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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