BILL ANALYSIS Ó AB 32 Page 1 Date of Hearing: March 24, 2015 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 32 (Waldron) - As Introduced December 1, 2014 As Proposed to be Amended in Committee SUMMARY: Increases specified fines related to computer crimes from a maximum of five thousand dollars ($5,000), to a maximum of ten thousand dollars ($10,000), and tolls the statute of limitations for illegally acquiring digital images of a person that displays an intimate body part of a person. Specifically, this bill: 1)Increases fines from a fine of up to five thousand dollars ($5,000) to a fine of up to ten thousand dollars ($10,000) for the following offenses: a) Knowingly access and without permission altering, damaging, deleting, destroying, or otherwise use 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. b) Knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or AB 32 Page 2 computer network, or take or copy any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network. c) Knowingly and without permission use or cause to be used computer services. d) Knowingly access and without permission add, alter, damage, delete, or destroy any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. e) 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. f) Second or subsequent violations of 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. g) Second or subsequent violations of knowingly and without permission accessing or causing to be accessed any computer, computer system, or computer network. h) Knowingly introducing any computer contaminant into any computer, computer system, or computer network. AB 32 Page 3 i) Second or subsequent violations of knowingly and without permission using 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 damaging or causing damage to a computer, computer data, computer system, or computer network. j) Knowingly and without permission disrupting or causing the disruption of government computer services or denying or causing the denial of government computer services to an authorized user of a government computer, computer system, or computer network. aa) Knowingly accessing and without permission adding, altering, damaging, deleting, or destroying 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. bb) Knowingly and without permission disrupting or causing the disruption of public safety infrastructure computer system computer services or denying or causing the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network. cc) Second or subsequent violations of knowingly and without permission providing or assisting in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, AB 32 Page 4 or computer network in violation of this section. dd) Knowingly introducing any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network. 2)Provides that the statute of limitations does not commence to run until the discovery of specified computer hacking offenses in which it is alleged that the defendant acquired, copied, or distributed one or more digital images of a person that displays an intimate body part of the person. Includes the following definitions: a) Defines "intimate body part" as 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; and b) Defines "digital images of a person" as not including representational images, artwork, or cartoon drawings. EXISTING LAW: 1)Punishes the following offenses by a fine not exceeding $10,000, by a sentenced felony jail term of 16 months, two years or three years, or both, or as a misdemeanor by a fine not exceeding $5,000, by imprisonment in a county jail not exceeding one year, or both: (Pen. Code, § 502(d)(1).) a) Any person who knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either devise or execute any scheme or artifice to defraud, deceive, or extort, or wrongfully control or obtain money, property, or data. (Pen. Code, § 502(c)(1).) AB 32 Page 5 b) Any person who 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. (Pen. Code, § 502(c)(2).) c) Any person who 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. (Pen. Code, § 502(c)(4).) d) Any person who 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. (Pen. Code, § 502(c)(5).) e) Any person who 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. (Pen. Code, § 502(c)(10).) f) Any person who 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. (Pen. Code, § 502(c)(11).) AB 32 Page 6 g) Any person who 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. (Pen. Code, § 502(c)(12).) 2)Punishes any person who knowingly and without permission uses or causes to be used computer services as follows: (Pen Code, § 502(c)(3).) 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. (Pen. Code, § 502(d)(2).) 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 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. (Pen. Code, § 502(d)(2).) 3)Punishes any person who knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network as follows: (Pen. Code, § 502(c)(6).) AB 32 Page 7 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. (Pen. Code, § 502(d)(3).) 4)Punishes any person who knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network as follows: (Pen. Code, § 502(c)(7).) 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 AB 32 Page 8 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. (Pen. Code, § 502(d)(3).) 5)Punishes any person who 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 as follows: (Pen. Code, § 502(c)(11).) 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 AB 32 Page 9 exceeding one year, or by both that fine and imprisonment. (Pen. Code, § 502(d)(3).) 