BILL ANALYSIS Ó AB 1310 Page 1 Date of Hearing: May 5, 2015 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Mike Gatto, Chair AB 1310 (Gatto) - As Amended April 29, 2015 SUBJECT: Disorderly conduct: unlawful distribution of image SUMMARY: Allows cyber exploitation cases to be prosecuted in the same jurisdiction in which the offense occurred, where the victim resided when the offense was committed, or where the intimate image was used for an illegal purpose, and allows law enforcement agencies to get a search warrant to seize electronic images used for cyber exploitation. Specifically, this bill: 1)Expands the jurisdiction of a criminal prosecution for cyber exploitation to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose. 2)Allows prosecution in any of the specified jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions. 3)Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying AB 1310 Page 2 unauthorized distribution of an intimate image. 4)Requires the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county. 5)Requires the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing. 6)Requires the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hardship to, the victim and witnesses. 7)Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim's residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court is required to consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice. 8)Expands the grounds for issuance of a search warrant to include property or things to be seized which consist of evidence that tends to show violation of California's cyber exploitation statutes. AB 1310 Page 3 9)Requires a provider of an electronic communication service or a remote computing service to disclose the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, the length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication that originated by or was addressed to the service provider, when a law enforcement agency is granted a search warrant under this bill. 10)Requires the search warrant to be limited to only that information necessary to achieve the objective of the warrant, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate. 11)Requires that information obtained through the execution of a search warrant pursuant to this section that is unrelated to the objective of the warrant must be sealed and is not subject to further review without an order from the court. 12)Requires a law enforcement agency to provide notice, by mail or email, to the person whose records or data were obtained under a search warrant but allows the court to delay the notice in 90-day increments if law enforcement can show that notice would have an adverse result. 13)The notice must include a copy of the process or request, a statement with reasonable specificity that explains the nature of the inquiry and informs the person: AB 1310 Page 4 a) that the person's data, which is maintained by the service provider named in the process or request, was requested by that governmental authority and supplied to that governmental authority and the date on which the request and supplying took place; b) that notification was delayed (if applicable); c) the court the issued the order permitting the delay; and d) a copy of the written inventory of the property taken that was provided to the court. 14)Defines "adverse result" as: endangering the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, or otherwise seriously jeopardizing an investigation or unduly delaying a trial. EXISTING LAW: 1)Makes it a misdemeanor crime for a person to intentionally distribute the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution AB 1310 Page 5 of the image will cause serious emotional distress, and the person depicted suffers that distress. A person "intentionally distributes" an image when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. "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. (PC 647(j)(4)) 2)Specifies that except as provided, when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory. (PC 781) 3)Requires law enforcement, in certain instances, to obtain a warrant to search a person or a person's property and states that a search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate. (PC 1523) 4)States that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a AB 1310 Page 6 renewed request by the peace officer. (PC 1524.3(d)) FISCAL EFFECT: None. This bill has been keyed non-fiscal by the Legislative Counsel. COMMENTS: 1)Purpose of this bill . This bill is intended to give law enforcement additional tools to investigate and prosecute cyber exploitation (i.e., the non-consensual distribution and publication of intimate photos and videos). Specifically, the bill allows law enforcement agencies to get a search warrant to access digital databases that may contain photos and other evidence of cyber exploitation and allows prosecutors to bring cyber exploitation cases in the county where the victim resides, the county where the defendant resides, or the county in which the crime occurred. This bill is author-sponsored. 2)Author's statement. According to the author, "It is essential that we protect our communities from criminals who exploit and violate their victims' privacy and then 'hide in plain sight' behind computer screens and jurisdictional technicalities. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn't be allowed to use legal technicalities as a shield against prosecution. AB 1310 will give law enforcement the necessary tools to investigate and prosecute cyber exploitation cases by allowing a case to be prosecuted in the jurisdiction where the victim resides and allowing search warrants to be issued for the timely investigation of cyber exploitation crimes." 3)What is cyber exploitation ? Cyber exploitation, often referred to as revenge porn, is defined as the non-consensual distribution and publication of intimate photos and videos. The poster of this content sometimes obtains the photos or AB 1310 Page 7 videos with consent during a prior relationship, or steals them later after the relationship has ended by hacking into the victim's phone, computer, or social media accounts. 