California Legislature—2015–16 Regular Session

Assembly BillNo. 195


Introduced by Assembly Member Chau

January 28, 2015


An act to amend Sections 502 and 653f of the Penal Code, relating to computer crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 195, as introduced, Chau. Unauthorized access to computer systems.

(1) Existing law establishes various crimes related to computer services and systems. Existing law makes it a crime to knowingly, and without permission, access, cause to be accessed, or provide or assist in providing a means of accessing, a computer, computer system, computer network, or computer data in violation of prescribed provisions, and defines related terms.

This bill would specify that “computer network” for these purposes includes smartphones, as defined, and would make a conforming change.

(2) Existing law makes it a crime for a person, with the intent that the crime be committed, to solicit another to commit or join in the commission of prescribed crimes.

This bill would expand these provisions to make it a crime for a person, with the intent that the crime be committed, to solicit another to commit or join in the commission of the access crimes related to computer services and systems. The bill would make it a crime to offer to obtain or procure assistance for another to obtain unauthorized access, or to assist others in locating hacking services, as defined. The bill would make a violation of this provision punishable by imprisonment in a county jail for a term not to exceed 6 months, or imprisonment for a term not to exceed one year for subsequent violations.

(3) By expanding the definitions of existing crimes, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

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

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 502 of the Penal Code is amended to
2read:

3

502.  

(a) It is the intent of the Legislature in enacting this
4section to expand the degree of protection afforded to individuals,
5businesses, and governmental agencies from tampering,
6interference, damage, and unauthorized access to lawfully created
7computer data and computer systems. The Legislature finds and
8declares that the proliferation of computer technology has resulted
9in a concomitant proliferation of computer crime and other forms
10of unauthorized access to computers, computer systems, and
11computer data.

12The Legislature further finds and declares that protection of the
13integrity of all types and forms of lawfully created computers,
14computer systems, and computer data is vital to the protection of
15the privacy of individuals as well as to the well-being of financial
16institutions, business concerns, governmental agencies, and others
17within this state that lawfully utilize those computers, computer
18systems, and data.

19(b) For the purposes of this section, the following terms have
20the following meanings:

21(1) “Access” means to gain entry to, instruct, cause input to,
22cause output from, cause data processing with, or communicate
23with, the logical, arithmetical, or memory function resources of a
24computer, computer system, or computer network.

25(2) “Computer network” means any system that provides
26communications between one or more computer systems and
P3    1input/output devices including, but not limited to, display terminals,
2remote systems, mobile devices,begin insert smartphones,end insert and printers
3connected by telecommunication facilities.

4(3) “Computer program or software” means a set of instructions
5or statements, and related data, that when executed in actual or
6modified form, cause a computer, computer system, or computer
7network to perform specified functions.

8(4) “Computer services” includes, but is not limited to, computer
9time, data processing, or storage functions, Internet services,
10electronic mail services, electronic message services, or other uses
11of a computer, computer system, or computer network.

12(5) “Computer system” means a device or collection of devices,
13including support devices and excluding calculators that are not
14programmable and capable of being used in conjunction with
15external files, one or more of which contain computer programs,
16electronic instructions, input data, and output data, that performs
17functions including, but not limited to, logic, arithmetic, data
18storage and retrieval, communication, and control.

19(6) “Government computer system” means any computer system,
20or part thereof, that is owned, operated, or used by any federal,
21state, or local governmental entity.

22(7) “Public safety infrastructure computer system” means any
23computer system, or part thereof, that is necessary for the health
24and safety of the public including computer systems owned,
25operated, or used by drinking water and wastewater treatment
26facilities, hospitals, emergency service providers,
27telecommunication companies, and gas and electric utility
28companies.

29(8) “Data” means a representation of information, knowledge,
30facts, concepts, computer software, computer programs or
31instructionsbegin insert, or smartphone applicationsend insert. Data may be in any form,
32in storage media, or as stored in the memory of the computer or
33in transit or presented on a display device.

