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.