BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 255 (Cannella)                                           
          As Amended May 7, 2013 
          Hearing date:  June 4, 2013
          Penal Code (Urgency)
          JM:mc

                          ELECTRONIC COMMUNICATION DEVICES: 

                   PROHIBITED DISTRIBUTION OF PERSONAL INFORMATION  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 919 (Houston) - Ch. 584, Stats. 2008

          Support: Crime Victims United of California; California State  
          Sheriffs' Association

          Opposition:American Civil Liberties Union



                                         KEY ISSUE
           
          SHOULD THE ELECTRONIC DISTRIBUTION OF NUDE IMAGES AND IDENTIFYING  
          INFORMATION ABOUT THE PERSON DEPICTED BE A MISDEMEANOR WHERE THE  
          DISTRIBUTION IS DONE WITHOUT CONSENT AND WITH THE INTENT TO  
          EMOTIONALLY DISTRESS OR HUMILATE?







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                                       PURPOSE

          The purpose of this bill is to provide that a person commits a  
          misdemeanor where he or she electronically distributes nude  
          images of and identifying information about another person,  
          where the distribution is done without consent and with the  
          intention to cause serious emotional distress or humiliation of  
          the person depicted.

           
           Stalking, Credible Threats of Harm and Related Crimes
           
            Existing law  defines the crime of "stalking" as repeatedly  
          harassing or following another person in conjunction with the  
          making of a credible threat against that person or his or her  
          immediate family.  Stalking is an alternate felony-misdemeanor  
          punishable by up to one year in the county jail and/or a fine of  
          up to $1000, or by imprisonment in state prison for 16 months, 2  
          or 3 years, and/or a fine of up to $10,000.  (Pen. Code §  
          646.9.)
           
          Existing law  provides that a person who has "suffered  
          harassment" may seek a temporary restraining order and an  
          injunction to prevent such harassment.  "Harassment" is defined  
          thus:  "[U]nlawful violence, a credible threat of violence, or a  
          knowing and willful course of conduct directed at a specific  
          person that seriously alarms, annoys, or harasses the person,  
          and that serves no legitimate purpose.  The course of conduct  
          must be such as would cause a reasonable person to suffer  
          substantial emotional distress, and must actually cause  
          substantial emotional distress to the plaintiff."  (Code. Civ.  
          Proc. § 527.6.)
           
            Existing law includes the crime of making a credible threat of  
          death or great bodily injury, which includes the following  
          elements:  The defendant made the threat orally, in writing or  
          by means of an electronic communication device, with the intent  
          that it be taken as a threat.  The defendant appeared to have  
          the means and intent to carry out the threat such that the  
          victim was placed in sustained fear for his own safety or that  




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          of his immediate family.  This crime is an alternate  
          felony-misdemeanor, punishable by a jail term of up to one year,  
          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.)  

            Existing law  provides that every person who, with intent to  
          annoy, telephones or makes contact by means of an electronic  
          communication device with another and addresses to or about the  
          other person any obscene language, or addresses to the other  
          person any threat to inflict injury to the person or property of  
          the person addressed or any member of his or her family is  
          guilty of a misdemeanor.  The statute does not apply to  
          communication made in good faith.  (Pen. Code § 653m, subd.  
          (a).)

          Existing law  provides that every person who makes repeated  
          telephone calls or makes repeated contacts by means of an  
          electronic communication device with intent to annoy another  
          person at his or her residence is guilty of a misdemeanor.  The  
          crime does not include an element that a conversation took place  
          in the telephone call or electronic contact.  The statute does  
          not apply to communication made in good faith.  (Pen. Code §  
          653m, subd. (b).)

