BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1310 Hearing Date: June 30, 2015
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|Author: |Gatto |
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|Version: |April 29, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Disorderly Conduct: Unlawful Distribution of Image
HISTORY
Source: Attorney General of California
Prior Legislation:SB 1255 (Cannella) -- Ch. 863, Stats. 2014
SB 255 (Cannella) -- Ch. 466 Stats. 2013
SB 226 (Alquist) -- Ch. 40, Stats. 2009
SB 1773 (Wayne) -- Ch. 908, Stats. 2002
AB 2886 (Frommer) -- Ch. 522, Stats. 2006
SB 612 (Simitian) -- Ch. 47, Stats. 2008
Support: California Police Chiefs; 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
Assembly Floor Vote: 79 - 0
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PURPOSE
The purposes of this bill are 1) to provide that where the
defendant is charged with distribution of a sexual image in
violation of an agreement that the image shall remain private
(cyber sexual exploitation), jurisdiction shall 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) to provide that where the same defendant or
defendants commit cyber sexual exploitation crimes in more than
one county, and the crimes are part of a scheme or involve
substantially similar acts, the charges can be tried in a single
county, as specified; 3) to provide that a search warrant for
electronic communications and records can include communications
between a service provider and a customer, as specified; and 4)
to specify procedures, standards and limitation for obtaining
and serving search warrants for electronic communications and
computer service information.
Existing law:
States that any person who uses a concealed video recorder or
camera of any type to secretly record another, identifiable
person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the other's
consent or knowledge, and for the purpose of with sexual
gratification or arousal, under circumstances in which the other
person has a reasonable expectation of privacy, including a
bedroom, bathroom, changing room and similar spaces, is guilty
of disorderly conduct, a misdemeanor, punishable by a jail term
of up to six months, a fine of up to $1,000, or both. For a
second or subsequent conviction, or where the victim is a minor,
the maximum jail term and fine is one year and $2,000
respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)
Provides that a defendant who intentionally distributes the
image of the intimate body part of another identifiable person,
or an image of the person engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation involving the person depicted, and the
defendant and the person depicted agree or understand that the
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image shall remain private, the person distributing the image
knows or should know that distribution of the image will cause
serious emotional distress, and the person depicted suffers that
distress is guilty of disorderly conduct, a misdemeanor,
punishable by a jail term of up to six months, a fine of up to
$1,000, or both. For a second or subsequent conviction, or
where the victim is a minor, the maximum jail term and fine is
one year and $2,000 respectively. (Pen. Code §§ 647, subds.
(j)(2)-(3) and (l).)
"Distribution of an image" means that the defendant personally
distributed the image, or arranged, requested, or
intentionally caused another person to distribute that image;
(Pen. Code § 647, subd. (j)(4)(B).)
"Intimate body part" means as any portion of the genitals, the
anus, and in the case of a female, any portion of the breasts
below the top of the areola, that is either uncovered or
clearly visible through clothing. (Pen. Code, § 647, subd.
(j)(4)(C).)
Distribution of an intimate image in violation of a privacy
agreement is not a crime if any of the following applies:
o The distribution is made in the course of reporting an
unlawful activity. (Pen. Code, § 647, subd. (j)(4)(D)(i).)
o The distribution is made in compliance with a subpoena
or other court order for use in a legal proceeding. (Pen.
Code, § 647, subd. (j)(4)(D)(ii).
o The distribution is made in the course of a lawful
public proceeding. (Pen. Code, § 647, subd.
(j)(4)(D)(iii).)
Existing law provides that it is an alternate felony-misdemeanor
for a person to willfully obtain the personal identifying
information of another person and to use such information to
obtain, or attempt to obtain, credit, goods, or services in the
name of the other person without consent. A felony sentence for
identity theft is to be served in a county jail pursuant to
Penal Code Section 1170, subdivision (h), unless the defendant
is disqualified from a jail term because he or she has suffered
a serious felony conviction or is required to register as a sex
offender. (Pen. Code § 530.5, subd. (a).)
Existing law defines "personal identifying information" to mean
name, address, mother's maiden name, place of employment, date
of birth, unique biometric data including fingerprint, facial
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scan identifiers, voiceprint, retina or iris image, or other
unique physical representation, unique electronic data including
and numerous other items that are associated with a person's
identify, as specified. (Pen. Code § 530.55.)
Existing law provides that the proper jurisdiction - venue - for
a crime is in a court in the jurisdiction where the crime was
committed. (Pen. Code § 777.)
Existing law provides that when a crime is committed partly in
one county and party in another, trial can be held in either
county. (Pen. Code § 781.)
