BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 32 Hearing Date: July 7, 2015
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|Author: |Waldron |
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|Version: |April 7, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Computer Crimes
HISTORY
Source: Author
Prior Legislation:SB 1255 (Cannella) - Ch. 863, Stats. 2014
AB 1649 (Waldron) - Ch. 379, Statutes of 2014
SB 255 (Canella) - Ch. 466, Statutes of 2013
Support: Association of Deputy District Attorneys; Association
for Los Angeles Deputy Sheriffs; California College
and University Police Chiefs; California Communities
United Institute; California District Attorneys
Association; California Police Chiefs Association; Los
Angeles Police Protective League; Riverside Sheriffs
Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to: 1) raise the maximum misdemeanor
fines for computer access, use and damage crimes from $5,000 to
AB 32 (Waldron ) PageB
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$10,000; and 2) provide that the statute of limitations for any
computer access, use or damage crime runs from the date of
discovery if it is alleged that the defendant acquired, copied
or distributed an image of sexual or intimate nature.
Existing law:
Defines numerous computer or electronic data offenses and
imposes a wide range of penalties based on the seriousness of
the offense or extent of harm caused by the defendant, including
by a fine not exceeding $10,000, by felony imprisonment pursuant
to Penal Code Section 1170, subdivision (h) for a term of term
of 16 months, two years or three years, or both, or by a fine
not exceeding $5,000, or by imprisonment in a county jail not
exceeding one year. These penalties apply where any person
knowingly:
Accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer,
computer system, or computer network in order to devise or
execute any scheme or artifice to defraud, deceive, or
extort, or wrongfully control or obtain money, property or
data.
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.
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
Without permission, disrupts or causes the disruption of
computer services or denies or causes the denial of
computer services, or denies or causes the denial of
computer services to an authorized user of a computer,
computer system, or computer network.
Disrupts or improperly accesses a government or public
safety computer system. (Pen. Code § 502, subds. (c) 1),
(2), (4), (5), (10), (11), or (12); and (d)(1).)
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Provides that any person who knowingly and without permission
uses or causes to be used computer services shall be punished as
follows:
For the first violation that does not result in injury,
and where the value of the computer services used does not
exceed $950, by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment; and
For any violation that results in a victim expenditure
in an amount more than $5,000 or in an injury, if the value
of the computer services used exceeds $950, or for any
second or subsequent violation, by a fine not exceeding
$10,000, by imprisonment pursuant to realignment for 16
months, or two or three years, or by both that fine and
imprisonment, or by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment. (Pen. Code § 502, subds.
(c)(3); and (d)(2).)
Punishes any person who knowingly and without permission
provides or assists in providing a means of accessing, accesses,
or causes to be accessed a computer, computer system, or
computer network as follows:
A first violation that does not result in injury is an
infraction punishable by a fine not exceeding $1,000.
Any violation that results in a victim expenditure in an
amount not more than $5,000, or for a second or subsequent
violation, is a misdemeanor, punishable by a fine not
exceeding $5,000, by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment;
and
Any violation that results in a victim expenditure above
$5,000 is punishable by a fine not exceeding ten thousand
dollars $10,000, by felony imprisonment pursuant to Penal
Code Section 1170, subdivision (h), for 16 months, two or
three years, or both, or by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment. (Pen. Code § 502, subds.
(c) and (d)(3).)
Punishes any person who knowingly introduces any computer
contaminant into any computer, or computer system, or computer
AB 32 (Waldron ) PageD
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network as follows:
A first violation that does not result in injury is a
misdemeanor punishable by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment; and
A violation that results in injury, or a subsequent
violation, is punishable by a fine not exceeding $10,000,
by imprisonment in a county jail not exceeding one year, or
by imprisonment pursuant Penal Code Section 1170,
subdivision (h), or both that fine and imprisonment. (Pen.
Code § 502 subds. (c)(14) and (d)(4).)
Punishes any person who knowingly and without permission uses
the Internet domain name of another individual, corporation, or
entity in connection with the sending of one or more electronic
mail messages, and thereby damages or causes damage to a
computer, computer system, or computer network as follows:
For a first violation that does not result in injury, an
infraction punishable by a fine not more than $1,000; and
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, subds. (c)(9) and
(d)(5).)
Requires that prosecution for a felony - an offense punishable
by imprisonment in the state prison or county jail pursuant to
Penal Code Section 1170, subdivision (h) - be commenced within
three years after commission of the offense, except as
specified. (Penal Code, § 801.)