           Existing law  provides that every person who makes repeated  
          telephone calls or makes repeated contact by means of an  
          electronic communication device with the intent to annoy another  
          person at his or her place of work is guilty of a misdemeanor  
          punishable by a fine of not more than $1000, by imprisonment in  
          a county jail for not more than one year, or by both that fine  
          and 

          imprisonment.  Nothing in this subdivision shall apply to  
          telephone calls or electronic contacts made in good faith.  This  
          subdivision applies only if one or both of the following  
          circumstances exist:

             §    There is a temporary restraining order, an injunction,  
               or any other court order, or any combination of these court  




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               orders in effect prohibiting the behavior described in this  
               section.

             §    The person makes repeated telephone calls or contact by  
               means of an electronic communication device with the intent  
               to annoy another person at his or her place of work,  
               totaling more than 10 times in a 24-hour period, whether or  
               not conversation ensues from the call or contact, and the  
               calls or contacts are made to the workplace of an adult or  
               emancipated minor who is a spouse, former spouse,  
               cohabitant, former cohabitant, or person with whom the  
               person has a child or has had, or is having, a dating or  
               engagement relationship.  (Pen. Code § 653m, subd. (c).)

           Existing law  provides that a court may issue an ex parte order  
          enjoining a party from molesting, attacking, striking, stalking,  
          threatening, sexually assaulting, battering, harassing,  
          telephoning, destroying, contacting, coming within a specified  
          distance of, or disturbing the peace of the other party.  Upon a  
          showing of good cause, the order may cover another named family  
          or household members.  (Fam. Code § 6320.)  Any willful  
          violation of such an order is contempt of court, a misdemeanor,  
          with a maximum jail term of one year, a fine of up to $1000, or  
          both.  (Pen. Code § 166, subd. (c).)

           Existing law  provides that any person who willfully disobeys any  
          court order is guilty of contempt of court, a misdemeanor,  
          punishable by up to six months in the county jail, a fine of up  
          to $1000, or both.  (Pen. Code § 16, subd. (a)(4).)

           Existing law  includes protection for providers, employees,  
          volunteers and patients of a reproductive health facility, or  
          persons residing such persons.  These provisions included  
          prohibitions on specified threats and related conduct.  A person  
          covered by this law can seek injunctive relief and money  
          damages, as specified.  (Gov. Code § 6218.)

           Existing law  provide that every person who, with intent to place  
          another person in reasonable fear for his or her safety, or the  
          safety of the other person's immediate family, by means of an  




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          electronic communication device without consent of the other  
          person, and for the purpose of causing that other person  
          unwanted physical contact, injury, or harassment, by a third  
          party, electronically distributes, publishes, e-mails,  
          hyperlinks, or makes available for downloading, personal  
          identifying information, including, but not limited to, a  
          digital image of another person, or an electronic message of a  
          harassing nature about another person, is guilty of a  
          misdemeanor punishable by up to one year in the county jail, by  
          a fine of not more than one thousand dollars ($1000), or by both  
          that fine and imprisonment.  (Pen. Code § 653.2, subd. (a).)


           Existing law  provides that it is a misdemeanor for any person to  
          intentionally harass a child because of the employment status of  
          the child's parent or parents.  The offense is punishable by a  
          six month jail term, a $1000 fine, or both.  A defendant must  
          serve a jail term of at least five days for a second conviction,  
          and at least 30 days for a third or subsequent conviction.   
          (Pen. Code § 11414, subd. (a).)

           Existing law  includes the following definitions:

                 "Harasses" means "knowing and willful conduct directed  
               at a specific child that seriously alarms, annoys,  
               torments, or terrorizes the person, and which serves no  
               legitimate purpose.  The conduct must be such as would  
               cause a reasonable child to suffer substantial emotional  
               distress, and actually cause the victim to suffer that  
               distress."
                 A child, for purposes of this crime, is a person under  
               the age of 16 years.  (Pen. Code 
               § 11414, subd. (a).)