Existing law provides that charges arising under the identity
theft law (Penal Code § 530.5) can be filed in the county where
the theft of the personal identifying information occurred, or
the county where the information was used illegally. Where
multiple identity theft crimes involving the same defendant and
the same victim occur in multiple jurisdictions, any one of
those jurisdictions is a proper jurisdiction for trial of all
charges. (Pen. Code § 786, subd. (b)(1).)
Existing law provides that where multi-county identity theft
crimes involving the same defendants and the same victim are
filed in a single county, the court shall hold a hearing to
determine if that county is the proper place for trial, or
whether some charges should be "severed" and filed in another
county. The prosecutor shall present evidence that the
prosecutors in the other counties where the crimes have occurred
agree to prosecution in the county where the case was filed.
The court shall consider availability of evidence, fairness to
parties and convenience to witnesses in making this
determination. (Pen. Code § 786, subd. (b)(2).)
Existing law provides where an identity theft case is filed in
the county where the victim lived at the time of the offense,
and no other basis for jurisdiction in that county applies, the
court shall consider the availability of evidence, fairness to
parties and convenience to witnesses in making this
determination. (Pen. Code § 786, subd. (b)(3).)
Provides that a search warrant may be issued upon any of the
following grounds:
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When the property was stolen or embezzled;
When the property or things were used as the means of
committing a felony;
When the property or things are in the possession of any
person with the intent to use them as a means of committing a
public offense, or in the possession of another to whom he or
she may have delivered them for the purpose of concealing them
or preventing them from being discovered;
When the property or things to be seized consist of any item
or evidence that tends to show that a felony has been
committed or that a particular person has committed a felony;
When the property or things to be seized consist of evidence
that tends to show sexual exploitation of a child or
possession of child pornography;
When there is a warrant to arrest a person;
When a provider of electronic communication or remote
computing service has records or evidence showing that
property was stolen or embezzled constituting a misdemeanor,
or that property or things are in the possession of any person
with the intent to use them as a means of committing a
misdemeanor, or in the possession of another to whom he or she
may have delivered them for the purpose of concealment;
When the things to be seized include evidence showing failure
to secure workers compensation;
When the property includes a firearm or deadly weapon and
specified circumstances related to domestic violence,
examination of a person's mental condition; protective orders,
as specified;
When the information to be received from the use of a tracking
device tends to show a felony or misdemeanor violation of the
Fish and Game Code, or a misdemeanor violation of the Public
Resources Code ;
For purposes of obtaining a sample of the blood of a person in
a driving under the influence matter when the person has
refused to submit or complete, a blood test as required, as
limited and specified;
Beginning January 1, 2016, the property or things to be seized
are firearms or ammunition or both that are owned by, in the
possession of, or in the custody or control of a person who is
the subject of a gun violence restraining order, as specified.
(Pen. Code § 1524, subd. (a)(1)-(14).)
Provides that the property seized in a search warrant may be
taken from any place, or from any person in whose possession the
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property or things may be. (Pen. Code, § 1524, subd. (b).)
Provides that when the property or things to be seized consist
of any item or constitute any evidence that tends to show a
violation of identity theft, the magistrate may issue a warrant
to search a person or property located in another county if the
person whose identifying information was taken or used resides
in the same county as the issuing court. (Pen. Code § 1524,
subd. (j).)
States that a provider of an electronic communication or remote
computing service shall, pursuant to a warrant, disclose to a
prosecuting or investigating agency the name, address, telephone
number or subscriber identity, billing records and length and
types of services. Notice to the subscriber is not required.
(Pen. Code 1524.3, subds. (a)-(b).)
Allows a court issuing a search warrant as to an electronic
communication or remote computing service, to grant a motion to
quash or modify the warrant if the records sought are unusually
voluminous or compliance would cause an undue burden on the
provider. (Pen. Code 1524.3, subd. (c).)
States that a provider of electronic communication or remote
computing services, upon the request of a peace officer, shall
take all necessary steps to preserve records and evidence in its
possession pending the issuance of a warrant or through a
written request and affidavit declaring an intent to file a
warrant. Records shall be retained for a period of 90 days,
with a 90-day extension upon a renewed request. (Pen. Code §
1524.3, subd. (d).)
This bill:
Expands the jurisdiction of a criminal action for unauthorized
distribution of an image of a person's intimate body parts or
sexual conduct 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.
Allows prosecution in any of the jurisdictions when multiple
offenses of unauthorized distribution of an intimate image,
either all involving the same defendants or defendants and the
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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.
Authorizes jurisdiction to extend to all associated offenses
connected together in their commission to the underlying
unauthorized distribution of an intimate image.