Requires that prosecution for an offense punishable by
imprisonment in the state prison or county jail pursuant to
realignment be commenced within three years after commission of
the offense, except as specified. (Penal Code, § 801.)
States that, unless specified, prosecution for an offense not
punishable by death or imprisonment in state prison shall be
commenced within one year after commission of the offense.
(Penal Code § 802.)
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Provides that the statute of limitations for identity theft
(Pen. Code § 530.5) or procuring or offering false instruments
to be filed in a public officer (Pen. Code § 115) does not
commence to run until the discovery of the offense. (Pen. Code
§ 803.5.)
Provides that unless provided, as specified, a limitation of
time is not tolled or extended for any reason. (Penal Code §
803, subd. (a).)
Provides that if more than statute of limitations period applies
to a crime, the time for commencing an action shall be governed
by the period that expires later in time. (Penal Code § 803.6,
subd. (a).)
This bill:
Increases the maximum fines from $5,000 to $10,000 in the
misdemeanor crimes described above in "Existing law" involving
computer and computer system access, use, disruption, damage or
alteration, unless the current misdemeanor fine is $10,000.
Provides where it is alleged that in the commission of a
computer access, use, damage or alteration crime (Pen. Code §
502), the defendant acquired, copied, or distributed at least
one digital image that displays a person's intimate body part,
the statute of limitations does not begin
to run until the discovery of the crime involving access, use,
disruption, damage or alteration to or of a computer or computer
system.
Provides the following definitions for the purpose of this
special statute tolling the statute of limitations until the
crime is discovered
"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; and
"Digital images of a person" do not include
representational images, artwork, or cartoon drawings.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
AB 32 (Waldron ) PageG
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or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Recent media has highlighted the increasing number of
computer crimes that involve stealing intimate photos
and also publishing them on the internet which
emphasizes the public's vulnerability to this kind of
exploitation. Conventional computer hacking penalties
do not sufficiently capture the emotional trauma that
crimes including acquiring, copying, or distributing
unauthorized intimate images can cause. AB 32 will
make such crimes punishable by a fine of up to $10,000
per image. The bill will establish that a person who
commits such offense will not be able to evade
prosecution by delaying release of the stolen images.
AB 32 will also allow for a criminal prosecution
within one year of when the crime was discovered. 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.Penalty Assessments Effectively Quadruple any Criminal Fine
With very limited exceptions, all criminal fines are subject to
"penalty assessments" that effectively quadruple the amount the
defendant must actually pay. Simply put, if a criminal statute
provides that the fine for the offense is $100, the defendant
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will pay more than $400. The court cannot relieve a defendant
of the obligation to pay penalty assessments. Further, a
defendant in every criminal case must pay a restitution fine
that is deposited into the Restitution Fund that is used to
reimburse victims of violent crime for specified expenses. The
restitution fine for a misdemeanor is from $150 to $1,000. The
fine for a felony is $300 to $10,000. The court cannot relieve
a defendant of the obligation to pay a restitution fine.
The following chart breaks down the distribution of a Base Fine
(the Fine stated in the Statute) and Penalty Assessments
-------------------------------------------------------
|Base Fine: |$10,000.|
| | 00|
| | |
| | |
|----------------------------------------------+--------|
| | |
| | |
| | |
|----------------------------------------------+--------|
|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): | |
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| | |
| | |
|----------------------------------------------+--------|
|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|
| | |
| | |
|----------------------------------------------+--------|
| | |
| | |
| | |
|----------------------------------------------+--------|
|Fine with Assessments: | |
| |$41,070.00 |
| | |
| | |
| | |
-------------------------------------------------------
Other fees and costs apply, including reimbursement to the
county for court-appointed counsel. Large criminal fines may be
difficult to collect, as collection could take years of effort
and expense. The estimated amount of uncollected court ordered
debt in 2011 was $10.2 billion.<1>
---------------------------
<1>
http://www.lao.ca.gov/reports/2014/criminal-justice/debt-collecti
on/court-ordered-debt-collection-111014.pdf
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3.Confusing Fine Structure in This Bill and Existing Law
The purpose of this bill is to increase the maximum misdemeanor
fines for unauthorized use or alteration of, or unauthorized
access or damage to a computer or computer services from $5,000
to $10,000. The existing fine structure is unusual and
confusing. The following is a representative example:
(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 ten 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, subd. (d)(3)(C).)
