BILL ANALYSIS Ó
AB 1310
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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
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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.
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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:
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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
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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
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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
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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
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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,
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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.
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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
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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
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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
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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
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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
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