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.
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.
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 hard ship to, the victim and
witnesses.
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 shall consider the rights of
the parties, the access of the parties to evidence, the
convenience to witnesses, and the interests of justice
States that a provider of electronic communication service or
remote computing service, shall disclose to a prosecuting or
agency the contents of communication originated by or addressed
to the service provider when the governmental entity is granted
a search warrant, as specified, in addition to the subscriber
records, and service and billing information allowed under
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current law.
Requires that the search warrant be limited to information
necessary to achieve the objective of the warrant, including by
specifying the targeted individuals or accounts, applications or
services, the types of information, and the time periods covered
by the warrant.
Specifies that information obtained through the execution of the
warrant pursuant that is unrelated to the objective of the
warrant shall be sealed and not subject to further review
without a court order.
Requires notice to a subscriber or customer upon receipt of the
records by the governmental entity that obtained the warrant.
Authorizes the court to delay notification, in 90-day
increments, upon showing that there is reason to believe that
notification of the warrant may have an adverse result,
including:
Endangering the life or physical safety of an individual;
Flight from prosecution;
Destruction of or tampering with evidence;
Intimidation of a witness;
Serious harm to the investigation or delay of trial.
Requires, upon expiration of any delay of notification, the
governmental entity to provide to the customer by regular mail
or e-mail a copy of the request and the following:
A reasonably specific statement of the nature of the law
enforcement inquiry;
Notice that information maintained for the customer by the
service provider was requested by and supplied to the
governmental authority;
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The date on which the request was made and the information
supplied;
Disclosure of any delay in notification;
The court that issued the order; and
A written inventory of the property that was taken pursuant to
the warrant and then provided to the court.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
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Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Cyber exploitation, stalking, and harassment are major
problems in today's technology-driven society.
Studies show that 70% of cyber stalking victims are
female. For example, San Diego resident Kevin
Bollaert was convicted of identity theft and extortion
in connection with a cyber-porn revenge website and
sentenced to a term of 18 years. Bollaert's website
contained approximately 10,000 images. Almost all of
them were images of women. There have been two
additional recent arrests through investigations by
the Attorney General's eCrime unit. These
investigations have revealed the need for search
warrant capabilities for this new class of crime as
well as jurisdictional fixes.
For violations of subdivision (j) of Section 647 of
the Penal Code (cyber sexual exploitation), current
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law requires each case be brought in the county where
the crime occurred, unless identity theft or
conspiracy can also be proven. With e-crime, the
county in which the crime occurred is not
well-defined, but is typically thought of as where the
photo was uploaded or posted.
To address jurisdictional challenges in prosecuting
technology-related crimes, California has already
altered the jurisdictional rules for identity theft
cases. AB 1310 would extend the identity theft model
to cyber exploitation, allowing prosecutors to bring
an action against an individual in the jurisdiction in
which the depicted person resides, effectively
addressing the problems outlined above. Under this
bill, jurisdiction will include:
The county in which the offense occurred.
The county in which the victim resided at
the time the offense was committed.
The county in which the intimate image
was used for an illegal purpose.
Since posters and website operators commonly reside
outside of the victims' jurisdiction, (and often out
of state), the bill would limit the burden placed on
the victim during prosecution, and render moot a claim
that California has no jurisdiction over an
out-of-state perpetrator. AB 1310 would also allow
for the prosecution of a defendant who has committed
multiple offenses of cyber exploitation under a
similar scheme to be brought in any one county where
there is jurisdiction.
Currently, cyber sexual exploitation is not grounds
for the issuance of a search warrant. However, these
cases require law enforcement to obtain Internet
Service Provider (ISP) records. Those records are
protected pursuant to the federal Electronic
Communications Privacy Act (ECPA), including
electronic communication content stored by the
provider (e.g. e-mail records held by an ISP). A
public or private ECS (Enterprise Collaboration
System) is generally prohibited from voluntarily
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disclosing the content of wire and electronic
communication intercepted during transmission. One of
the exceptions to this rule is a case where the
communication provider inadvertently obtains
information that pertains to the commission of a
crime. The appropriate mechanism available to
California law enforcement to compel disclosure of
information is a search warrant.
Under current California law, however, law enforcement
lacks the authority to compel information from ISPs
about cyber exploitation. This bill gives law
enforcement an additional tool to better investigate
in cyber exploitation case. Specifically, the bill
narrowly expands the search warrant provision is to
include a limited electronic communication authority.
At the same time, recognizing the value of privacy, it
also includes a search warrant notification
requirement and requires the sealing of any content
that is not relevant to the case. The search warrant
provision is limited to electronic communication and
does not extend to inside the home."
