Amended in Assembly April 7, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 32

Introduced by Assembly Member Waldron

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(Coauthors: Assembly Members Chávez, Jones)

end insert begin insert

(Coauthor: Senator Allen)

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December 1, 2014

An act to amend Sections 502 and 803 of the Penal Code, relating to computer crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 32, as amended, Waldron. Computer crimes.

Existing law establishes various crimes relating to computer services and systems, including to knowingly and without permission disrupt or cause the disruption of computer services including government computer services or public safety infrastructure computer system computer services, add, alter, damage, delete, or destroy any computer data, software, or program, introduce a computer contaminant, use the Internet domain name or profile of another. Existing law makes a violation of these provisions punishable by specified fines or terms of imprisonment, or by both those fines and imprisonment. Existing law establishes the time begin delete limitations end delete begin insert limitation end insert during which a criminal complaint begin insert for a violation of these provisions end insert may be filed.

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This bill would make the commission of any of those crimes that involves acquiring, copying, or distributing a digital image of a person that displays an intimate body part, as defined, of the person additionally punishable by a fine not exceeding $10,000 per each digital image acquired, copied, or distributed. The bill would, notwithstanding any of those other time limitations, permit a criminal complaint alleging a violation described in the bill to be filed within one year of the date on which that violation was discovered.

end delete begin insert

This bill would increase the fine for a misdemeanor violation of those crimes from a fine not exceeding $5,000 to a fine not exceeding $10,000. The bill would toll, until discovery of the offense, the time for filing a criminal complaint for a violation of those provisions when it is alleged that the defendant acquired, copied, or distributed a digital image of an intimate body part, as defined, of a person.

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

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 begin delete devices end delete begin insert devices, end insert 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
begin delete functions end delete begin insert functions, end insert 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 begin delete or end delete begin insert of end insert 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 begin delete of end delete begin insert or end insert 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), (5), (10), (11), or (12) 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 begin delete five thousand dollars
($5,000), end delete begin insert ten thousand dollars ($10,000), end insert 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 begin delete five
thousand dollars ($5,000), end delete begin insert ten thousand dollars ($10,000), end insert 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 begin delete five thousand dollars
($5,000), end delete begin insert ten thousand dollars ($10,000), end insert 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), (7), or (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 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 begin delete five
thousand dollars ($5,000), end delete begin insert ten thousand dollars ($10,000), end insert 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 begin delete five thousand dollars ($5,000), end delete begin insert ten thousand dollars
($10,000), end insert 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) or (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 begin delete five thousand
dollars ($5,000), end delete begin insert ten thousand dollars ($10,000), end insert 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 exceeding one thousand dollars
($1,000).

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding begin delete five thousand dollars
($5,000), end delete begin insert ten thousand dollars ($10,000), end insert or by imprisonment in
a county jail not exceeding one year, or by both that fine and
imprisonment.

(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, to the employer or another, or provided that the value
of supplies or computer services 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.

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(l) (1) A person who commits a violation of this section that
involves acquiring, copying, or distributing one or more digital
images of a person that displays an intimate body part of the person
is subject to a fine not exceeding ten thousand dollars ($10,000)
per each image acquired, copied, or distributed.

(2) A fine imposed pursuant to this subdivision is in addition
to any other penalty or punishment provided for conduct that
violates this subdivision.

(3) A fine pursuant to this subdivision may be imposed only
pursuant to an action brought by a district attorney.

(4) As used in this subdivision, “intimate body part” means any
portion of the genitals, the anus, 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 clearly visible through clothing.

end delete

SEC. 2.  

Section 803 of the Penal Code is amended to read:

803.  

(a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.

(b) No time during which prosecution of the same person for
the same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.

(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in
this subdivision. This subdivision applies to an offense punishable
by imprisonment in the state prison or imprisonment pursuant to
subdivision (h) of Section 1170, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult,
or the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:

(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.

(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.

(3) A violation of Section 25540, of any type, or Section 25541
of the Corporations Code.

(4) A violation of Section 1090 or 27443 of the Government
Code.

(5) Felony welfare fraud or Medi-Cal fraud in violation of
Section 11483 or 14107 of the Welfare and Institutions Code.

(6) Felony insurance fraud in violation of Section 548 or 550
of this code or begin insert former Section 1871.1, or end insert Section 1871.4 of the
Insurance Code.

(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.

(8) A violation of Section 22430 of the Business and Professions
Code.