This appears to describe an alternate felony-misdemeanor
(wobbler) in two ways: 1) by including two separate maximum
fines ($10,000 or $5,000) as stand-alone penalties, and 2)
providing that the court can sentence the defendant to a felony
sentence pursuant to Penal Code 1170, subdivision (h) or impose
a misdemeanor jail term of up to a year.
Penal Code Section 17, subdivision (b). defines an alternate
felony-misdemeanor, or wobbler. In relevant part, Section 17
provides:
(b) When a crime is punishable, in the discretion of
the court, either by imprisonment in the state prison
or imprisonment in a county jail under the provisions
of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor
for all purposes under the following circumstances:
(1) After a judgment imposing a punishment other than
imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of
Section 1170.
Applying Penal Code Section 17, subdivision (b), to the computer
crimes covered by this bill, the sentencing court could impose a
AB 32 (Waldron ) PageK
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fine of up to $10,000, with no felony jail or prison term and
the offense would, by definition, be a misdemeanor. The court
could impose a felony jail or prison sentence and no fine, and
the offense would be a felony. The court could impose a felony
jail or prison term and a fine of up to $10,000 and the offense
would be a felony. Simply stating that a crime is a felony
punishable pursuant to Section 1170, subdivision (h), means that
the defendant is subject to a sentence of16 months, two years or
three years and a fine of up to $10,000. There is thus no need
to specify that the maximum felony fine for a violation of
Section 502 is $10,000.
It is most likely that an appellate court would find that the
maximum fine for a misdemeanor under existing law $5,000, as the
misdemeanor jail term is described in conjunction with a fine of
up to $5,000. However, it can also be argued that the court
could impose a fine of up to $10,000 and a misdemeanor jail
term. As noted above, if a crime is punishable by a fine alone,
it is a wobbler. If the court punishes the defendant by a
county jail term, but not pursuant to Section 1170, subdivision
(h), the offense is a misdemeanor. If the court can impose a
fine of up to $10,000 and county jail term, the bill is not
necessary. If the court cannot impose a fine of up to $10,000
and a misdemeanor jail term under existing law, the author's
intent can be realized by simply striking the reference in the
existing statutes to a $5,000 fine. That would provide that the
maximum fine for either a misdemeanor or a felony is $10,000.
Committee staff has found no appellate cases discussing the fine
structure in Penal Code Section 502. In any event, the penalty
provisions in Penal Code Section 502 is confusing and should be
clarified.
4.The Statute of Limitations Generally; Law Revision Commission
Report
The statute of limitations requires commencement of a
prosecution within a certain period of time after the commission
of a crime. A prosecution is initiated by filing an indictment
or information, filing a complaint, certifying a case to
superior court, or issuing an arrest or bench warrant. (Pen.
Code § 804.) The failure of a prosecution to be commenced
within the applicable period of limitation is a complete defense
to the charge. The statute of limitations is jurisdictional and
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may be raised as a defense at any time, before or after
judgment. People v. Morris (1988) 46 Cal.3d 1, 13. The defense
may only be waived under limited circumstances. (See Cowan v.
Superior Court (1996) 14 Cal.4th 367.)
The Legislature enacted the current statutory scheme regarding
statutes of limitations for crimes in 1984 in response to a
report of the California Law Revision Commission:
The Commission identified various factors to be
considered in drafting a limitations statute. These
factors include: (a) The staleness factor. A person
accused of crime should be protected from having to face
charges based on possibly unreliable evidence and from
losing access to the evidentiary means to defend. (b)
The repose factor. This reflects society's lack of a
desire to prosecute for crimes committed in the distant
past. (c) The motivation factor. This aspect of the
statute imposes a priority among crimes for
investigation and prosecution. (d) The seriousness
factor. The statute of limitations is a grant of
amnesty to a defendant; the more serious the crime, the
less willing society is to grant that amnesty. (e) The
concealment factor. Detection of certain concealed
crimes may be quite difficult and may require long
investigations to identify and prosecute the
perpetrators.
The Commission concluded that a felony limitations
statute generally should be based on the seriousness of
the crime. Seriousness is easily determined based on
classification of a crime as felony or misdemeanor and
the punishment specified, and a scheme based on
seriousness generally will accommodate the other factors
as well. Also, the simplicity of a limitations period
based on seriousness provides predictability and
promotes uniformity of treatment.<2>
5.The Statute of Limitations Exception in this Bill
This bill extends the statute of limitation in prosecutions
under Penal Code Section 502, subdivision (c). That subdivision
---------------------------
<2> 1 Witkin Cal. Crim. Law Defenses, Section 214 (3rd Ed.
