BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1310


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1310 (Gatto)


          As Amended  July 7, 2015


          Majority vote


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          |ASSEMBLY:  | 79-0 |(May 14, 2015) |SENATE: | 40-0 | (September 2,   |
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          |           |      |               |        |      |                 |
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          Original Committee Reference:  PUB. S.


          SUMMARY:  Expands jurisdiction for crimes where a person  
          intentionally distributes an image(s) of intimate body parts or  
          sexual acts of another person, were it was agreed that the  
          image(s) would remain private, causing emotional distress.  Also  
          called "revenge porn."  Allows law enforcement to use a search  
          warrant to get the contents of communications between a customer  
          and service provider.


          The Senate amendments limit the jurisdictional language of the  
          bill to crimes involving "revenge porn."


          EXISTING LAW:  



          1)Specifies that except as provided, when a public offense is  








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            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. 

          2)Allows jurisdiction of a criminal action for identity theft,  
            to include the county where the theft of the personal  
            identifying information occurred, the county in which the  
            victim resided at the time the offense was committed, or the  
            county where the information was used for an illegal purpose. 

          3) Specifies that if multiple offenses of unauthorized use of  
            personal identifying information, either all involving the  
            same defendant or defendants and the same personal identifying  
            information belonging to the one person, or all involving the  
            same defendant or defendants and the same scheme or  
            substantially similar activity, occur in multiple  
            jurisdictions, then any of those jurisdictions is a proper  
            jurisdiction for all of the offenses. 

          4)Allows jurisdiction to extend to all associated offenses  
            connected together in their commission to the underlying  
            identity theft offense or identity theft offenses. 

          5)Specifies that when charges alleging multiple offenses of  
            unauthorized use of personal identifying information occurring  
            in multiple territorial jurisdictions are filed in one county  
            pursuant to this section, the court shall hold a hearing to  
            consider whether the matter should proceed in the county of  
            filing, or whether one or more counts should be severed.  The  
            district attorney filing the complaint shall 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 that in determining whether all counts in the  
            complaint should be joined in one county for prosecution, the  
            court shall consider the location and complexity of the likely  
            evidence, where the majority of the offenses occurred, whether  
            or not the offenses involved substantially similar activity or  








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            the same scheme, the rights of the defendant and the people,  
            and the convenience of, or hardship to, the victim and  
            witnesses. 

          7)Two or more offenses connected together in their commission or  
            in the same class of crimes or offenses may be joined in one  
            accusatory pleading.  

          8)States that a provider of electronic communication service or  
            remote computing service, as specified, shall 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. 

          9)Specifies that a governmental entity receiving subscriber  
            records or information under this section is not required to  
            provide notice to a subscriber or customer. 

          10)Allows a court issuing a search warrant, as specified, on a  
            motion made promptly by the service provider, to quash or  
            modify the warrant if the information or records requested are  
            unusually voluminous in nature or compliance with the warrant  
            otherwise would cause an undue burden on the provider. 

          11)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  
            renewed request by the peace officer.

          AS PASSED BY THE ASSEMBLY, this bill:
          1)Expanded the jurisdiction of a criminal action for specified  
            conduct, including "revenge porn" and peeping with a recording  
            device, to include the county in which the offense occurred,  








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            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)Allowed 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.


          3)Authorized jurisdiction to extend to all associated offenses  
            connected together in their commission to the underlying  
            unauthorized distribution of an intimate image.


          4)Required 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)Required 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)Required 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.


          7)Required the court to hold a hearing on its own motion, or the  








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            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.


          8)Stated that a provider of electronic communication service or  
            remote computing service, as specified, shall 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,  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, as specified.


          9)Required that the search warrant 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.


          10)Specified that information obtained through the execution of  
            a search warrant pursuant to this section that is unrelated to  
            the objective of the warrant shall be sealed and not subject  
            to further review without an order from the court.


          11)Stated that a governmental entity receiving subscriber  
            records or information under this section is required to  
            provide notice to a subscriber or customer upon receipt of the  
            requested records.  This notification may be delayed by the  
            Court, in 90-day increments, upon showing that there is reason  
            to believe that notification of the existence of the search  








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            warrant may have an adverse result. 


          12)Stated that upon expiration of the period of delay of  
            notification, if any, the governmental entity shall provide  
            written notice, by regular mail or email, to the subscriber or  
            customer, a copy of the process or request together with  
            notice that:


             a)   Stated with reasonable specificity the nature of the law  
               enforcement inquiry; and
             b)   Informed such customer or subscriber 


             c)   That information maintained for such customer or  
               subscriber by the service provider named in such 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;


               i)     That notification of such customer or subscriber was  
                 delayed, if notice was delayed; and
               ii)    What court issued the order pursuant to which that  
                 delay was made; and


               iii)   A copy of the written inventory of the property  
                 taken that was provided to the court pursuant to Penal  
                 Code Section 1537.


          13)Provided that notice need not be provided if it would do any  
            of the following:
             a)   Endangering the life or physical safety of an  
               individual;
             b)   Flight from prosecution;


             c)   Destruction of or tampering with evidence;









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             d)   Intimidation of potential witnesses; or


             e)   Otherwise seriously jeopardizing an investigation or  
               unduly delaying a trial.


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee:


          1)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. 


          2)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. 


          COMMENTS:  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  








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          investigation of cyber exploitation crimes."


          Analysis Prepared by:                                             
                          David Billingsley / PUB. S. / (916) 319-3744   
          FN: 0001822