BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 676 Hearing Date: April 28, 2015
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|Author: |Cannella |
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|Version: |April 20, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Disorderly Conduct: Invasion of Privacy
HISTORY
Source: Attorney General of California
Prior Legislation:SB 1255 (Cannella) Ch. 863, Stats. 2014
SB 255 (Cannella) Ch. 466 Stats. 2013
Support: Association of Deputy District Attorneys; Association
for Los Angeles Deputy Sheriffs; California District
Attorneys Association; California Police Chiefs
Association; California State Sheriffs' Association;
Crime Victims United of California; Los Angeles Police
Protective League; Peace Officers Research Association
of California; Riverside Sheriffs Association
Opposition:American Civil Liberties Union; California
Broadcasters Association; California Hospital
Association; California Medical Association
PURPOSE
The purpose of this bill is to 1) provide that any person who
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distributes an image of an intimate body part of an identifiable
person, or an image of an identifiable person engaged in a
specified sex act is guilty of a misdemeanor if the distributor
of the image "knew or should have known that the depicted person
had a reasonable expectation that the image would remain
private;"; and 2) allow or require forfeiture of the distributed
image and equipment used in the offense.
Existing law provides that every person who, with intent to
place another person in reasonable fear for his or her safety,
or the safety of the other person's immediate family, by means
of an electronic communication device, and without consent of
the other person, and for the purpose of causing that other
person unwanted physical contact, injury, or harassment, by a
third party, electronically distributes, publishes, e-mails,
hyperlinks, or makes available for downloading, personal
identifying information, including, but not limited to, a
digital image of another person, or an electronic message of a
harassing nature about another person, is guilty of a
misdemeanor punishable by up to one year in the county jail, by
a fine of not more than one thousand dollars ($1000), or by both
that fine and imprisonment. (Pen. Code § 653.2, subd. (a).)
Existing law defines the term "electronic communication device"
to include, but not be limited to telephones, cellular phones,
computers, Internet Web pages or sites, Internet phones, hybrid
cellular/Internet/wireless devices, personal digital assistants
(PDA), video recorders, fax machines, or pagers. "Electronic
communication" has the same meaning as the term is defined in
Section 2510 (12) of Title 18 of the United States Code. (Pen.
Code § 653.2, subd. (b).)
Existing law provides that a person who has "suffered
harassment" may seek a temporary restraining order and an
injunction to prevent such harassment. "Harassment" is defined
thus:
[U]nlawful violence, a credible threat of violence, or
a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would
cause a reasonable person to suffer substantial
emotional distress, and must actually cause
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substantial emotional distress to the plaintiff.
(Code. Civ. Proc. § 527.6.)
Existing law defines "obscene matter" as "matter, taken as a
whole, that to the average person, applying contemporary
statewide standards, appeals to the prurient interest, that,
taken as a whole, depicts or describes sexual conduct in a
patently offensive way, and that, taken as a whole, lacks
serious literary, artistic, political, or scientific value."
(Pen. Code § 311, subd. (a).)
Existing law includes a misdemeanor that is committed under the
following circumstances:
The defendant electronically distributed an image of
another person's intimate body part, or an image of the
person engaged in specified sexual conduct.
The defendant and the person depicted agreed or
understood that the image would remain private.
The defendant knew or should have known that the person
depicted experience serious emotional distress or
humiliation.
The person depicted did suffer serious emotional
distress.
This misdemeanor is punishable by imprisonment in a
county jail for up to one year, a fine of up to $1,000, or
both. (Pen. Code § 647, subd. (j)(4).)
Existing law defines an "intimate body part" as any portion of
the genitals, the anus, and in the case of a female, any portion
of the breasts below the areola. (Pen. Code § 647, subd.
(j)(4)(C).)
This bill provides that any person who distributes an image of
an intimate body part of an identifiable person, or an image of
an identifiable person engaged in a specified sex act, is guilty
of a misdemeanor if the distributor of the image "knew or should
have known that the depicted person had a reasonable expectation
that the image would remain private", knew or should have known
that the person depicted would suffer serious emotional
distress, and the depicted person suffered such emotional
distress.
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This bill provides that the crime does not apply if the
distribution was made in the course of a news account on a
matter of legitimate public concern.
<1>
This bill provides that the crime does not apply if the
distribution was made in the course of providing medical
services.<2>
This bill provides that an image distributed so as to violate
the ban on nonconsensual distribution of intimate body parts or
sexual activity shall be subject to court ordered forfeiture and
destruction.