(9) A violation of Section 103800 of the Health and Safety
Code.

(10) A violation of Section 529a.

(11) A violation of subdivision (d) or (e) of Section 368.

(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which
the defendant is not within the state shall be a part of those
limitations.

(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could
have reasonably been discovered, with regard to offenses under
Division 7 (commencing with Section 13000) of the Water Code,
under Chapter 6.5 (commencing with Section 25100) of, Chapter
6.7 (commencing with Section 25280) of, or Chapter 6.8
(commencing with Section 25300) of, Division 20 of, or Part 4
(commencing with Section 41500) of Division 26 of, the Health
and Safety Code, or under Section 386, or offenses under Chapter
5 (commencing with Section 2000) of Division 2 of, Chapter 9
(commencing with Section 4000) of Division 2 of, Section 6126
of, Chapter 10 (commencing with Section 7301) of Division 3 of,
or Chapter 19.5 (commencing with Section 22440) of Division 8
of, the Business and Professions Code.

(f) (1) Notwithstanding any other limitation of time described
in this chapter, a criminal complaint may be filed within one year
of the date of a report to a California law enforcement agency by
a person of any age alleging that he or she, while under the age of
18 years, was the victim of a crime described in Section 261, 286,
288, 288a, 288.5, or begin delete 289. end delete begin insert 289, or Section 289.5 as enacted by
Chapter 293 of the Statutes of 1991 relating to penetration by an
unknown object. end insert

(2) This subdivision applies only if all of the following occur:

(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.

(B) The crime involved substantial sexual conduct, as described
in subdivision (b) of Section 1203.066, excluding masturbation
that is not mutual.

(C) There is independent evidence that corroborates the victim’s
allegation. If the victim was 21 years of age or older at the time
of the report, the independent evidence shall clearly and
convincingly corroborate the victim’s allegation.

(3) No evidence may be used to corroborate the victim’s
allegation that otherwise would be inadmissible during trial.
Independent evidence does not include the opinions of mental
health professionals.

(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final disclosure
of evidence to the investigating or prosecuting agency, if that
disclosure is ordered pursuant to the subpoena after the litigation.

(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.

(C) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.

(g) (1) Notwithstanding any other limitation of time described
in this chapter, a criminal complaint may be filed within one year
of the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions
are met:

(A) The crime is one that is described in subdivision (c) of
Section 290.

(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type
no later than two years from the date of the offense.

(2) For purposes of this section, “DNA” means deoxyribonucleic
acid.

(h) For any crime, the proof of which depends substantially
upon evidence that was seized under a warrant, but which is
unavailable to the prosecuting authority under the procedures
described in People v. Superior Court (Laff) (2001) 25 Cal.4th
703, People v. Superior Court (Bauman & Rose) (1995) 37
Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
claims of evidentiary privilege or attorney work product, the
limitation of time prescribed in this chapter shall be tolled from
the time of the seizure until final disclosure of the evidence to the
prosecuting authority. Nothing in this section otherwise affects
the definition or applicability of any evidentiary privilege or
attorney work product.

(i) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which a hidden recording is discovered related to a
violation of paragraph (2) or (3) of subdivision (j) of Section 647.

(j) Notwithstanding any other limitation of time described in
this chapter, if a person flees the scene of an accident that caused
death or permanent, serious injury, as defined in subdivision (d)
of Section 20001 of the Vehicle Code, a criminal complaint brought
pursuant to paragraph (2) of subdivision (b) of Section 20001 of
the Vehicle Code may be filed within the applicable time period
described in Section 801 or 802 or one year after the person is
initially identified by law enforcement as a suspect in the
commission of the offense, whichever is later, but in no case later
than six years after the commission of the offense.

begin delete

(k) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint alleging a violation described
in subdivision (l) of Section 502 may be filed within one year of
the date on which the alleged violation is discovered.

end delete

begin insert (k) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert A limitation of time prescribed in this chapter for an
offense described in subdivision (c) of Section 502 for which it is
alleged the defendant acquired, copied, or distributed one or more
digital images of a person that displays an intimate body part of
the person shall not commence to run until the discovery of the
offense. end insert

begin insert

(2) As used in this subdivision, “intimate body part” means any
portion of the genitals, the anus, 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 clearly visible through clothing.

end insert begin insert

(3) As used in this subdivision, “digital images of a person” do
not include representational images, artwork, or cartoon drawings.

end insert