6)Punishes any person who knowingly introduces any computer contaminant into any computer, computer system, or computer network as follows: (Pen. Code, § 502(c)(8).) 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, or by both that fine and imprisonment. (Pen. Code, § 502(d)(4).) 7)Punishes any person who knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network as follows: (Pen. Code, § 502(c)(14).) 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, or by both that fine and imprisonment. (Pen. Code, § 502(d)(4).) AB 32 Page 10 8)Punishes any person who 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. (Pen. Code, § 502(c)(9).) 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 five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (Pen. Code, § 502(d)(5).) 9)Defines the following terms as follows: a) "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. (Pen. Code, § 502(b)(1).) b) "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. (Pen. Code, § 502(b)(2).) c) "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. (Pen. Code, § 502(b)(3).) AB 32 Page 11 d) "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. (Pen. Code, § 502(b)(4).) e) "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. (Pen. Code, § 502(b)(5).) f) "Government computer system" means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity. (Pen. Code, § 502(b)(6).) g) "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. (Pen. Code, § 502(b)(7).) h) "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 AB 32 Page 12 as stored in the memory of the computer or in transit or presented on a display device. (Pen. Code, § 502(b)(8).) i) "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. (Pen. Code, § 502(b)(9).) j) "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. (Pen. Code, § 502(b)(10).) aa) "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. (Pen. Code, § 502(b)(11).) bb) "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 AB 32 Page 13 resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network. (Pen. Code, § 502(b)(12).) cc) "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. (Pen. Code, § 502(b)(13).) dd) "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. (Pen. Code, § 502(b)(14).) ee) "Profile" means either of the following: i) 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; or ii) An Internet website 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. (Pen. Code, § 502(b)(15).) AB 32 Page 14 FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Cyber criminals compromise personal information for individual gain or to merely cause a disruption. This year, The California Department of Motor Vehicles computer system was hacked causing a data security breach in its credit card processing services. Existing fines are just a small sum compared to the dollar who have been violated. Ordinary computer hacking penalties do not sufficiently capture the emotional trauma and hardship that such data breach can cause. AB 32 will make crimes involving computer hacking punishable by up to $10,000 for misdemeanor offenses. It is important to keep up with the new emerging computer crimes to make sure that the violators do not go unpunished and to prevent future crimes in such circumstances. 2)Growing Concerns Regarding Privacy of Personal Images and the Internet: In recent years the attention of the media and policymakers has turned to privacy concerns raised by the sheer volume of data shared over internet connections. With the advent of wireless internet, more data is being transmitted than ever before through cyberspace. Over the last couple of years several serious incidents of the invasion of privacy have come to the forefront of national attention. (Opinion: the Biggest Privacy Outrages in 2014, Los Angeles Times, by Jon Healey). In August and September of 2014, dozens of women (including Jennifer Lawrence) had revealing photos misappropriated from Apple's iCloud storage site and they were posted on the AB 32 Page 15 "4chan" bulletin board for the public to view. Apple represents that the site was not hacked, but others believe that the photos were obtained by guessing the passwords of the victims. The incident alerted the public to the fact that many people's phones may be copying material automatically to the internet. In October of 2014 an unknown hacker assembled a gallery of more than 100,000 images and videos that people had sent via Snapchat. Snapchat markets itself as a web based mobile application that allows users to send photos and videos to one another in a format that can only be viewed by the recipient, not copied or saved by the recipient. As it turns out, other web developers have created systems that enable users to make permanent copies of the temporary Snapchat files and store them in "the cloud" wherein they can be obtained by knowledgeable hackers. 3)Penalty Assessments: The amount spelled out in statute as a fine for violating a criminal offense are base figures, as these amounts are subject to statutorily-imposed penalty assessments, such as fees and surcharges. Assuming a defendant is fined the maximum fine of $10,000 under Penal Code Section 502, the following penalty assessments would be imposed pursuant to the Government and Penal codes: ------------------------------------------------------- |Base Fine: |$10,000.