4)The proliferation of cyber exploitation, stalking, and harassment . Recent studies indicate that harassment via networked technologies is increasing. In 2006, the Bureau of Justice Statistics estimated that 850,000 people in the United States endured physical stalking with an online component, such as threats over email and text, attacks sites devoted to them, or harassment on social networks. The study also found that 60% of stalking victims (including stalking via networked technologies) were female. In September 2014, Pew came out with a study that reinforced this evidence, estimating that 20% of women who are in their 20s experience cyber stalking (defined as repeated course of conduct targeted at an individual causing fear of physical harm) or cyber sexual harassment. 5)The Department of Justice's efforts to crack down on e-crime . In 2011, Attorney General (AG) Kamala Harris created an eCrime Unit to identify and prosecute identity theft crimes, cybercrimes and other crimes involving the use of technology. On April 5, 2015, the AG announced that Kevin Christopher Bollaert, the operator of a cyber-exploitation website which posted nude photos of individuals with personal identifying information without their consent, was sentenced to 18 years in prison. The case was the first criminal prosecution of a cyber-exploitation website operator in the country. Bollaert's website contained approximately 10,000 images that were the subject of cyber exploitation. Bollaert created the website ugotposted.com, which allowed the anonymous, public posting of private photographs containing nude and explicit images of individuals without their permission. Unlike many other cyber exploitation websites AB 1310 Page 8 where the subject of the photos is anonymous, ugotposted.com required that the poster include the subject's full name, location, age, and Facebook profile link. As a result, the victims experienced severe harassment through social media, at their places of work and in other communities. Bollaert then created a second website, changemyreputation.com, in October 2012, which he used when individuals contacted ugotposted.com requesting that content be removed from the site. Bollaert would extort victims by replying with a changemyreputation.com email address and offering to remove the content for a fee ranging from $250 to $350. Bollaert made $900 per month from advertising on the site and received payments totaling approximately $30,000. Since 2013, when the AG began investigating Bollaert's case, the AG has made additional arrests on cyber exploitation charges. According to the Department of Justice, these investigations have revealed the need for additional search warrant capabilities for this new class of crime as well as broader provisions regarding in which jurisdictions these crimes can be prosecuted. 6)Expanding jurisdiction for prosecution . For violations of cyber exploitation, current law requires each case be brought in the county where the crime occurred (unless an additional crime of identity theft or conspiracy can also be proven). With e-crime, the county in which the crime occurred is not always well-defined, but is typically thought of as where the photo was uploaded or posted. These jurisdictional restrictions cause two primary problems: first, if a criminal commits cyber exploitation in more than one county, he must be tried separately in each jurisdiction, which can result in unnecessary costs for law enforcement agencies. In addition, if the defendant resides outside of California, he or she may argue that he is not subject to jurisdiction in California, which, if argued successfully, AB 1310 Page 9 would preclude a California prosecution altogether. This bill expands prosecutorial jurisdiction to mirror the options available in identity theft cases. Specifically, under this bill the AG or a district attorney can bring an action against an individual in any of the following jurisdictions: a) where the offense occurred; b) where the victim resided when the offense was committed; or c) where the intimate image was used for an illegal purpose. The remote nature of cyber exploitation crimes arguably warrants prosecutorial options similar to that of identity theft crimes. 7)Permitting search warrants for cyber exploitation investigations . Generally, search warrants are limited to cases where law enforcement is investigating felony conduct. However, law enforcement agencies can seek a search warrant to investigate misdemeanors in certain instances specified in statute. This bill seeks to allow law enforcement agencies to obtain search warrants specifically in cyber exploitation cases, which are misdemeanor cases, so that cyber exploitation images can be seized as evidence and cyber exploitation criminals can be prosecuted. Under this bill, law enforcement would have the ability to get a warrant to search electronic databases and retrieve the victims' images. AB 1310 Page 10 8)Recent amendments reflect a compromise between the law enforcement and civil rights interests . According to the author's office, the recent amendments to the bill represent a compromised reached between the American Civil Liberties Union (ACLU) and the Department of Justice. The ACLU had expressed concerns that search warrant provisions of the bill were too broad and could cause to great an intrusion on personal privacy for individuals subject to investigation for cyber exploitation. The Department of Justice was willing to accept amendments that narrow the search warrant provisions of the bill, so that a search warrant may only be obtained for electronic communications only, not for access to an individual's home. The recent amendments also add additional safeguards and procedures - including notice to the individual subject to the warrant and a requirement to seal any content not relevant to the case - which are designed to ensure a balance between law enforcement needs and personal privacy interests. 9)Privacy concerns . The ACLU had expressed concerns that the search warrant provisions of the bill could be too invasive of personal privacy when it comes to defendants in cyber exploitation cases. The author has accepted amendments to address this concern. In the bigger picture, of course, this bill will make it easier to stop cyber exploitation, a high-tech crime that takes the traditional claim of "invasion of privacy" to an extreme. This bill helps law enforcement agencies more effectively investigate and prosecute cyber exploitation, stop existing cyber exploitation criminals, and discourage others from committing the crime, which ultimately leads to better protection of personal privacy. 