2.Basic Concepts: Jurisdiction - Power of the Court to Try a
Case; Venue - the Place of the Trial; and Vicinage -
Geographic Area from which the Jury is Chosen
Subject Matter Jurisdiction
Subject matter jurisdiction is the basic power of a court to
hear a case. Under Article VI, Section 10, of the California
Constitution, the superior court has "original jurisdiction in
all causes except those given by statute to other trial
courts." Subject matter jurisdiction cannot be waived or
conferred by the parties. A judgment entered in a court
without subject matter jurisdiction is void. (Griggs v.
Superior Court (1976) 16 Cal.3d 341, 344.) Superior courts
have jurisdiction over felony criminal matters. (Pen. Code §
681.) Thus, any superior court in the state has subject matter
jurisdiction over an identity theft case charged as a felony.
Venue and Vicinage
The California Supreme Court in People v. Price (2001) 25
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Cal.4th 1046, 1054-1056, explained the concepts of venue
(territorial jurisdiction) and vicinage (area from which jury
pool is chosen) as applied to criminal prosecutions:
Venue refers to the location where the trial is held,
whereas vicinage refers to the area from which the
jury pool is drawn. It is possible in theory to
change one but not the other. The concepts . . . are
closely related, as a jury pool ordinarily is selected
from the area in which the trial is to be held.
...Venue is historically significant ... because ? the
? practice of transporting colonists ?to either
England or other English colonies for trial was among
the principal complaints of the colonists.
?Objections to that practice led to the inclusion of
Article III, Section 2 in the United States
Constitution. . . . Most California venue statutes
serve a similar purpose in reducing 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.
When the Legislature creates an exception to the rule
of Section 777 [that trial should proceed in the
county where the crime occurred], the venue statute is
remedial and for that reason is construed liberally to
achieve the legislative purpose of expanding criminal
jurisdiction. (Internal citations omitted; emphasis
added.)
The court in Price further explained that the right of vicinage
in California is effectively limited to a requirement that there
be a reasonable nexus between the crime and the county of trial.
(Id, at 1074.) The right to an impartial jury is a more
important consideration than the place from which a jury is
chosen. Today, defendants often argue that jurors should know
nothing about a case in order to eliminate prejudice about the
defendant's guilt. (Id., at 1059-1060, 1064-1065.)
3.Special Rules for Determining the County of Trial for Identity
Theft - Application to Cyber-porn Revenge or Exploitation
In 2002 the Legislature allowed trial in one county of identity
theft crimes that occurred in multiple counties and involved a
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single victim. (SB 1773 (Wayne), Ch. 908, Stats. 2002.) An
identity thief can relatively easily and quickly use a victim's
identifying information in many counties across the state. Such
cases could give rise to overlapping prosecutions, leading to
numerous problems, including investigation and evidence
collection problems, claims that the first prosecutor to file
charges should have resolved all charges arising out of an
incident and others. To address such concerns, the applicable
venue section was amended to direct a court to consider whether
all charges should be tried in one county, or whether some
charges should be severed and tried in a different county. The
prosecutor in such a case is directed to obtain the agreement of
the district attorneys in the other counties where venue would
also lie.
In 2009, AB 266 (Alquist) addressed a situation that is also
relatively common - the same defendants are involved in an
identity theft scheme that involved numerous victims in more
than one county. Improper releases of personal information -
mistaken release of social security numbers or credit card
information for example - often affect many citizens. It is
also not uncommon for identity thieves to obtain groups of
identity "profiles" (identifying information sufficient for
identity theft) at one time. Prosecutions of related cases
involving multiple victims in multiple counties present the same
types of problems that arise where crimes against a single
victim occur in multiple counties. Where a common scheme is
involved, evidence from each incident or crime is typically
admissible as to each offense. Requiring separate prosecution
in each county where related identity theft cases occurred could
result in presentation of the same evidence in each county
resulting in a waste of judicial, prosecution and defense
resources.
Similar issues or considerations apply to cases involving cyber
porn revenge or exploitation. Prosecution on related charges in
more than one county can be very problematic for defendants
also. A defendant may be unable or unwilling to resolve a case
where he or she faces prosecutions in other counties involving
the same charges. Under existing law in cyber porn revenge
cases, the defendant and prosecutors could spend a great deal of
time and expense negotiating dispositions that reach across
county lines.