          Identity Theft and Impersonation
           
            Existing law  provides that any person who falsely personates  
          another person is guilty of an alternate felony-misdemeanor.   
          False personation involves intentionally assuming the identity  
          of another person where it is likely that the person whose  




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          identity was assumed could become liable to prosecution, a   
          lawsuit or be subject to a debt or penalty.  The crime is also  
          committed where the defendant intentionally assumed the identity  
          of another person under circumstances where a benefit "might  
          accrue" to the defendant or any other person.  (Pen. Code § 529,  
           3.)
           
            Existing law  provides that one also commits false personation  
          where he or she assumes the identity of another person to 1)  
          become a bail or surety for any party, or 2) verify, publish,  
          acknowledge, or prove any written instrument, with the intent  
          that the writing be recorded, delivered or used as true. (Pen.  
          Code § 529,  2.)
           
          Existing law  provides that it is an alternative  
          felony-misdemeanor for a person to willfully obtain the personal  
          identifying information of another person and to use such  
          information to obtain, or attempt to obtain, credit, goods, or  
          services in the name of the other person without consent.  This  
          alternate felony-misdemeanor is punishable by up to one year in  
          the county jail, a fine of up to $1000, or both, or by  
          imprisonment in state prison for 16 months, 2 or 3 years and a  
          fine of up to $10,000.  (Pen. Code § 530.5.)

           Existing law  provides that every person who, with the intent to  
          defraud, acquires, transfers, or retains possession of the  
          personal identifying information, as defined, of another person  
          is guilty of a public offense; and upon conviction of, shall be  
          punished by imprisonment in a county jail not to exceed one  
          year; a fine not to exceed $1000; or by both that imprisonment  
          and fine.  (Pen. Code § 530.5 (d).)



          Production, Distribution and Possession of Child Pornography
           
          Existing law  provides that every person who sends, brings,  
          possesses, prepares, publishes, produces, duplicates or prints  
          any obscene matter depicting a person under the age of l8 years  
          engaging in or simulating sexual conduct, with the intent to  




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          distribute, exhibit, or exchange such material, is guilty of  
          either a misdemeanor or a felony, punishable by imprisonment in  
          the county jail up to one year or in the state prison for 16  
          months, 2 or 3 years and a fine not to exceed $10,000.  (Pen.  
          Code § 311.1.)

           Existing law  specifies that every person who sends, brings,  
          possesses, prepares, publishes, produces, duplicates or prints  
          any obscene matter depicting a person under the age of 18 years  
          engaging in or simulating sexual conduct for commercial purposes  
          is guilty of a felony, punishable by imprisonment in the state  
          prison for two, three, or six years and a fine up to $100,000.   
          (Pen. Code § 311.2, subd. (b).)

           Existing law  provides that any person who hires or uses a minor  
          to assist in the preparation or distribution of obscene matter  
          is guilty of a misdemeanor.  If the person has a prior  
          conviction, the crime is a felony.  (Pen. Code § 311.4, subd.  
          (a).)

           Existing law  provides that any person who hires or uses a minor  
          to assist in the possession, preparation or distribution of  
          obscene matter for commercial purposes is guilty of a felony,  
          punishable by imprisonment in the state prison for three, six,  
          or eight years.  (Pen. Code § 311.4, subd. (b).)

          New Misdemeanor for Electronic Distribution of Nude Images with  
          the Intent to Humiliate or Cause Emotional Distress
          
           This bill  defines a new misdemeanor with the following elements:

                 The defendant electronically distributed nude images of  
               another person, along with identifying information about  
               the other person.
                 The distribution was done without the consent of the  
               person depicted.
                 The defendant intended that the person depicted  
               experience serious emotional distress or humiliation.
                 This misdemeanor is punishable by imprisonment in a  
               county jail for up to one year, a fine of up to $1,000, or  




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               both.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  




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          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS


          1.  Need for This Bill  

          According to the author:





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               "Cyber revenge" or "revenge porn" refers to the  
               posting of illicit pictures of another person without  
               his or her consent, often as retaliation following a  
               bitter breakup between partners.  Current law is  
               silent as to the illegality of this disturbing  
               practice.

