BILL ANALYSIS Ó
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UNFINISHED BUSINESS
Bill No: SB 255
Author: Cannella (R), et al.
Amended: 9/3/13
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
SENATE FLOOR : 37-1, 8/15/13
AYES: Anderson, Beall, Berryhill, Block, Calderon, Cannella,
Corbett, De León, DeSaulnier, Emmerson, Evans, Fuller, Gaines,
Galgiani, Hancock, Hernandez, Hill, Hueso, Huff, Jackson,
Knight, Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla,
Pavley, Roth, Steinberg, Torres, Vidak, Walters, Wolk, Wright,
Wyland
NOES: Yee
NO VOTE RECORDED: Correa, Vacancy
ASSEMBLY FLOOR : Not available
SUBJECT : Electronic communication devices: prohibited
distribution of personal information
SOURCE : Author
DIGEST : This bill creates a new misdemeanor for the
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distribution of an image of an identifiable person's intimate
body parts which had been taken with an understanding that the
image would remain private, commonly referred to as "revenge
porn."
Assembly Amendments (1) clarify what is meant by full or partial
undress; (2) remove the location of the photo as a factor and
instead clarify that the parties must have had an understanding
that the photo remain private; and (3) states that this bill
does not preclude prosecution, as specified.
ANALYSIS :
Existing law:
1.Provides that a person who has "suffered harassment" may seek
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
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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
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
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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:
1.Provides that any person who photographs or records by any
means the image of another identifiable person's intimate body
parts under circumstances where the parties agree or
understand that the image shall remain private, and
subsequently distributes that image with the intent to cause
serious emotional distress, and where the person depicted does
suffer serious emotional distress, is guilty of a misdemeanor.
2.Defines "intimate body parts" as "any portion of the genitals,
and in the case of a female, also includes any portion of the
breasts below the top of the areola, that is either uncovered
or visible through less than fully opaque clothing."
3.Specifies that nothing in this subdivision will preclude
punishment under any other section of law providing for
greater punishment.
4.Contains an urgency clause.
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,
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staffing, programming, the courts, and other resources in the
context of criminal justice realignment.
*Trial Court Trust Fund
SUPPORT : (Verified 9/10/13)
California Partnership to End Domestic Violence
California Sheriffs' Association
Crime Victims Action Alliance
Crime Victims United of California
OPPOSITION : (Verified 9/10/13)
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
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
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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:n 9/11/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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