BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 32| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 32 Author: Waldron (R), et al. Amended: 7/15/15 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 6-0, 7/7/15 AYES: Hancock, Glazer, Leno, Liu, Monning, Stone NO VOTE RECORDED: Anderson ASSEMBLY FLOOR: 78-0, 4/9/15 - See last page for vote SUBJECT: Computer crimes SOURCE: Author DIGEST: This bill clarifies the penalty provisions for the alternate felony-misdemeanor of improperly accessing and disrupting, denying service from or taking data from a computer system. ANALYSIS: Existing law: 1)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 AB 32 Page 2 apply where any person knowingly: a) 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. b) 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. c) 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 d) 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. e) 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).) 2)Provides that any person who knowingly and without permission uses or causes to be used computer services shall be punished 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 $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 b) 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 AB 32 Page 3 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).) 3)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) A first violation that does not result in injury is an infraction punishable by a fine not exceeding $1,000. b) 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 c) 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).) 4)Punishes any person who knowingly introduces any computer contaminant into any computer, or computer system, or computer network as follows: a) 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 b) 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).) 5)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 AB 32 Page 4 electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network as follows: a) For a first violation that does not result in injury, an infraction punishable by a fine not more than $1,000; and 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, subds. (c)(9) and (d)(5).) This bill defines specified computer and data access and harm crimes as standard alternate-felony misdemeanors, with a maximum misdemeanor fine of $5,000. Specifically, the bill provides that these offenses are punishable as a felony for a term of 16 months, two years or three years and a fine of up to $10,000; and punishable as a misdemeanor by a jail term of up to one year, a fine of up to $5,000, or both a jail term and the fine. Background The existing fine structure for crimes involving unauthorized access and harm to computers and data 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. AB 32 Page 5 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 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 Senate Public Safety Committee staff has found no appellate cases discussing the fine structure in Penal Code Section 502. AB 32 Page 6 This bill clarifies the confusing the penalty provisions in Penal Code Section 502, subdivision (d). The bill, however, does not address similar or equivalent penalty provisions in other subdivisions of Penal Code Section 502. The application of these provisions by the courts will allow the Legislature to compare both penalty provision forms in practice. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified 8/18/15) 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: (Verified 8/18/15) None received ASSEMBLY FLOOR: 78-0, 4/9/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Calderon, O'Donnell AB 32 Page 7 Prepared by:Jerome McGuire / PUB. 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