10)Arguments in support . According to the Department of AB 1310 Page 11 Justice, "Recent cases on cyber exploitation have revealed several deficiencies in law... First?current law requires that each case of cyber exploitation be brought in the county where the crime occurred. With e-crime, the county in which the crime occurred is not always well defined, but is typically thought of as where the photo was uploaded or posted? [I]f a criminal commits cyber exploitation in more than one county, he must be tried separately in each jurisdiction, which can result in significant and unnecessary costs for taxpayers, prosecutors, and defendants. In addition to the waste of public resources, it is particularly difficult on victims who must testify repeatedly about the same crime in different trials. Perhaps even more concerning - if the criminal resides outside of California, he may argue that he is not subject to jurisdiction at all which, if argued successfully, would prevent California prosecutors from trying him? "Second, cyber exploitation cases demand that law enforcement have the ability to obtain Internet Service Provider (ISP) records in order to retrieve victims' images and effectively investigate and prosecute these crimes. Under current California law, however, for misdemeanor crimes (including cyber exploitation), law enforcement lacks the authority to compel information from ISPs by either subpoena or search warrant. Consequently, law enforcement must find another related crime that constitutes a felony to obtain the necessary records or they won't be able pursue the case further? AB 1310 is critical to empower law enforcement to address one of society's most heinous crimes and provide avenues for victims to receive justice." According to the California Police Chiefs Association, "AB 1310 would permit the seizure of cyber exploitation, commonly referred to as 'revenge porn' images as grounds for issuance of a search warrant, giving law enforcement the ability to search electronic databases and retrieve the victims' images. It would additionally allow the prosecuting district attorney's office to bring an action against an individual in AB 1310 Page 12 the jurisdiction in which the individual whose image was published resides. Since poster and website operators commonly reside outside of the victims' jurisdiction, this would relieve some of the burden placed on the victim during prosecution." The California Statewide Law Enforcement Association, states in support that this bill, "updates current law to make it easier to seek search warrants and bring cases to combat cyber exploitation. Given the rapid growth in these crimes, and the life-long impact on its victims, we believe that it is important to provide law enforcement with the tools necessary to combat these crimes." 11)Arguments in opposition . The California Public Defenders Association (CPDA), states in opposition to this bill that, "The problem with expanding jurisdiction to counties where the offense was not committed was expressed in by the California Supreme Court in People v. Posey (2004) 32 Cal.4th 193, 210: "The principal justification today for the venue requirement of trial in the vicinity of the crime is to 'safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.' It is [this] point which is most distressing to CPDA. The ability of a person to defend against a charge may be severely compromised if he or she could not reasonably obtain evidence by due diligence." "This point was again recognized by the California Supreme Court in People v. Price (2001) 25 Cal.4th 1046, 1056, where it explained, 'Most California venue statutes serve a similar purpose in deducing the potential burden on a defendant who might otherwise be required to stand trial in a distant location that is not reasonably related to the alleged criminal conduct.' For example, a person held for trial in San Francisco may have great difficulty obtaining evidence from AB 1310 Page 13 San Diego to establish that someone else distributed the image at issue. The result would be a violation of due process and is grossly unfair." 12)Related legislation . SB 178 (Leno) prohibits a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations. SB 178 is pending in the Senate Appropriations Committee. 13)Prior legislation . SB 255 (Cannella), Chapter 466, Statutes of 2013, created a new misdemeanor for the distribution of an image of an identifiable person's intimate body parts which had been taken with an understanding that the image would remain private, sometimes referred to as "revenge porn." SB 226 (Alquist), Chapter 40, Statutes of 2009, provided that where the same defendant or defendants committed identity theft crimes in more than one county, and the crimes were part of a scheme or involve substantially similar acts, the charges could be tried in one county. SB 612 (Simitian), Chapter 47, Statutes of 2008, provided that the venue for trial of an identity theft crime included the county in which the victim resided and granted the trial court authority to determine whether the county of the victim's residence was the appropriate place for trial in a particular case. SB 662 (Figueroa), Chapter 896, Statutes of 1999, established a procedure for obtaining and serving a search warrant on a foreign corporation that provided electronic communication services or remote computing services to the general public and was registered to do business in California. 14)Double referral . This bill was double-referred to the AB 1310 Page 14 Assembly Public Safety Committee, where it was heard on April 28, 2015, and passed on a 7-0 vote. REGISTERED SUPPORT / OPPOSITION: Support Attorney General Kamala Harris Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California District Attorneys Association California Police Chiefs Association California Statewide Law Enforcement Association Crime Victims United of California Los Angeles Police Protective League Peace Officers Research Association of California Riverside Sheriffs Association Opposition California Public Defenders Association California Attorneys for Criminal Justice Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200 AB 1310 Page 15