               While the creation, possession, or distribution of  
               sexually-charged images of a minor can be charged  
               according to child pornography prohibitions, the same  
               actions committed against victims over 18 years old do  
               not constitute a crime under current statute.  

               Victims of this cruel act are often so humiliated that  
               they pose a threat to harming themselves, as evidenced  
               by numerous examples of cyber revenge victims who have  
               taken their own lives.  Cyber revenge and its ugly  
               consequences should not be tolerated.  

          2.  Vagueness and Related Issues   

          Specific Vagueness Issues as to the Terms of the Bill
          
          Both the United States and California Constitutions guarantee  
          that no person shall be deprived of life, liberty, or property  
          without due process of law.  Due process requires "a reasonable  
          degree of certainty in legislation, especially in the criminal  
          law ?"  (In re Newbern (1960) 53 Cal.2d  
          786, 792.)  "[A] penal statute must define the criminal offense  
          with sufficient definiteness that ordinary people can understand  
          what conduct is prohibited and in a manner that does not  
          encourage arbitrary and discriminatory enforcement."  (Kolender  
          v. Lawson (1983) 461 U.S. 352, 357.)   

          This bill makes it a misdemeanor to, without consent of the  
          person depicted, electronically distribute, publish or make  
          available for downloading any nude images and personal  
          identifying information of another persons with the intent to  
          cause the person depicted "substantial emotional distress or  
          humiliation."  The bill does not define the term "nude."  The  




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          term appears to have no special meaning in the law, and thus the  
          term would be given its ordinary meaning.  The New Oxford  
          American Dictionary (Oxford Univ. Press, 2005) defines nude as  
          "wearing no clothes, naked."  The bill can thus be interpreted  
          as meaning that the crime has not been committed where the  
          person depicted is wearing any item of clothing, even an item of  
          clothing that would perhaps increase the humiliating nature of  
          the image, such as a depiction of a man wearing an item of  
          women's lingerie.

          The bill does not provide what would constitute "substantial  
          emotional distress or humiliation."  Further, the bill does not  
          include an element that the person depicted would reasonably  
          suffer emotional distress or humiliation because of the nature  
          of the image.  The crime is defined in terms of the intent of  
          the defendant.  As such, a person would appear to be guilty of  
          the crime if he or she intended the person depicted to be  
          emotionally distressed or humiliated, regardless of whether or  
          not a reasonable person would be distressed or humiliated by the  
          image.  A person who posts a nude image with the intent to  
          humiliate the subject of the image could be guilty of the crime  
          even if the person depicted was pleased or gratified by the  
          distribution of the image.

          Element that the Image be Accompanied by Identifying Information
          
          The requirement that the image be accompanied by "personal  
          identifying information" about the person depicted also raises  
          issues about how the bill would be applied.  A defendant could  
          post, send or make available an image of a readily identifiable  
                     person and not be guilty of the crime if no personal identifying  
          information was included with the image.  The defendant could  
          send the image under circumstances where the person depicted is  
          particularly likely to be identified and humiliated - such as  
          sending nude images to the person's spouse, employer, parent or  
          child.  Nevertheless, the defendant could likely have a valid  
          defense to the crime if the image was not accompanied by  
          personal identifying information, such as a name and address,  
          telephone number, driver's license number or other information  
          defined as "personal identifying information" in Penal Code  




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          Section 530.55, which is a section in the identity theft law.

          Application of the Bill to Non-Sexual Circumstances
          
          The context in which the bill arises indicates that the author  
          is concerned about the use of sexual images to humiliate the  
          person depicted.  However, the bill could apply in other  
          contexts, such as an intent to humiliate a person because he or  
          she is obese, or whose appearance could otherwise be subject to  
          ridicule.  