This bill provides that a computer or telecommunications device
used in the crime of nonconsensual distribution of an image of
an intimate body part or sexual conduct is subject to
forfeiture. The property shall be given to the holder of a
security interest, to the victim for restitution and
"compensatory damages," to the prosecuting agency, specified
governmental entities or charitable organizations. The property
may be sold and the proceeds distributed in a manner similar or
equivalent to distribution of the actual property.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
--------------------------
<1> The emotional distress element is in existing law.
<2> The exceptions in current law for specified distributions of
sexual images are not changed by this bill.
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141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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Current law applies a misdemeanor charge to the
distribution of intimate images that were shared in a
private agreement. However, those images, as the
property of the distributing party, remain with the
offender even after conviction. This bill would state
that upon conviction those images are subject to
forfeiture to law enforcement for destruction.
2.The Bill Arguably Creates a Form of Intellectual Property
Right Under Which a Person Controls Distribution of any Image
of his or her Intimate Body Part
The essence of the crime defined by this bill is distributing a
sexual image of another person under circumstances where the
defendant knew or should have known that the depicted person had
a reasonable expectation that the image would remain private and
the defendant knew or should have known that the depicted person
would be distressed. The bill does not state how such a privacy
interest would be created. The bill could be interpreted to
mean the bill creates a right for one to control images of one's
intimate body parts and enforce that right through a criminal
penalty. A right to control one's image appears to be very
close to copyright protection. Federal law preempts state law
in the creation and enforcement of copyright. (17 U.S.C. §§
101-810.)
3. Vagueness and Related Issues
Both the United States and California Constitutions guarantee
that no person shall be deprived of life, liberty, or property
without due process of law. Due process requires "a reasonable
degree of certainty in legislation, especially in the criminal
law ?" (In re Newbern (1960) 53 Cal.2d
786, 792.) "[A] penal statute must define the criminal offense
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
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encourage arbitrary and discriminatory enforcement." (Kolender
v. Lawson (1983) 461 U.S. 352, 357.)
It is not clear how a defendant charged with the crime defined
by this bill would have known, or should have known, that a
person depicted in a sexual image had a reasonable expectation
of privacy in the image. Specifically, how would a potential
defendant know if or determine that someone depicted in a sexual
image had an expectation that the image would remain private?
How would a potential defendant know that the expectation was
reasonable? How would the defendant know, or why should the
defendant know, that distribution of the image would cause any
emotional distress, let alone serious emotional distress.
In very many cases, the defendant might not know who the
depicted person is. He might well have no way to contact the
person. A person would have to take the risk that he would be
convicted of a crime each time he distributed a sexual image, as
there would be no certain or clear way to determine the depicted
person's expectation or emotional state if the expectation was
violated. This uncertainty also raises issues concerning the
chilling of speech, as discussed below.
Further, it is not clear that the person depicted need be in
California. The crime appears to be based on the defendant's
conduct in California, regardless of where the depicted person
lived.
4. First Amendment Issues Generally
"If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable." (Texas v. Johnson (1989) 491
U.S. 397, 414.) Unless a particularly narrow exception applies,
protection of expression under the First Amendment is not
limited to certain subjects or ideas. A restriction on the
"content" of expression, as distinguished from the time, place
and manner of expressions is presumptively invalid. A
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content-based restriction on expressive conduct is subject to
"strict scrutiny" and must promote a "compelling state interest"
by the "least restrictive means" to achieve the compelling
interest. (Sable Communications v. FCC (1989) 492 U.S. 115,
126.)
A content-based restriction on expression will be struck down as
invalid on its face if it prohibits clearly protected speech, in
addition to conduct that may validly be prohibited. Such a law
is said to be unconstitutionally "overbroad." (U.S. v. Stevens
(2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal
statute that criminalized the sale or possession of "depictions
of animal cruelty," in order to prohibit fetishistic "crush
videos" of the killing of animals for sexual gratification.
Stevens was prosecuted for distribution of videos of dog fights
and the government argued that the law was limited in intent to
such depictions. The Supreme Court found that the statute was
overbroad in that it might reach videos depicting hunting,
arguably inhumane treatment of livestock, or activities legal in
some jurisdictions but not others, such as cockfighting. (Id,
at pp. 1588-1592.) The fact that speech is disturbing cannot be
the determinant of whether it can be restricted or not.
In Reno v ACLU (1997) 521 U.S. 844, the United States Supreme
Court applied First Amendment law and principles to the
Internet. The case specifically concerned the constitutionality
of the major federal law designed to protect or keep minors from
indecent material on the Internet. The court held:
We are persuaded that the CDA lacks the precision that
the First Amendment requires when a statute regulates
the content of speech. In order to deny minors access
to potentially harmful speech, the CDA effectively
suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable
if less restrictive alternatives would be at least as
effective in achieving the legitimate purpose that the
statute was enacted to serve.