2004), citing 17 Cal. Law Rev. Com. Reports, pp.308-314.
AB 32 (Waldron ) PageM
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is very broad. It includes many separate crimes for accessing,
harming or using a computer, computer system or data in the
computer or computer system. Specifically, the bill extends the
statute of limitations if it is alleged that the defendant, in
committing one of these crimes, "acquired, copied or
distributed" a digital image in which a an intimate - sexual -
body part is displayed.
The bill does not require that the intimate image itself be
illegal or that it be used in the commission of a crime. There
is no requirement that the image be of an identifiable person.
It can be argued that the image need not include a person's
face. The image could be in the public domain or previously and
intentionally distributed by the person depicted. It also
appears that the defendant need not even know that he or she
"acquired, copied or distributed" an image of an intimate body
part.
Further, it is not clear when or why a prosecutor would allege
that a person "acquired, copied or distributed" an intimate or
sexual image in the commission of a computer or compute system
offense. Generally, prosecutor's charge a crime and allege
facts that support an enhancements or a sentencing limit or
requirement. Acquiring, copying or distributing a sexual image
is not an element of, or inherent in, any of the crimes in
subdivision (c) of Section 502, although that conduct might be
an element or inherently part of another crime, such as cyber
porn revenge, or surreptitious filming of a person in a place
where the person has a reasonable expectation of privacy.
The bill thus extends the statute of limitations for a crime
because of a fact that is not directly related to the crime.
The bill could extend the statute of limitations for one
defendant, but not for another charged with the same crime,
based on factors that could be essentially random or accidental,
or extraneous to the offense. There are statutes of limitations
that are based on factors that are not elements of the crime or
inherent in the crime. However, those factors generally concern
the fact that the victim was a minor at the time a sex crime
occurred. While it appears that the statute is extended for
crimes that do not include an element that the victim was a
minor, sexual conduct with a minor is criminal and the age of
the victim would typically be an element of a crime that is
included in a greater offense, such as forced oral copulation.
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Arguably, tolling of the statute of limitations for a computer
crime based on the fact that the defendant "acquired, copied or
distributed" an intimate digital image should also include a
requirement that the acquisition, copying or distribution of the
images constitutes criminal conduct, or at least an element of a
crime.
6.Tolling the Statute of Limitation in Cases of Identity Theft -
Application to Computer Hacking to Obtain Intimate Images of
Another Person
It appears that many instances of the use of another person's
image - especially where the image was stolen from the depicted
person's computer - would constitute identity theft. Identity
theft is a very broadly defined offense. It is essentially the
unauthorized use of another person's identifying information for
any unlawful purpose. Identifying information is defined very
broadly as well, including name, address, place of employment,
biometric data, mother's maiden name and many others. It
appears that the unlawful purpose need not be a crime itself.
The statute of limitations for identity theft does not begin to
run until the crime has been discovered. In many situations
where it appears that the author intends the statute of
limitations in the bill to apply, the tolling provisions
applicable to identity theft would apply.
The most infamous purveyor of non-consensual personal sexual
images on the Internet is Hunter Moore. Moore ran a website on
which he and others posted nude photos that were often described
as "revenge porn," because posters were often men eager to
humiliate former partners. Moore went far beyond simply posting
images provided to him by others. He employed a man named
Charles Evens to hack into e-mail accounts to obtain the images.
Moore and Evens recently pleaded guilty in federal court to
computer hacking crimes and identity theft.<3>
In addition to hacking issues, using the images of actors and
---------------------------
<3>
http://www.nytimes.com/aponline/2015/02/18/us/ap-us-revenge-porn.
html
AB 32 (Waldron ) PageO
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other celebrities can constitute a violation of a celebrity's
copyright or publicity rights. Under California law an actor,
singer or other celebrity generally has a right to control and
gain from the commercial value of his or her image, voice and
other characteristics. (Cal. Civ. Code § 3344.1.) Unauthorized
use of a celebrity's image could perhaps be the basis of an
identity theft prosecution.
7.Prior Legislation
AB 1649 (Waldron) - Ch. 379, Stats. 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.
SB 255 (Canella) - Ch. 466, Stats. of 2013 and SB 1255
(Cannella) - Ch. 863, Stats. of 2014 created and expanded a new
misdemeanor for the distribution of a sexual or intimate image
of an identifiable person where the distributor and the person
depicted have agreed the images shall remain private. The
offense includes the elements of serious emotional distress to
the depicted person, which the distributor knew or should have
known would have occurred.
-- END -