          In sum, the terms of this bill present a number of issues as to  
          how the bill would be applied and interpreted.  It could be  
          difficult for ordinary citizens to understand what the law  
          prohibits or requires.

          DOES THIS BILL RAISE CONSTITUTIONAL ISSUES OF VAGUENESS?

          3.  First Amendment Issues  

          This bill makes it a crime for a person to distribute the nude  
          image of another person with the intent to cause substantial  
          emotional distress or humiliation.  As such, the bill  
          criminalizes a form of expression, which is included within the  
          definition of speech.  (Texas v. Johnson (1989) 491 U.S. 397.)   
          "If there is a bedrock principle underlying the First Amendment,  
          it is that the government may not prohibit the expression of an  
          idea simply because society finds the idea itself offensive or  
          disagreeable."  (Id, at p. 414.)

          Unless a particularly narrow exception applies, protection of  
          expression under the First Amendment is not limited to certain  
          subjects or ideas.  A restriction on the "content" of  
          expression, as distinguished from the time, place and manner of  
          expressions is presumptively invalid.  A content-based  
          restriction on expressive conduct is subject to "strict  
          scrutiny" and must promote a "compelling state interest" by the  
          "least restrictive means" to achieve the compelling interest.   
          (Sable Communications v. FCC (1989) 492 U.S. 115, 126.)  





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          A similar bill to this bill was introduced in the Florida  
          Legislature this year.  The bill failed passage.<1>  The staff  
          analysis of the Florida bill stated:

               In Reno v. American Civil Liberties Union, the United  
               States Supreme Court stated:  "[T]he growth of the  
               Internet has been and continues to be phenomenal.  As  
               a matter of constitutional tradition, in the absence  
               of evidence to the contrary, we presume that  
               governmental regulation of the content of speech is  
               more likely to interfere with the free exchange of  
               ideas than encourage it.  The interest in encouraging  
               freedom of expression in a democratic society  
               outweighs any theoretical but unproven benefit of  
               censorship."

               The bill makes it a crime to knowingly transmit or  
               post to a website or social networking service any  
               photograph or video that depicts nudity of an  
               individual which contains the personal identification  
               information of that individual.  To the extent that  
               the bill regulates content of speech protected by the  
               First Amendment, it could be challenged as being  
               unconstitutional.

          A content-based restriction on expression will be struck down as  
          invalid on its face if it prohibits clearly protected speech, in  
          addition to conduct that may validly be prohibited.  Such a law  
          is said to be unconstitutionally "overbroad."  (U.S. v. Stevens  
          (2010) 130 S.Ct. 1577, 1587.)  Stevens considered a federal  
          statute that criminalized the sale or possession of "depictions  
          of animal cruelty," in order to prohibit fetishistic "crush  
          videos" of the killing of animals for sexual gratification.   
          Stevens was prosecuted for distribution of videos of dog fights  
          and the government argued that the law was limited in intent to  
          such depictions.  The Supreme Court found that the statute was  
          overbroad in that it might reach videos depicting hunting,  
          ---------------------------
          <1>  
          http://www.tallahassee.com/viewart/20130505/NEWS01/305050029/Bill 
          s-failed-2013-Fla-Legislature.



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          arguably inhumane treatment of livestock, or activities legal in  
          some jurisdictions but not others, such as cockfighting.  (Id,  
          at pp. 1588-1592.)   

          Arguably, the crime defined by this bill includes conduct that  
          is protected under the First Amendment or otherwise legal.  The  
          bill could apply to behavior that involves specified use of a  
          photograph that the defendant legally possesses, including where  
          the defendant photographed another person in a public place.   
          For example, this bill could apply where the defendant took a  
          photo of a person at a nude beach that is open to the public.   
          The bill could apply in cases where the person depicted gave the  
          defendant full consent to take and possess the photograph or  
          other image, but then does not consent to distribution of the  
          image.  Depending on the context of the distribution, the  
          defendant could be sued for libel if the image is accompanied by  
          false information that the person depicted is, for example,  
          available for sex with strangers.  

