BILL ANALYSIS Ó
AB 1310
Page 1
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, |
| | | | | |2015) |
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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