34(9) “Supporting documentation” includes, but is not limited to,
35all information, in any form, pertaining to the design, construction,
36classification, implementation, use, or modification of a computer,
37computer system, computer network, computer program, or
38computer software, which information is not generally available
39to the public and is necessary for the operation of a computer,
P4    1computer system, computer network, computer program, or
2computer software.

3(10) “Injury” means any alteration, deletion, damage, or
4destruction of a computer system, computer network, computer
5program, or data caused by the access, or the denial of access to
6legitimate users of a computer system, network, or program.

7(11) “Victim expenditure” means any expenditure reasonably
8and necessarily incurred by the owner or lessee to verify that a
9computer system, computer network, computer program, or data
10was or was not altered, deleted, damaged, or destroyed by the
11access.

12(12) “Computer contaminant” means any set of computer
13instructions that are designed to modify, damage, destroy, record,
14or transmit information within a computer, computer system, or
15computer network without the intent or permission of the owner
16of the information. They include, but are not limited to, a group
17of computer instructions commonly called viruses or worms, that
18are self-replicating or self-propagating and are designed to
19contaminate other computer programs or computer data, consume
20computer resources, modify, destroy, record, or transmit data, or
21in some other fashion usurp the normal operation of the computer,
22computer system, or computer network.

23(13) “Internet domain name” means a globally unique,
24hierarchical reference to an Internet host or service, assigned
25through centralized Internet naming authorities, comprising a series
26of character strings separated by periods, with the rightmost
27character string specifying the top of the hierarchy.

28(14) “Electronic mail” means an electronic message or computer
29file that is transmitted between two or more telecommunications
30devices; computers; computer networks, regardless of whether the
31network is a local, regional, or global network; or electronic devices
32capable or receiving electronic messages, regardless of whether
33the message is converted to hard copy format after receipt, viewed
34upon transmission, or stored for later retrieval.

35(15) “Profile” means either of the following:

36(A) A configuration of user data required by a computer so that
37the user may access programs or services and have the desired
38functionality on that computer.

39(B) An Internet Web site user’s personal page or section of a
40page that is made up of data, in text of graphical form, that displays
P5    1significant, unique, or identifying information, including, but not
2limited to, listing acquaintances, interests, associations, activities,
3or personal statements.

begin insert

4(16) “Smartphone” means a cellular radio telephone or other
5mobile communications device that performs many of the functions
6of a computer, typically having a touchscreen interface, Internet
7access, and an operating system capable of running downloaded
8applications.

end insert

9(c) Except as provided in subdivision (h), any person who
10commits any of the following acts is guilty of a public offense:

11(1) Knowingly accesses and without permission alters, damages,
12deletes, destroys, or otherwise uses any data, computer, computer
13system, or computer network in order to either (A) devise or
14execute any scheme or artifice to defraud, deceive, or extort, or
15(B) wrongfully control or obtain money, property, or data.

16(2) Knowingly accesses and without permission takes, copies,
17or makes use of any data from a computer, computer system, or
18computer network, or takes or copies any supporting
19documentation, whether existing or residing internal or external
20to a computer, computer system, or computer network.

21(3) Knowingly and without permission uses or causes to be used
22computer services.

23(4) Knowingly accesses and without permission adds, alters,
24damages, deletes, or destroys any data, computer software, or
25computer programs which reside or exist internal or external to a
26computer, computer system, or computer network.

27(5) Knowingly and without permission disrupts or causes the
28disruption of computer services or denies or causes the denial of
29computer services to an authorized user of a computer, computer
30system, or computer network.

31(6) Knowingly and without permission provides or assists in
32providing a means of accessing a computer, computer system, or
33computer network in violation of this section.

34(7) Knowingly and without permission accesses or causes to be
35accessed any computer, computer system, or computer network.

36(8) Knowingly introduces any computer contaminant into any
37computer, computer system, or computer network.

38(9) Knowingly and without permission uses the Internet domain
39name or profile of another individual, corporation, or entity in
40connection with the sending of one or more electronic mail
P6    1messages or posts and thereby damages or causes damage to a
2computer, computer data, computer system, or computer network.

3(10) Knowingly and without permission disrupts or causes the
4disruption of government computer services or denies or causes
5the denial of government computer services to an authorized user
6of a government computer, computer system, or computer network.