          Courts have long stated that political speech and speech  
          concerning public issues are entitled to great protection under  
          the First Amendment.  (Burson v. Freeman (1992) 504 U.S. 191,  
          Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S.  
          37, 45.)  Political speech can be harsh, and one could conclude  
          that political speech may be intended to humiliate the target  
          of the communication or expressive conduct.  The Weiner  
          incident is one example.  Anthony Wiener posted a semi-nude  
          picture of himself on his public Twitter account.  Although he  
          quickly removed the images, political activists captured the  
          images and re-posted them.  Other images Weiner had sent to a  
          woman in Texas were reposted on the Internet.  False identities  
          were used by activists to target Weiner.<2>  Weiner certainly  
          did not authorize or consent to others, including political  
          activist, reposting the images.  Many of the person who  
          captured and  reposted the images of Weiner could be described  
          as having an intent to humiliate Wiener and cause him emotional  
          ---------------------------
          <2>  
          http://www.nytimes.com/2011/06/18/nyregion/fake-identities-were-u 
          sed-on-twitter-to-get-information-on-weiner.html?ref=anthonydwein 
          er&_r=0.



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          distress. 

          First Amendment issues often overlap vagueness issues.  As  
          concerns this bill, those issues perhaps arise most clearly as  
          concerns the concept of the intent to cause substantial  
          emotional distress.  Criminal law includes crimes involving true  
          threats of harm against another person.  (See, Pen. Code § 422.)  
           Civil law includes the tort (wrong against a private person or  
          entity) of intentional infliction of emotional distress.   
          Intentional infliction of emotional distress involves extreme  
          and outrageous conduct by the defendant that causes the  
          plaintiff severe or extreme emotional distress.  (Hughes v. Pair  
          (2009) 46 Cal.4th 1035, 1050-1051.)  Nevertheless, even speech  
          intended to create substantial emotional distress may be  
          protected by the First Amendment, particularly where the subject  
          of the speech concerns a public issue.  Further, what  
          constitutes a matter of public concern is not well defined.   
          (Snyder v. Phelps (2011) 131 S. Ct. 1207, 1215-1216; Hustler  
          Magazine v. Falwell (1988) 108 S. Ct. 876.)

          IS CONDUCT COVERED BY THIS BILL PROTECTED BY THE FIRST  
          AMENDMENT?

          4.  Incident that Prompted Introduction of the Bill - Suicide of  
            Girl who was Sexually Assaulted and Humiliated by Photos of  
            the Incident - Perpetrators Committed Child Pornography and  
            Sexual Assault Felonies  

          There have been numerous publicized incidents of cyber revenge  
          or humiliation that involved the posting of nude or sexually  
          explicit photos, including a notorious rape case in  
          Steubenville, Ohio.  However, it appears that this bill was  
          specifically prompted by an incident involving a 
          15-year-old girl name Audrie in Saratoga, California.  Audrie  
          became very intoxicated to the point of unconsciousness at a  
          party.  Three boys - Audrie's high school classmates - took off 








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          some or much of her clothing, sexually assaulted her, wrote  
          crude and demeaning phrases on her body and took at least one  
          cell-phone photo of an intimate part of her body.  She awoke in  
          the morning to find her shorts pulled down and the crude  
          drawings or words on her body.  When the photo was shown to  
          other students at school, Audrie became very distraught.<3>   
          About a week later, Audrie hung herself.

          The boys involved in the incident have been charged in juvenile  
          court with sexual battery and distribution of child pornography.  
          <4>  Sexual battery is an alternate felony-misdemeanor, with a  
          felony imprisonment term of two, three or four years.   
          Possession of child pornography is an alternate  
          felony-misdemeanor, with a felony imprisonment term of 16  
          months, two year, or three years.  Distribution of child  
          pornography to a minor is a felony.