| | | 00| | | | | | | |----------------------------------------------+--------| | | | | | | | | | |----------------------------------------------+--------| AB 32 Page 16 |Penal Code § 1464 assessment ($10 for every |$10,000.| |$10): | 00| | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.7 assessment (20% |$2,000.0| |surcharge): | 0| | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.8 assessment ($40 per | $40.00| |criminal offense): | | | | | | | | |----------------------------------------------+--------| |Government Code § 70372 assessment ($5 for |$5,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 70373 assessment ($30 for | $30.00| |felony or misdemeanor offense): | | | | | | | | |----------------------------------------------+--------| |Government Code § 76000 assessment ($7 for |$7,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 76000.5 assessment ($2 for |$2,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 76104.6 assessment ($1 for |$1,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 76104.7 assessment ($4 for |$4,000.0| |every $10): | 0| AB 32 Page 17 | | | | | | |----------------------------------------------+--------| | | | | | | | | | |----------------------------------------------+--------| |Fine with Assessments: | | | |$41,070.00*| | | | | | | ------------------------------------------------------- *In addition to the assessments detailed in the chart, the defendant could be subject to pay "actual administrative costs" related to his or her arrest and booking (Gov. Code, § 29550 et seq.) and victim restitution for damages impose by the court. 4)"Cyber Revenge" or "Revenge Porn": Recently, there have been numerous publicized incidents of cyber revenge or revenge porn which involves the posting of nude or sexually explicit photos without the consent of the person depicted. While not every incident of revenge porn would involve illegally obtaining the photos by hacking into a computer system, revenge porn incidents can overlap with the privacy interests addressed in this bill. 5)Proposed Amendments: The proposed amendments modify the bill significantly from the introduced version. As introduced this bill added a second fine of up to $10,000 per image for a violation of specified sections of Penal Code § 502 when the image in question is of an intimate body part, as defined by the bill. In lieu of the additional fine, this bill raises the maximum fine for the offenses in Penal Code § 502 that were a maximum of $5,000 to fines with a maximum of $10,000. Additionally, the amendments maintain an extension of the statute of limitations for Penal Code § 502 offenses involving photographs of intimate body parts until the discovery of the AB 32 Page 18 photographs, as specified. All letters that were written in support and in opposition of the bill reflect the introduced version of the bill and not the proposed amended version of the bill. 6)Argument in Support: According to the Association for Los Angeles Deputy Sheriffs, "AB 32 will take critical steps to establish stronger penalties for violating personal privacy?[the bill] would extend the timeframe for enforcing the penalty to one year from the discovery of the offense. "Current law does not provide a sufficient level of penalty to discourage individuals from committing these harmful crimes?Strengthening the punishment will decrease the likelihood that computer hackers will choose to commit these types of intrusive violations. Further, the measure will ensure that justice will be served by establishing that a criminal complaint may be filed up to a year from discovery. "The public deserves to feel safe and secure in this age of emerging technology. Computers, cellular phones and cloud technology will continue to evolve into more integral components of our lives. Any effort that can be undertaken to safeguard the private personal information that is stored on these mediums should be applauded." 7)Argument in Opposition: According to the California Attorneys for Criminal Justice, "Penal Code section 502 is already extremely broad. Anyone who '[k]knowingly accesses and without permission takes, copies, or makes use of any data from a computer system, or computer network, or takes or copies any supporting documentation whether existing or residing internal or external to a computer, computer system, AB 32 Page 19 or computer network' can be fined $10,000 and may be sentenced to prison for up to 2 years (Penal Code 502 subd. (c)(2) & (d)(1)." 8)Prior Legislation: a) AB 1649 (Waldron), Chapter 379, Statutes of 2014, specified the penalties for any person who disrupts or causes the disruption of, adds, alters, damages, destroys, provides or assists in providing a means of accessing, or introduces any computer contaminant into a "government computer system" or a "public safety infrastructure computer system," as specified, and changed and added the definition of specified terms. b) SB 255 (Canella), Chapter 466, Statutes of 2014 created a new misdemeanor for the distribution of a consensually taken image of an identifiable person in a state of full or partial undress when the image is distributed with the intent to cause serious emotional distress, and the person suffers such distress. REGISTERED SUPPORT / OPPOSITION: Support Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California College and University Police Chiefs California Communities United Institute Los Angeles Police Protective League Riverside Sheriffs Association Opposition California Attorneys for Criminal Justice AB 32 Page 20 California Public Defenders Association Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744