7(11) Knowingly accesses and without permission adds, alters,
8damages, deletes, or destroys any data, computer software, or
9computer programs which reside or exist internal or external to a
10public safety infrastructure computer system computer, computer
11system, or computer network.

12(12) Knowingly and without permission disrupts or causes the
13disruption of public safety infrastructure computer system computer
14services or denies or causes the denial of computer services to an
15authorized user of a public safety infrastructure computer system
16computer, computer system, or computer network.

17(13) Knowingly and without permission provides or assists in
18providing a means of accessing a computer, computer system, or
19public safety infrastructure computer system computer, computer
20system, or computer network in violation of this section.

21(14) Knowingly introduces any computer contaminant into any
22public safety infrastructure computer system computer, computer
23system, or computer network.

24(d) (1) Any person who violates any of the provisions of
25paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is
26punishable by a fine not exceeding ten thousand dollars ($10,000),
27or by imprisonment pursuant to subdivision (h) of Section 1170
28for 16 months, or two or three years, or by both that fine and
29imprisonment, or by a fine not exceeding five thousand dollars
30($5,000), or by imprisonment in a county jail not exceeding one
31year, or by both that fine and imprisonment.

32(2) Any person who violates paragraph (3) of subdivision (c)
33is punishable as follows:

34(A) For the first violation that does not result in injury, and
35where the value of the computer services used does not exceed
36nine hundred fifty dollars ($950), by a fine not exceeding five
37thousand dollars ($5,000), or by imprisonment in a county jail not
38exceeding one year, or by both that fine and imprisonment.

39(B) For any violation that results in a victim expenditure in an
40amount greater than five thousand dollars ($5,000) or in an injury,
P7    1or if the value of the computer services used exceeds nine hundred
2fifty dollars ($950), or for any second or subsequent violation, by
3a fine not exceeding ten thousand dollars ($10,000), or by
4imprisonment pursuant to subdivision (h) of Section 1170 for 16
5months, or two or three years, or by both that fine and
6imprisonment, or by a fine not exceeding five thousand dollars
7($5,000), or by imprisonment in a county jail not exceeding one
8year, or by both that fine and imprisonment.

9(3) Any person who violates paragraph (6), (7), or (13) of
10subdivision (c) is punishable as follows:

11(A) For a first violation that does not result in injury, an
12infraction punishable by a fine not exceeding one thousand dollars
13($1,000).

14(B) For any violation that results in a victim expenditure in an
15amount not greater than five thousand dollars ($5,000), or for a
16second or subsequent violation, by a fine not exceeding five
17thousand dollars ($5,000), or by imprisonment in a county jail not
18exceeding one year, or by both that fine and imprisonment.

19(C) For any violation that results in a victim expenditure in an
20amount greater than five thousand dollars ($5,000), by a fine not
21exceeding ten thousand dollars ($10,000), or by imprisonment
22pursuant to subdivision (h) of Section 1170 for 16 months, or two
23or three years, or by both that fine and imprisonment, or by a fine
24not exceeding five thousand dollars ($5,000), or by imprisonment
25in a county jail not exceeding one year, or by both that fine and
26imprisonment.

27(4) Any person who violates paragraph (8) or (14) of subdivision
28(c) is punishable as follows:

29(A) For a first violation that does not result in injury, a
30misdemeanor punishable by a fine not exceeding five thousand
31dollars ($5,000), or by imprisonment in a county jail not exceeding
32one year, or by both that fine and imprisonment.

33(B) For any violation that results in injury, or for a second or
34subsequent violation, by a fine not exceeding ten thousand dollars
35($10,000), or by imprisonment in a county jail not exceeding one
36year, or by imprisonment pursuant to subdivision (h) of Section
371170, or by both that fine and imprisonment.

38(5) Any person who violates paragraph (9) of subdivision (c)
39is punishable as follows:

P8    1(A) For a first violation that does not result in injury, an
2infraction punishable by a fine not exceeding one thousand dollars
3($1,000).

