BILL ANALYSIS Ó AB 195 Page 1 Date of Hearing: March 17, 2015 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 195 (Chau) - As Introduced January 28, 2015 SUMMARY: Makes it a misdemeanor, punishable by up to six months, for any person to solicit another to join in the commission of specified crimes relating to unauthorized access of computer systems, and expands the definition of a "computer network" to include smartphones. Specifically, this bill: 1)Expands the definition of "computer network" to include smartphones and defines "smartphone" as a cellular radio telephone or other mobile communications device that performs many of the functions of a computer, typically having a touchscreen interface, internet access, and an operating system capable of running downloaded applications. 2)Provides that every person who, with the intent that the crime be committed, solicits another to commit one of a number of specified computer crimes shall be punished by imprisonment in a county jail for a period not to exceed six months. Every subsequent violation of this subdivision by that same person shall be punished by imprisonment in a county jail not exceeding one year. 3)Provides that every person who, with the intent that the crime AB 195 Page 2 be committed, offers to solicit assistance for another to conduct activities in violation of a number of specified computer crimes shall be punished by imprisonment in a county jail for a period not to exceed six months. Every subsequent violation of this subdivision by that same person shall be punished by imprisonment in a county jail not exceeding one year: a) Specifies that this includes persons operating websites that offer to assist others in locating hacking services; b) Defines "hacking services" as assistance in the unauthorized access to computers, computer systems, or computer data in violation of specified computer crimes; and c) Specifies that this offense shall be proven by the testimony of one witness and corroborating circumstances. EXISTING LAW: 1)Provides general punishments for solicitation of another to commit crimes as follows: (Pen. Code § 653f.) a) For every person who, with the intent that the crime be committed, solicits another to offer, accept, or join in the offer or acceptance of a bribe, or to commit or join in the commission of carjacking, robbery, burglary, grand theft, receiving stolen property, extortion, perjury, subornation of perjury, forgery, kidnapping, arson or assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury, or, by the use of force or a threat of force, to prevent or dissuade any person who is or may become a witness from attending upon, or testifying at, any trial, proceeding, or inquiry authorized by law, shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment. AB 195 Page 3 b) Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years. c) Every person who, with the intent that the crime be committed, solicits another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or other specified sex crime, shall be punished by imprisonment in the state prison for two, three, or four years. d) Every person who, with the intent that the crime be committed, solicits another to commit a specified drug sales offense shall be punished by imprisonment in a county jail not exceeding six months. Subsequent convictions shall be punished by imprisonment in a county jail not exceeding one year. 2)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, subd. (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, subd., (c)(1).) 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, subd. (c)(2).) AB 195 Page 4 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, subd. (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, subd. (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, subd. (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, subd. (c)(11).) 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 AB 195 Page 5 public safety infrastructure computer system computer, computer system, or computer network. (Pen. Code, § 502 subd., (c)(12).) 1)Punishes any person who knowingly and without permission uses or causes to be used computer services as follows: (Pen Code, § 502, subd. (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, subd. (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, subd. (d)(2).) 2)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, subd. (c)(6).) AB 195 Page 6 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, subd. (d)(3).) 3)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, subd. (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 AB 195 Page 7 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 subd. (d)(3).) 4)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, subd. (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. AB 195 Page 8 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, subd. (d)(3).) 5)Punishes any person who knowingly introduces any computer contaminant into any computer, computer system, or computer network as follows: (Pen. Code, § 502, subd. (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, subd. (d)(4).) 6)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, subd. (c)(14).) AB 195 Page 9 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, subd. (d)(4).) 7)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, subd. (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, subd. (d)(5).) AB 195 Page 10 8)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, subd. (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, subd. (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, subd. (b)(3).) 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, subd. (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 AB 195 Page 11 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, subd. (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, subd. (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, subd. (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 as stored in the memory of the computer or in transit or presented on a display device. (Pen. Code, § 502, subd. (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, AB 195 Page 12 computer network, computer program, or computer software. (Pen. Code, § 502, subd. (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, subd. (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, subd. (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 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, subd. (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 AB 195 Page 13 periods, with the rightmost character string specifying the top of the hierarchy. (Pen. Code, § 502, subd. (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, subd. (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. 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, subd. (b)(15).