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In evaluating the free speech rights of adults, we
have made it perfectly clear that [s]exual expression
which is indecent but not obscene is protected by the
First Amendment. [W]here obscenity is not involved,
we have consistently held that the fact that protected
speech may be offensive to some does not justify its
suppression. Indeed, Pacifica itself admonished that
"the fact that society may find speech offensive is
not a sufficient reason for suppressing it. (Id., at
pp. 874-875; internal quotations and citations
omitted)
Distribution of images - including sexual images - is thus
expressive speech protected under the First Amendment. The
cases cited above thus provide that restrictions based on the
content of this expressive conduct are presumptively invalid and
must be justified, if at all, by a competing state interest.
The interest advanced or protected by this bill is a privacy
right in sexual images - a privacy right perhaps created in this
bill - that is violated where the distributor knows or should
know the depicted person reasonably expected that the image
would remain private and the depicted person suffers serious
emotional distress.
The bill appears to confer a per-se privacy interest for any
person concerning sexual images of that person that could
outweigh First Amendment protections. Under existing law, the
person depicted and the distributor created a privacy
expectation by agreeing or understanding that the image will
remain private. This bill eliminates that provision. However,
unlike existing law, this bill does not provide how a privacy
interest would be created. The privacy interest is not
specifically or explicitly stated, but is obviously implied by
the element that the defendant knew or should have known that
the person depicted had a reasonably expectation that the image
shall remain private. As noted above, it can be argued that
this bill would have a chilling effect on protected speech.
5. First Amendment Challenges Rejected in Cases Where Private
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Sexual Images Were Used to Stalk and Harass the Victim
There have been statements in stalking and harassment cases that
distribution of so-called cyber revenge porn is not protected by
the First Amendment. However, in these cases the distribution
of the images was criminal because it was the method by which
the defendant stalked and harassed the victim. As such, the
"speech" could not be separated from the harassing conduct so as
to be protected by the First Amendment. "Osinger's
as-applied<3> challenge is similarly unavailing given his intent
to harass and intimidate a private individual by circulating
sexually explicit publications that were never in the public
domain." (U.S. v. Osinger (9th Cir. 2014) 753 F. 3d 939,
italics added/) Any findings in these cases that private sexual
images are per se not protected speech appear to be dicta - a
statement of finding not essential to the decision and not of
precedential value.
6. This Bill Could be Interpreted as an Attempt to Define a
new Form of Obscenity or a Special Form of Unprotected
Sexually Oriented Expression
Material is obscene if "applying contemporary statewide
standards [it] appeals to the prurient interest, that, taken as
a whole, depicts or describes sexual conduct in a patently
offensive way, and that, taken as a whole, lacks serious
literary, artistic, political, or scientific value." (Pen. Code
§ 311, subd. (a).) Obscenity prosecutions are exceedingly rare,
if not essentially unknown.
This bill concerns sexual images that are distributed in
violation of a "reasonable" privacy interest - the origin of
which is not clear. It can be inferred from context that a
person would have a reasonable expectation of privacy in any
sexual image of himself or herself, unless the depicted person
---------------------------
<3> "As applied" refers to an argument that a law is not invalid
on its face - the stalking statute in Osinger - but that
application of the law to the defendant's conduct is
unconstitutional.
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distributed the image without limitation. It could be argued
that this bill sets a standard that distribution of sexual
images in violation of this reasonable expectation is obscene,
as patently offensive and lacking any public interest or value.
More specifically, it could be argued that distribution of such
images is humiliating of and degrading to women, as women are
typically the subjects of such images and men are the
distributors. There is no public interest in solely private
image, so distributing such an image without consent should not
be protected speech and the harm it causes should be punished
criminally.<4> This is not inconsistent with arguments on this
issue. If so interpreted, the bill would arguably set a novel
standard.
However, in this regard it must be noted that some of the most
prominent proponents of banning so-called revenge porn have
stressed that such laws must be limited to specific
circumstances where a privacy interest was intentionally
violated. This bill creates a much more general standard. Noted
activist and law professor Danielle Citron has concluded:
Some object to criminalizing invasions of sexual
privacy because free speech will be chilled. That's
why it is crucial to craft narrow statutes that only
punish individuals who knowingly and maliciously
invade another's privacy and trust. Other features of
anti-revenge porn laws can ensure that defendants have
clear notice about what constitutes criminal activity
and exclude innocent behavior and images related to
matters of public interest. (Italics added.)