          Audrie's parents have argued that the boys involved in the  
          incident should be tried as adults.  Assuming that the boys were  
          at least 16 years old at the time of the incident, the  
          prosecutor could seek an order transferring the boys to adult  
          court.  To prevail, the prosecutor would be required to show  
          that boys are un-amenable to treatment in juvenile court under  
          five factors concerning the nature and sophistication of the  
          crime, the delinquency records of the boys and their amenability  
          to rehabilitation.  The court shall transfer a minor to adult  
          court if the prosecutor establishes any one of the factors.   
          (Welf. & Inst. Code § 707, subd. (a).)  Media reports indicate  
          that the boys are not likely to be tried as adults, but that is  
          also not clear.  The boys have been released to home detention  
          ---------------------------
          <3> Media reports indicated that the photos were widely  
          distributed at school and uploaded to social media.  However,  
          the school paper reported that about 10 students saw the photo,  
          which was not uploaded to social media.   
          http://www.dailymail.co.uk/news/article-2331089/Audrie-Pott-Famil 
          y-girl-killed-maintains-subjected-humiliation-cyber-bullying.html 
          ?ito=feeds-newsxml.
          <4>  
          http://www.santacruzsentinel.com/localnews/ci_23322813/girls-suic 
          ide-after-alleged-attack-troubles-town.



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                                                          SB 255 (Cannella)
                                                                      PageQ

          pending the jurisdictional hearing (trial) in juvenile court.<5>

          WHERE A PERSON DISTRIBUTES NUDE IMAGES OF A MINOR, HAS THE  
          PERSON LIKELY COMMITTED MULTIPLE CHILD PORNOGRAPHY CRIMES?

          5.  Cyber Revenge Case from Tulare County  

          An unpublished appellate case in Tulare County illustrates the  
          use of cyber revenge to harass, defame and humiliate a former  
          spouse or partner.<6>  Michael Rosa sought revenge against his  
          former spouse Jennifer.  Ross threatened to kill Jennifer if she  
          left him and threatened to kill Jennifer's new husband.  Rosa  
          posted false Internet ads that included nude photos of Jennifer  
          and false solicitations for men to meet her for oral sex.   
          Numerous men telephoned and came to her place of employment at a  
          bank.  Rosa was charged with and convicted of numerous counts of  
          stalking, false personation, identity theft and unauthorized  
          electronic distribution of identifying information.

          The decision also noted that Rosa was civilly liable for  
          defaming Jennifer because of the false sexual solicitations.  In  
          many cases of the posting of nude images of another with the  
          intent to distress or humiliate, the person who posted the  
          images may be civilly liable for defamation and intentional  
          infliction of emotional distress.

          WHERE A PERSON FRADULENTLY POSTS NUDE PHOTOS AND FALSE  
          SOLICITATIONS IN THE IMAGE OF ANOTHER PERSON, CAN THE PERSON WHO  
          POSTED THE MATERIAL BE CHARGED WITH IDENTITY THEFT AND RELATED  
          CRIMES?

          CAN SUCH BEHAVIOR ALSO BE THE GROUNDS FOR CIVIL SUITS ALLEGING  
          ---------------------------
          <5>  
          http://www.dailymail.co.uk/news/article-2331089/Audrie-Pott-Famil 
          y-girl-killed-maintains-subjected-humiliation-cyber-bullying.html 
          ?ito=feeds-newsxml.
          <6>  
          http://www.lexis.com/research/retrieve?_m=eb1aa980bb8720dcd21b0e4 
          7d41a2ca7&csvc=le&cform=byCitation&_fmtstr=FULL&docnum=1&_startdo 
          c=1&wchp=dGLbVzV-zSkAA&_md5=6d4313184f8723366ff76beb7ef79be0.











                                                          SB 255 (Cannella)
                                                                      PageR

          DEFAMATION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?


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