BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1310 (Gatto) - Disorderly conduct: unlawful distribution of
image
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|Version: July 7, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1310 would do the following:
Expand the jurisdiction of criminal actions for unauthorized
distribution of an intimate image or sexual conduct (cyber
exploitation) to include the county in which the offense
occurred, the county in which the victim resided when the
offense was committed, or the county in which the intimate
image was used for an illegal purpose.
Provide that where the same defendant or defendant(s) commit
cyber exploitation crimes in more than one jurisdiction, and
the crimes are part of a scheme or involve substantially
similar acts, the charges can be tried in a single county.
Expand authority to obtain a search warrant for electronic
communications and records to include communications between a
service provider and a customer (content).
Specify procedures, limitations, and standards, including
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noticing requirements, related to obtaining a search warrant
for electronic communications and computer service
information.
Fiscal
Impact:
Expanded jurisdictional authority : Potential cost savings in
judicial, prosecutorial, and defense counsel resources to the
extent the expanded jurisdictional authority eliminates the
need to conduct separate proceedings in more than one county.
Noticing requirements : Potential minor to moderate increase
in local costs, potentially in excess of $50,000 statewide, to
local law enforcement agencies for those noticing provisions
in the bill that exceed requirements under existing state and
federal law. To the extent local agency expenditures qualify
as a reimbursable state mandate, agencies could claim
reimbursement of those costs (General Fund). Costs would be
dependent on various factors including but not limited to the
number of persons requiring notice, both contemporaneously and
under the delayed noticing provisions, time/workload required
per notice, and the method of noticing used.
Background: Existing law provides that the proper venue for a crime is in
a court in the jurisdiction where the crime was committed. Under
the circumstance where a crime is committed partly in one county
and partly in another, trial can be held in either county.
(Penal Code (PC) §§ 777, 781.)
In the case of crimes involving identity theft, existing law
provides that charges can be filed in the county where the crime
occurred or in the county where the information was used
illegally. Where multiple identify theft crimes involve the same
defendant or defendants and the crimes are part of a scheme or
involve substantially similar acts, the charges can be tried in
a single county. This bill seeks to extend these jurisdictional
provisions to crimes involving cyber exploitation, which like
identify theft crimes, can involve multiple victims across
jurisdictions.
The Fourth Amendment to the U.S. Constitution and Article I,
Section 13 of the California Constitution protect the right of
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the people against unreasonable searches and seizures. In recent
cases, the U.S. Supreme Court has affirmed that Fourth Amendment
protections extend to electronic information, and that
protection must keep pace with advancing technology.
Existing federal law under the Electronic Communications Privacy
Act provides that a government entity may only access the
contents of communications in electronic storage for 180 days or
less pursuant to a warrant. If the contents of a wire or
electronic communications have been in electronic storage in an
electronic communications system for more than 180 days, a
government entity may require its disclosure through other means
such as a subpoena or a court order with prior notice to the
subscriber or customer. However, a government entity may access
the contents of a wire or electronic communications that have
been in electronic storage for more than 180 days without
required notice to the subscriber or customer if the government
entity obtains a warrant.
Further, under existing federal law, a governmental entity may
require a provider of electronic communication service to
disclose a record or other information pertaining to a
subscriber to or customer of such service under specified
circumstances, including pursuant to a warrant or court order. A
governmental entity receiving records or information under this
provision of federal law is not required to provide notice to a
subscriber or customer. (18 USC § 2703.)
Under existing state law, a provider of electronic communication
service or remote computing service, as defined, is required to
disclose to a governmental 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, as specified. Under existing state law, a
governmental entity receiving subscriber records or information
is not required to provide notice to a subscriber or customer.
(PC § 1524.3.)
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Proposed Law:
This bill would expand 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. Additionally,
this bill:
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 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.
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 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 obtains a warrant
requiring disclosure of any of the following information:
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, the types of services the
subscriber or customer utilized, or the contents of
communication originated by or addressed to the service
provider.
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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:
o Endangering the life or physical safety of an
individual;
o Flight from prosecution;
o Destruction of or tampering with evidence;
o Intimidation of a witness;
o 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:
o A reasonably specific statement of the nature of
the law enforcement inquiry.
o Notice that information maintained for the
customer by the service provider was requested by and
supplied to the governmental authority.
o The date on which the request was made and the
information supplied;
o Disclosure of any delay in notification.
o The court that issued the order.
o A written inventory of the property that was
taken pursuant to the warrant and then provided to the
court.
Related
Legislation: SB 178 (Leno) 2015 would prohibit a government
entity from compelling the production of, or access to,
electronic-communication information or electronic-device
information without a search warrant or wiretap order, except
under specified emergency situations. This bill is pending
hearing in the Assembly Committee on Appropriations.
Prior Legislation: AB 226 (Alquist) Chapter 40/2009 provides
that where the same defendant or defendants commit identity
theft crimes in more than one jurisdiction, and the crimes are
part of a scheme or involve substantially similar acts, the
charges can be tried in a single county.
SB 467 (Leno) 2013 would have required a search warrant for
access to electronic communications, and mandated specified
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notifications by law enforcement. This bill was vetoed by the
Governor with the following message:
This bill requires law enforcement agencies to obtain a search
warrant when seeking access to electronic communications.
Federal law currently requires a search warrant, subpoena or
court order to access this kind of information and in the vast
majority of cases, law enforcement agencies obtain a search
warrant. The bill, however, imposes new notice requirements that
go beyond those required by federal law and could impede ongoing
criminal investigations. I do not think that is wise.
Staff
Comments:
Expanded jurisdictional authority
The provisions of this bill providing for expanded
jurisdictional authority to prosecute cyber exploitation crimes
could potentially result in future cost savings in judicial,
prosecutorial, and defense counsel resources to the extent a
defendant or defendants could be prosecuted for multiple
offenses committed in more than one jurisdiction in one county,
eliminating the need to conduct separate proceedings in multiple
jurisdictions.
Noticing requirements
This bill imposes new noticing requirements on governmental
agencies receiving subscriber records (including name, address,
telephone toll billing records, telephone number or other
subscriber number or identity, and length of service), and the
contents of communications originated by or addressed to a
service provider, pursuant to a warrant under specified
circumstances. Under existing state law, pursuant to subdivision
(b) of PC § 1524.3, a governmental entity receiving specified
information and records pursuant to a warrant is not required to
provide notice to a subscriber or customer.
Certain noticing requirements specified in the bill are
consistent with provisions of federal, state, and case law, and
are not estimated to result in increased costs to governmental
agencies. However, as noted in the Background Section of this
analysis, under existing federal law (18 USC § 2703), a
governmental entity is not required to provide notice to a
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subscriber or customer when a warrant is obtained for specified
electronic information. Additionally, the delayed notification
provisions under federal law apply only to use of administrative
subpoenas or court orders, which require customer notification.
As a result, certain provisions of this bill will result in a
higher level of service for local agencies. To the extent local
agency expenditures qualify as a reimbursable state mandate,
agencies could claim reimbursement of those costs (General
Fund).
The costs to agencies would be dependent on various factors
including but not limited to the number of persons requiring
notice, both contemporaneously and under the delayed noticing
provisions, time/workload required per notice, and the method of
noticing used. The requirements under delayed notification
additionally require a written inventory of all information
obtained, as well as other specified information regarding the
data request and delayed notification.