4(B) For any violation that results in injury, or for a second or
5subsequent violation, by a fine not exceeding five thousand dollars
6($5,000), or by imprisonment in a county jail not exceeding one
7year, or by both that fine and imprisonment.

8(e) (1) In addition to any other civil remedy available, the owner
9or lessee of the computer, computer system, computer network,
10computer program, or data who suffers damage or loss by reason
11of a violation of any of the provisions of subdivision (c) may bring
12a civil action against the violator for compensatory damages and
13injunctive relief or other equitable relief. Compensatory damages
14shall include any expenditure reasonably and necessarily incurred
15by the owner or lessee to verify that a computer system, computer
16network, computer program, or data was or was not altered,
17damaged, or deleted by the access. For the purposes of actions
18authorized by this subdivision, the conduct of an unemancipated
19minor shall be imputed to the parent or legal guardian having
20control or custody of the minor, pursuant to the provisions of
21Section 1714.1 of the Civil Code.

22(2) In any action brought pursuant to this subdivision the court
23may award reasonable attorney’s fees.

24(3) A community college, state university, or academic
25institution accredited in this state is required to include
26computer-related crimes as a specific violation of college or
27university student conduct policies and regulations that may subject
28a student to disciplinary sanctions up to and including dismissal
29from the academic institution. This paragraph shall not apply to
30the University of California unless the Board of Regents adopts a
31resolution to that effect.

32(4) In any action brought pursuant to this subdivision for a
33willful violation of the provisions of subdivision (c), where it is
34proved by clear and convincing evidence that a defendant has been
35guilty of oppression, fraud, or malice as defined in subdivision (c)
36of Section 3294 of the Civil Code, the court may additionally award
37punitive or exemplary damages.

38(5) No action may be brought pursuant to this subdivision unless
39it is initiated within three years of the date of the act complained
40of, or the date of the discovery of the damage, whichever is later.

P9    1(f) This section shall not be construed to preclude the
2applicability of any other provision of the criminal law of this state
3which applies or may apply to any transaction, nor shall it make
4illegal any employee labor relations activities that are within the
5scope and protection of state or federal labor laws.

6(g) Any computer, computer system, computer network, or any
7software or data, owned by the defendant, that is used during the
8commission of any public offense described in subdivision (c) or
9any computer, owned by the defendant, which is used as a
10repository for the storage of software or data illegally obtained in
11violation of subdivision (c) shall be subject to forfeiture, as
12specified in Section 502.01.

13(h) (1) Subdivision (c) does not apply to punish any acts which
14are committed by a person within the scope of his or her lawful
15 employment. For purposes of this section, a person acts within the
16scope of his or her employment when he or she performs acts
17which are reasonably necessary to the performance of his or her
18work assignment.

19(2) Paragraph (3) of subdivision (c) does not apply to penalize
20any acts committed by a person acting outside of his or her lawful
21employment, provided that the employee’s activities do not cause
22an injury, to the employer or another, or provided that the value
23of supplies or computer services which are used does not exceed
24an accumulated total of two hundred fifty dollars ($250).

25(i) No activity exempted from prosecution under paragraph (2)
26of subdivision (h) which incidentally violates paragraph (2), (4),
27or (7) of subdivision (c) shall be prosecuted under those paragraphs.

28(j) For purposes of bringing a civil or a criminal action under
29this section, a person who causes, by any means, the access of a
30computer, computer system, or computer network in one
31jurisdiction from another jurisdiction is deemed to have personally
32accessed the computer, computer system, or computer network in
33each jurisdiction.

34(k) In determining the terms and conditions applicable to a
35person convicted of a violation of this section the court shall
36consider the following:

37(1) The court shall consider prohibitions on access to and use
38of computers.

39(2) Except as otherwise required by law, the court shall consider
40alternate sentencing, including community service, if the defendant
P10   1shows remorse and recognition of the wrongdoing, and an
2inclination not to repeat the offense.

3

SEC. 2.  

Section 653f of the Penal Code is amended to read:

4

653f.  

