
resolution to that effect.

(4) In any action brought pursuant to this subdivision for a
willful violation of the provisions of subdivision (c), where it is
proved by clear and convincing evidence that a defendant has been
guilty of oppression, fraud, or malice as defined in subdivision (c)
of Section 3294 of the Civil Code, the court may additionally award
punitive or exemplary damages.

(5) No action may be brought pursuant to this subdivision unless
it is initiated within three years of the date of the act complained
of, or the date of the discovery of the damage, whichever is later.

(f) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this state
which applies or may apply to any transaction, nor shall it make
illegal any employee labor relations activities that are within the
scope and protection of state or federal labor laws.

(g) Any computer, computer system, computer network, or any
software or data, owned by the defendant, that is used during the
commission of any public offense described in subdivision (c) or
any computer, owned by the defendant, which is used as a
repository for the storage of software or data illegally obtained in
violation of subdivision (c) shall be subject to forfeiture, as
specified in Section 502.01.

(h) (1) Subdivision (c) does not apply to punish any acts which
are committed by a person within the scope of his or her lawful
employment. For purposes of this section, a person acts within the
scope of his or her employment when he or she performs acts
which are reasonably necessary to the performance of his or her
work assignment.

(2) Paragraph (3) of subdivision (c) does not apply to penalize
any acts committed by a person acting outside of his or her lawful
employment, provided that the employee’s activities do not cause
an injury, begin delete as defined in paragraph (8) of subdivision (b), end delete to the
employer or another, or provided that the value of supplies or
computer services begin delete , as defined in paragraph (4) of subdivision (b), end delete
which are used does not exceed an accumulated total of two
hundred fifty dollars ($250).

(i) No activity exempted from prosecution under paragraph (2)
of subdivision (h) which incidentally violates paragraph (2), (4),
or (7) of subdivision (c) shall be prosecuted under those paragraphs.

(j) For purposes of bringing a civil or a criminal action under
this section, a person who causes, by any means, the access of a
computer, computer system, or computer network in one
jurisdiction from another jurisdiction is deemed to have personally
accessed the computer, computer system, or computer network in
each jurisdiction.

(k) In determining the terms and conditions applicable to a
person convicted of a violation of this section the court shall
consider the following:

(1) The court shall consider prohibitions on access to and use
of computers.

(2) Except as otherwise required by law, the court shall consider
alternate sentencing, including community service, if the defendant
shows remorse and recognition of the wrongdoing, and an
inclination not to repeat the offense.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.