Another way to understand the constitutionality of
revenge porn statutes is through the lens of
confidentiality law ?[C]onfidentiality regulations are
less troubling from a First Amendment perspective
because they penalize the breach of an assumed or
implied duty rather than the injury caused by the
publication of words. Instead of prohibiting a certain
kind of speech, confidentiality law enforces express
----------------------
<4> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2368946
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or implied promises and shared expectations. <5>
It should be noted that there is no explicit right of privacy
under the United States Constitution. The California
Constitution includes an explicit right to privacy. (Art. I, §
1.) The "penumbras" of specific rights in the United States
Constitution include a right to privacy for matters relating to
family and procreation. (Griswold v. Connecticut ( 1965) 381
US. 479, 481-486; Roe v. Wade (1973) 410 U.S. 113.) The United
States Supreme Court has not clearly described a more general
right to privacy, except as is created by the Fourth Amendment
right to be free from unreasonable searches and seizures.
(People v. Gonzales, supra, 56 Cal.4th535, 384.)
Assuming that the dissemination of private images with the
intent to cause humiliation can be criminally prohibited, it can
be argued that there is some public interest in, or at least
great curiosity about, otherwise private sexual images. It
appears to be self-evident that the public is interested in the
sexual practices, sexual characteristics and sexual appearance
of others, regardless of whether advocates of banning
non-consensual distribution of private sexual images would
describe the interest or curiosity as a "public interest," or
whether distributing private images with intent to humiliate can
be criminalized. It was reported in a 2011 Forbes article that
13% of Internet searches were for sexual content and porn
websites account for 4% of the total.<6> Huffington post has
reported that a Website called "Homegrown Video" catalogued all
content submitted to the site for six months in 2013. The
amateur pornography received by the site was uploaded from all
across the United States, including 1/3 of the total from
conservative southern states. In the conservative states, women
uploaded 57% of the amateur content. Equivalent data was
reported in a similar study the site "PornHub."
Academic researchers would very likely have a great interest in
photographs and other images that display or reveal the sexual
practices in which people engage, regardless of what they might
report in surveys or interviews. The Kinsey report and the
research of Masters and Johnson appear to reflect such academic
---------------------------
<5>
http://www.forbes.com/sites/daniellecitron/2014/04/18/debunking-t
he-first-amendment-myths-surrounding-revenge-porn-laws/
<6>
http://www.forbes.com/sites/julieruvolo/2011/09/07/how-much-of-th
e-internet-is-actually-for-porn/
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interest and curiosity. The public, not just other academics,
were intensely interested in the Kinsey and Masters and Johnson
studies. Those research projects became cultural phenomena.
7. Political Speech and Related Matters
Courts have long stated that political speech and speech
concerning public issues are entitled to great protection under
the First Amendment. (Burson v. Freeman (1992) 504 U.S. 191,
Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S.
37, 45.) Political speech can be harsh, and one could conclude
that political speech may be intended to humiliate the target of
the communication or expressive conduct. The Weiner incident is
one example. Anthony Wiener posted a semi-nude picture of
himself on his public Twitter account. Although he quickly
removed the images, political activists captured the images and
re-posted them. Other images Weiner had sent to a woman in
Texas were reposted on the Internet. False identities were used
by activists to target Weiner. Weiner certainly did not
authorize or consent to others, including political activist,
reposting the images. Weiner expected the images to remain
private and appears to have experienced emotional distress
through the release of the images. Many of the persons who
captured and reposted the images of Weiner could be described as
having an intent to humiliate Wiener and cause him emotional
distress.
8. Possible Extension to such Non-Consensual Distribution of
Humiliating Images that are not Sexual and Equal Protection
Issues
This bill concerns the use of sexual images to humiliate the
person depicted. However, the bill could apply in other
contexts, such as where the image is distributed with the intent
to humiliate a person because he or she is obese, or whose
appearance or depicted conduct could otherwise be subject to the
same or greater level of ridicule than a sexual image. For
example, an image of a person who has overdosed on a drug or
become extremely intoxicated and vomited on himself or herself
would likely be more humiliating than an unclothed image of the
person.
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Regulation of private sexual images on the basis that such
images have no legitimate interest to the public or academic
researchers would appear to open the door to courts weighing the
validity of a wide range of images or descriptions of other
private conduct.<7> That is, if a prosecutor can argue that an
image or description of a person is solely of interest to that
person and those to whom the person revealed the image or
description, distribution of the material could be prohibited as
not protected by the First Amendment.
Criminalizing distribution of an image based on its sexual
nature, while not penalizing distribution of other images, thus
conceivably raises equal protection issues based on the banning
of private sexual images, but no other humiliating images.
