BILL ANALYSIS Ó AB 1310 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1310 (Gatto) As Amended July 7, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: | 79-0 |(May 14, 2015) |SENATE: | 40-0 | (September 2, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 1310 Page 2 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 AB 1310 Page 3 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, AB 1310 Page 4 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 AB 1310 Page 5 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 AB 1310 Page 6 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; AB 1310 Page 7 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 AB 1310 Page 8 investigation of cyber exploitation crimes." Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0001822