(a) Every person who, with the intent that the crime be
5committed, solicits another to offer, accept, or join in the offer or
6acceptance of a bribe, or to commit or join in the commission of
7carjacking, robbery, burglary, grand theft, receiving stolen property,
8extortion, perjury, subornation of perjury, forgery, kidnapping,
9arson or assault with a deadly weapon or instrument or by means
10of force likely to produce great bodily injury, or, by the use of
11force or a threat of force, to prevent or dissuade any person who
12is or may become a witness from attending upon, or testifying at,
13any trial, proceeding, or inquiry authorized by law, shall be
14punished by imprisonment in a county jail for not more than one
15year or pursuant to subdivision (h) of Section 1170, or by a fine
16of not more than ten thousand dollars ($10,000), or the amount
17which could have been assessed for commission of the offense
18itself, whichever is greater, or by both the fine and imprisonment.

19(b) Every person who, with the intent that the crime be
20committed, solicits another to commit or join in the commission
21of murder shall be punished by imprisonment in the state prison
22for three, six, or nine years.

23(c) Every person who, with the intent that the crime be
24committed, solicits another to commit rape by force or violence,
25sodomy by force or violence, oral copulation by force or violence,
26or any violation of Section 264.1, 288, or 289, shall be punished
27by imprisonment in the state prison for two, three, or four years.

28(d) (1) Every person who, with the intent that the crime be
29committed, solicits another to commit an offense specified in
30Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health
31and Safety Code shall be punished by imprisonment in a county
32jail not exceeding six months. Every person, who, having been
33convicted of soliciting another to commit an offense specified in
34this subdivision, is subsequently convicted of the proscribed
35solicitation, shall be punished by imprisonment in a county jail
36not exceeding one year, or pursuant to subdivision (h) of Section
371170.

38(2) This subdivision does not apply where the term of
39imprisonment imposed under other provisions of law would result
40in a longer term of imprisonment.

P11   1(e) Every person who, with the intent that the crime be
2committed, solicits another to commit an offense specified in
3Section 14014 of the Welfare and Institutions Code shall be
4punished by imprisonment in a county jail for not exceeding six
5months. Every person who, having been convicted of soliciting
6another to commit an offense specified in this subdivision, is
7subsequently convicted of the proscribed solicitation, shall be
8punished by imprisonment in a county jail not exceeding one year,
9or pursuant to subdivision (h) of Section 1170.

begin insert

10(f) (1) Every person who, with the intent that the crime be
11committed, solicits another to commit an offense set forth in Section
12502 shall be punished as set forth in paragraph (3).

end insert
begin insert

13(2) Every person who, with the intent that the crime be
14committed, offers to solicit assistance for another to conduct
15activities in violation of Section 502 shall be punished as set forth
16in paragraph (3). This includes persons operating Internet Web
17sites that offer to assist others in locating hacking services. For
18 the purposes of this section “hacking services” means assistance
19in the unauthorized access to computers, computer systems, or
20computer data in violation of Section 502.

end insert
begin insert

21(3) Every person who violates this subdivision shall be punished
22by imprisonment in a county jail for a period not to exceed six
23months. Every subsequent violation of this subdivision by that
24same person shall be punished by imprisonment in a county jail
25not exceeding one year, or pursuant to subdivision (h) of Section
261170.

end insert
begin delete

27(f)

end delete

28begin insert(g)end insert An offense charged in violation of subdivision (a), (b), or
29(c) shall be proven by the testimony of two witnesses, or of one
30witness and corroborating circumstances. An offense charged in
31violation of subdivisionbegin delete (d) or (e)end deletebegin insert (d), (e), or (f)end insert shall be proven
32by the testimony of one witness and corroborating circumstances.

33

SEC. 3.  

No reimbursement is required by this act pursuant to
34Section 6 of Article XIII B of the California Constitution because
35the only costs that may be incurred by a local agency or school
36district will be incurred because this act creates a new crime or
37infraction, eliminates a crime or infraction, or changes the penalty
38for a crime or infraction, within the meaning of Section 17556 of
39the Government Code, or changes the definition of a crime within
P12   1the meaning of Section 6 of Article XIII B of the California
2Constitution.



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