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Today, we live in a digitally connected world where more of our devices are equipped with sensors and connected to the internet. This AB 195 Page 14 includes our phones, cars and household appliances; all of which perform functions that where once exclusive to our computers. "This new form of digital access has also spawned a new type of criminal, one who can invade our homes and offices not by breaking down doors and windows, but by breaking into our computer networks from the convenience and safety of their own homes. These cybercrimes range from breaking into someone's computer network to steal financial information to other crimes such as corporate espionage, fraud, and extortion. "Under current law, it is a crime to solicit another to commit certain crimes, such as bribery, kidnapping, and robbery, among others. In addition, it is a crime for someone to knowingly hack into another's computer network without permission. However, it is not a crime to solicit someone to knowingly and without permission hack into a computer network or smartphone. "Cybercrimes have greater and longer lasting effects on victims, because the personal information stolen can result in identify theft, fraud, and personal embarrassment, all of which could take years to recover from, if ever. In fact, according to the FBI's Internet Crime Complaint Center, in 2013, it received over 200,000 consumer complaints about online scams, which resulted in a loss of over 781 million dollars; an almost 50% increase from the year before. "In recent years, we have seen the growth of so called Hacker-for-Hire websites where individuals solicit hackers to perform certain projects. These websites work in different ways. Some work by requiring the person to submit a description of the hacking job along with contact information. The website then sets up a time to connect the person with a hacker over the phone or video-conferencing to complete the process. Others websites work by creating a platform that allows customers to register and post projects on the website for different hackers to bid on. The websites then holds the money in an escrow account until both parties agree that the transaction has been completed. The website then takes a commission from each transaction and releases the money. AB 195 Page 15 "Hacker-for-Hire projects range from recovering lost passwords to tracking stolen devices. But some of these websites also provide a platform for individuals seeking illegal hacking services from less than ethical hackers, such as installing spyware on devices and gaining access to the email and social media accounts of unsuspecting victims. "AB 195 would make it a crime to solicit someone to knowingly and without permission gain access to a computer network or smartphone. This includes offering to obtain or assist in locating hacking services. The bill would also clarify that a computer network includes smartphones. This bill would make any violation punishable by imprisonment not to exceed six months. Any subsequent violation would be punishable by imprisonment not to exceed one year." 2)Solicitation: Solicitation is the crime of recruiting another person to commit a crime. Solicitation of specified offenses is illegal in and of itself. The crime of solicitation is defined under Pen. Code § 653f. The offenses for which a defendant can be charged for solicitation include: bribery, carjacking, robbery, burglary, grand theft, receiving stolen property, extortion, perjury, forgery, kidnapping, arson, assault with a deadly weapon, and intimidating a witness. This bill would add the commission of specified computer crimes to the list, punishable as a misdemeanor with a maximum penalty of six months in the county jail. The commission of subsequent solicitation offenses would be punishable by imprisonment in the county jail for up to one year. How to Prove Solicitation Offenses: Solicitation requires facilitating, commanding, encouraging, promoting, recruiting, counseling, inducing, or urging another person to commit a crime. The elements of solicitation require: (1) actual words or terms used to encourage someone to commit the crime, (2) intent to complete the crime, and (3) the other person receives the request. A person can be guilty of solicitation even if the crime solicited is not completed. The person being solicited does not have to agree to commit the crime. AB 195 Page 16 Solicitation v. Attempt: "Solicitation" and "attempt" are often thought of as incomplete crimes. Attempt requires a specific intent to commit a crime and more than an initial step or act towards the commission of the crime. The act of an attempt crime must be a "substantial step" toward the commission of the crime. Solicitation does not require the initial step or substantial act toward the completion of the crime. Solicitation is complete when the request to commit the crime is made. Solicitation is a crime of words, as opposed to attempt which is a crime of both words and actions. 3)Expansion of the Definition of Computer Network: This bill expands the definition of a computer network to include smartphones. Under existing law, computer network includes "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." Expansion to smartphones is an update of existing law. Existing law does include mobile devices, however the expansion to smartphones appears to be a minor clarification of existing law. Additionally, this bill defines smartphones as follows: "a cellular radio telephone or other mobile communications device that performs many of the functions of a computer, typically having a touchscreen interface, internet access, and an operating system capable of running downloaded applications." 4)Argument in Support: According to The California Public Defenders Association, "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 AB 195 Page 17 network, or computer data in violation of prescribed provisions and defines related terms?Computing technology has expanded greatly in the last few years. With the introduction of the smartphone, computer technology advanced with a device that is highly portable, yet gives one computing power that heretofore required large, often cumbersome, equipment. Essentially, it put the power of computers into one's pocket. With the proliferation of smartphones, and their ever-growing capabilities, more private data is carried on the person. Given this incredible increase in technology, it only makes sense to include smartphones as devices that can be the target of illicit hacking and data transmission." 5)Argument in Opposition: According to Legal Services for Prisoners with Children (LSPC), "We write to inform you of LSPC's strong opposition to AB 195, a bill that would expand the scope of solicitation crimes to the digital realm. By incarcerating those who merely solicit crimes (rather than those principally liable), this bill will require significant public and human costs. Moreover, is has not been shown that this law would be an effective deterrent, so it may not be worth the price. Given California's strapped budget, this costly measure is therefore unjustified. We at LSPC believe that if the legislature seeks to inhibit behavior, they should first look to solutions outside of the prison system - which is a burden on families and taxpayers." 6)Related Legislation: AB 32 (Waldron), of this legislative session, adds an additional fine not to exceed $10,000 for each digital image of a person's body parts that were acquired as a result of an unauthorized access to a computer system. AB 32 is set for hearing in the Assembly Public Safety Committee on March 24, 2015. 7)Prior Legislation: AB 1642 (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 changes and adds the definition of specified terms. AB 195 Page 18 REGISTERED SUPPORT / OPPOSITION: Support California Public Defenders Association Opposition Legal Services for Prisoners with Children Analysis Prepared by: Gabriel Caswell/PUB. S./(916) 319-3744