BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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          |SENATE RULES COMMITTEE            |                        SB 255|
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                                    THIRD READING


          Bill No:  SB 255
          Author:   Cannella (R), et al.
          Amended:  6/17/13
          Vote:     27 - Urgency


           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/4/13
          AYES:  Hancock, Anderson, Block, De León, Knight, Liu, Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  6-0, 7/1/13
          AYES:  De León, Walters, Gaines, Hill, Lara, Steinberg
          NO VOTE RECORDED:  Padilla


           SUBJECT  :    Electronic communication devices:  prohibited  
          distribution of personal information.

           SOURCE  :     Author


           DIGEST  :    This bill provides that any person who photographs or  
          records by any means the image of another person without his or  
          her consent who is in a state of full or partial undress in an  
          area in which the person has a reasonable expectation of  
          privacy, and subsequently distributes the image taken which  
          could cause a reasonable person to suffer serious emotional  
          distress, is guilty of a misdemeanor.

           ANALYSIS :    

          Existing law:

          1.Provides that a person who has "suffered harassment" may seek  
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            a temporary restraining order and an injunction to prevent  
            such harassment.

          2.Includes the crime of making a credible threat of death or  
            great bodily injury, which includes the following elements:   
            (a) 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; (b) 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/her own safety  
            or that of his/her immediate family; and (c) his/her 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, two years or  
            three years and a fine of up to $10,000.
           
           3.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/her  
            family is guilty of a misdemeanor.  The statute does not apply  
            to communication made in good faith.

          4.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/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.

          5.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/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.

          6.Includes protection for providers, employees, volunteers and  
            patients of a reproductive health facility, or persons  
            residing such persons.  These provisions included prohibitions  

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            on specified threats and related conduct.  A person covered by  
            this law can seek injunctive relief and money damages, as  
            specified.

          7.Provides that every person who, with intent to place another  
            person in reasonable fear for his/her safety, or the safety of  
            the other person's immediate family, by means of an 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  
            $1000, or by both that fine and imprisonment.

          8.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, 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.

          9.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  
            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, two or three years and a fine not to exceed  
            $10,000.

          This bill defines a new misdemeanor with the following elements:

             A.   The defendant electronically distributed nude images of  
               another person, along with identifying information about  
               the other person.

             B.   The distribution was done without the consent of the  
               person depicted.

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             C.   The defendant intended that the person depicted  
               experience serious emotional distress or humiliation.

             D.   This misdemeanor is punishable by imprisonment in a  
               county jail for up to one year, a fine of up to $1,000, or  
               both.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

           Potential ongoing court-related costs for new misdemeanor  
            filings of $24,000 (General Fund*) for every 50 additional  
            filings per year.

           Non-reimbursable local costs for enforcement offset to a  
            degree by fine revenue.
           While the impact of this bill independently on local jails is  
            likely to be minor, the cumulative effect of new misdemeanors  
            could create General Fund cost pressure on capital outlay,  
            staffing, programming, the courts, and other resources in the  
            context of criminal justice realignment.

          *Trial Court Trust Fund

           SUPPORT  :   (Verified  7/2/13)

          California Partnership to End Domestic Violence
          California Sheriffs' Association
          Crime Victims Action Alliance
          Crime Victims United of California

           OPPOSITION  :    (Verified  7/2/13)

          American Civil Liberties Union

           ARGUMENTS IN SUPPORT  :    According to the author:

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

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               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."

           ARGUMENTS IN OPPOSITION  :    The ACLU states, "The posting of  
          otherwise lawful speech or images even if offensive or  
          emotionally distressing is constitutionally protected.  The  
          speech must constitute a true threat or violate another  
          otherwise lawful criminal law, such as stalking or harassment  
          statute, in order to be made illegal.  The provisions of this  
          bill do not meet that standard.  (See e.g., United States v.  
          Cassidy, (D.Md.2011) 814 F. Supp. 2d 574), wherein the state  
          sought to prosecute a defendant who had tweeted and blogged  
          offensively about a religious figure in Maryland because the  
          defendant intended to harass and cause substantial emotional  
          distress and succeeded in causing such distress.  The court held  
          that such conduct could not present a crime.  We urge the author  
          to reconsider this proposal."  
           

          JG:ej  7/3/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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