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4.This Bill Authorizes Seizure of the Contents of Communications
between a Subscriber and a Service Provider in a Range of
Misdemeanors, not Cyber-porn Revenge Cases Only, and Includes
Limitations and Specific Procedures for Obtaining and Serving
Warrants
This bill was recently amended to strike the specific
authorization for search warrants in cyber-porn revenge cases.
Instead, the bill was amended to authorize search warrants for
electronic data and subscriber to include "the contents of
communication originated by or addressed to the service
provider." The amendments also include a number of limitations
and procedures with which the government must comply in serving
a warrant a communications or computer service provider. It
appears that in the context of cyber-porn revenge, the contents
of these communications would include transmission of the
offending image and confirmation that it had been received,
uploaded and distributed.
Existing law provides, in relevant part, the following as
concerns search warrants served on a provider of electronic
communications or remote computing service in a misdemeanor
investigation:
A provider of electronic communication ? or remote
computing service? shall disclose to a ? prosecuting
or investigating agency the name, address, local and
long distance telephone toll billing records,
telephone number or other subscriber number or
identity, and length of service of a subscriber to or
customer of that service, and the types of services
the subscriber or customer utilized, when the
governmental entity is granted a search warrant
pursuant to paragraph (7) of subdivision (a) of
Section 1524. (Pen. Code § 1524.3 subd. (a).
The bill amends subdivision (a) of Penal Code Section 1524.3, as
follows:
A provider of electronic communication ? or remote
computing service?shall disclose to a ? prosecuting or
investigating agency the name, address, local and long
distance telephone toll billing records, telephone
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number or other subscriber number or identity, and
length of service of a subscriber to or customer of
that service, and the types of services the
subscriber or customer utilized, and the contents of
communication originated by or addressed to the
service provider when the governmental entity is
granted a search warrant pursuant to paragraph (7) of
subdivision (a) of Section 1524. (The amendments to
the subdivision are in bold italics.
While specifically granting the authority for the government to
obtain the contents of electronic communications between the
subscriber and the service provided in misdemeanor cases, the
bill includes a fairly long list of procedures and limitations
applicable in these matters. In particular, the bill requires
that the information sought be limited to that necessary to the
objective of the warrant, that unrelated information be sealed
and that notice be given unless specified adverse consequences
could occur.
The author has explained that the bill would have originally
allowed a warrant for the search of a suspect's home computer.
To address arguments that execution of a warrant at a person's
home was too great an intrusion for a misdemeanor prosecution of
cyber-porn revenge or exploitation, the bill was amended to
authorize a warrant served on a service provider for the
contents of the suspect's communications with his or her service
provider. As noted above, the amendments also included a number
of protections for the target of the investigation and service
providers.
5. Inconsistency in the Provisions Concerning Jurisdiction for
a Cyber-porn Revenge or Exploitation Case
The intent of the bill appear to be to adapt the rules for
determining the appropriate place for trial of an identity theft
case to cases involving distribution of intimate image under
circumstances where the person depicted and the distributor
agreed that the image shall remain private. This is
colloquially called cyber-porn revenge or exploitation. The
specific provisions concerning the county where such a case
should be tried - the jurisdiction or venue for the case - refer
to violating privacy rights through illegal distribution of an
intimate image. However, the provisions include a reference to
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the proper place of trial for any crime included in subdivision
(j) of section 647.
Subdivision (j) of Section 647 includes a number of invasion of
privacy crimes. One crime involves surreptitious viewing of a
person in a bedroom, bathroom, changing room or other similar
location. Another two crimes involves surreptitious video
recording or photographing a person, either for sexual
gratification or to simply invade the privacy of the victim.
These crimes would not appear to present problems with
determining the proper county for prosecution. Unlike
cyber-porn revenge or exploitation, these invasion of privacy
crimes are committed in a fixed location. In fact, the crime
includes an element that the victim had a reasonable expectation
of privacy in the location of the crime. It would arguably be
impractical or unreasonable to allow prosecution in a county
solely because it is the residence of the victim. All the
witnesses and evidence would have to be brought from the county
of the crime to county where the victim lives.
In contrast, one of the harms of cyber-porn revenge is that the
victim's image can be instantly distributed anywhere in the
Internet. The image may have been captured in one county, the
agreement that the image remain private been made in another
county, the image uploaded to the Internet in another county and
the image viewed virtually any place and the victim suffer
emotional harm in the place where she lives. As such,
flexibility in determining the proper county for prosecution
appears to be necessary in a cyber-porn revenge case.
If the author's intent is to apply the identity-theft form of
jurisdiction or venue to cyber-porn revenge or exploitation, the
bill should limit those provisions to paragraph (4) of
subdivision (j) of Section 647.
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AB 1310 (Gatto ) Page
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