9. Civil Law Remedies for Intentional Infliction of Emotional
Distress and First Amendment Protections
Civil law includes the tort (wrong against a private person or
entity) of intentional infliction of emotional distress.
Intentional infliction of emotional distress involves extreme
and outrageous conduct by the defendant that causes the
plaintiff severe or extreme emotional distress. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1050-1051.) Nevertheless, even speech
intended to create substantial emotional distress may be
protected by the First Amendment, particularly where the subject
of the speech concerns a public issue. Further, what
constitutes a matter of public concern is not well defined.
(Snyder v. Phelps (2011) 131 S. Ct. 1207, 1215-1216; Hustler
Magazine v. Falwell (1988) 108 S. Ct. 876.)
10. Obtaining Sexual Images Through Illegal Computer Hacking
The most infamous purveyor of non-consensual personal sexual
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<7> Obscenity is not limited to images, it can include writings.
Child pornography is limited to images of actual minors. (Pen.
Code § 311, subds. (b) and (h).
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images on the Internet is Hunter Moore. Moore ran a website on
which he and others posted nude photos that were often described
as "revenge porn," because posters were often men eager to
humiliate former partners. Moore went far beyond simply posting
images provided to him by others. He employed a man named
Charles Evens to hack into e-mail accounts to obtain the images.
Moore and Evens recently pleaded guilty in federal court to
computer hacking crimes and identity theft.<8>
In January of 2012, the topless "selfie" photo of Kayla Laws
appeared on the Moore's site. Moore had hacked Laws' e-mail
account to obtain the image. Laws had taken the photo in
October, 2011 and never shared it with anyone. Kayla Laws'
mother Charlotte Laws demanded that Moore take down Kayla's
photo. When he refused, she contacted other women whose images
had appeared on Moore's site and convinced the FBI to open an
investigation. The investigation revealed the computer hacking
that Moore and Evens had done to obtain many images.<9>
There have been numerous other instances of stolen images being
distributed through the Internet. The most notable recent
instances involved actors Jennifer Lawrence, Kristen Dunst and
Kate Upton. There were reports and speculation that the Apple
iCloud accounts had been accessed. In 2011, a Florida man was
sentenced to a term of 10 years for hacking the e-mail accounts
of actors Scarlett Johansson and Mila Kunis, and singer/actor
Christina Aguilera.<10>
---------------------------
<8>
http://www.nytimes.com/aponline/2015/02/18/us/ap-us-revenge-porn.
html
<9>
http://www.newyorker.com/tech/elements/the-downfall-of-the-most-h
ated-man-on-the-internet
<10>
http://www.cnn.com/2014/09/01/showbiz/jennifer-lawrence-photos/
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In addition to hacking issues, using the images of actors and
other celebrities can constitute a violation of a celebrity's
copyright or publicity rights. Under California law an actor,
singer or other celebrity generally has a right to control and
gain from the commercial value of his or her image, voice and
other characteristics. (Cal. Civ. Code § 3344.1.)
11. Forfeiture and Confiscation Issues
This bill authorizes forfeiture of equipment and property used
in non-consensual distribution of intimate images. The bill
also authorizes confiscation of offending images. How could one
determine if all of the images have been confiscated? One of
the major harms of cyber revenge is that the image is
uncontrollable. In practice, computer forfeiture is an
additional punishment, not prevention of a future crime. The
convicted defendant could easily obtain another computer.
The bill authorizes forfeiture of material "obtained or
distributed in violation of" the numerous crimes defined in
subdivision (j) of Penal Code Section 647. Some of these crimes
involve window-peeping, concealed recording of the naked body of
an identifiable person, distributing a sexual image that the
person depicted and the distributor have agreed would remain
private, and the crime defined by this bill. The forfeiture
provision further provides that the image be "in the possession
of" a specified government entity. It thus appears that the
image was likely seized in a criminal investigation. However,
there appears to be no requirement that a prosecution have been
initiated or a conviction obtained. The actual images can also
be found on myriad computers and servers, including those of an
Internet service provider or an entity such as Facebook, Twitter
or Tumblr.
It appears that better results would flow from putting the
defendant on probation with the condition that he destroy all
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images used in the crime and that he not obtain others. He
could be monitored on probation and his probation revoked if he
violated probation conditions.
COULD A DEFENDANT PLACED ON PROBATION BE MONITORED TO ENSURE
COMPLIANCE WITH ORDERS THAT HE DESTROY IMPROPERLY DISTRIBUTED
IMAGES AND THAT HE NOT USE ELECTRONIC EQUIPMENT IMROPERLY?
-- END -