BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1310 (Gatto) - Disorderly conduct: unlawful distribution of image ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: July 7, 2015 |Policy Vote: PUB. S. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 17, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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 AB 1310 (Gatto) Page 1 of ? 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 AB 1310 (Gatto) Page 2 of ? 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.) AB 1310 (Gatto) Page 3 of ? 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. AB 1310 (Gatto) Page 4 of ? 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 AB 1310 (Gatto) Page 5 of ? 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 AB 1310 (Gatto) Page 6 of ? 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.