BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 676|
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                                   THIRD READING 


          Bill No:  SB 676
          Author:   Cannella (R)
          Amended:  5/5/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/28/15
           AYES:  Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SUBJECT:   Disorderly conduct:  invasion of privacy


          SOURCE:    Author


          DIGEST:   This bill requires forfeiture of a distributed image  
          and equipment used in the offense of distribution of a sexual  
          image that the distributor and the person depicted have agreed  
          or understood would remain private.   


          ANALYSIS:    Existing law includes a misdemeanor that is  
          committed under the following circumstances:

          1)The defendant electronically distributed an image of another  
            person's intimate body part, or an image of the person engaged  
            in specified sexual conduct.

          2)The defendant and the person depicted agreed or understood  
            that the image would remain private.

          3)The defendant knew or should have known that the person  








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            depicted experience serious emotional distress or humiliation.

          4)The person depicted did suffer serious emotional distress.

          5)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).)

          6)Provides that computer equipment used is a wide range of  
            crimes is subject to forfeiture.  The computer forfeiture law  
            includes a procedure through which an innocent security holder  
            in the equipment can redeem the property or receive  
            compensation equivalent the security interest.  (Pen. Code §  
            502.01.)

          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.

          Background
          
          This bill authorizes forfeiture of images that were distributed  
          in the commission of what is commonly called cyber-porn revenge.  
            Cyber-porn revenge is the distribution of a sexual image that  
          the person depicted in the image and the distributor have agreed  
          or understood shall remain private.  The image forfeiture  
          provision requires 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.  Arguably, once an image is  
          in the possession of a government entity, all copies of the  
          image are subject to forfeiture.

          However, 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.  Unless the image  
          provision applies to such entities, it will likely be  







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          ineffective; as one of the major harms of cyber-porn revenge is  
          that an image is essentially uncontrollable once it is released  
          onto the Internet.  Assuming the forfeiture provision applies to  
          all copies of the image, it could be very difficult to determine  
          if all of the images have been confiscated.  It is also unclear  
          what process the Attorney General, district attorney, city  
          attorney or county counsel would use to obtain the image or  
          images from a third party that has a copy of the image in  
          electronic form, or as a printed photograph or video.

          This bill also authorizes relatively broad forfeiture of  
          computer equipment used in cyber-porn revenge.  In contrast to  
          the provisions concerning images, it does appear that a criminal  
          conviction is required before computer or other electronic  
          equipment used in cyber-porn revenge is subject to forfeiture  
          pursuant to Penal Code Section 502.01.  While Section 502.01  
          does not explicitly state that a conviction is required, the  
          power to order forfeiture is vested in the "sentencing court,"  
          meaning the court in which the defendant was conviction.

          Section 502.01, subdivision (a)(1), can be read to mean that all  
          computer equipment, including a computer network, is subject to  
          forfeiture, regardless of whether the defendant owns the  
          property.  A third party that did not aid and abet the defendant  
          in committing the crime would argue that he, she or it (in the  
          case of a business) is not subject to the jurisdiction of the  
          court that sentenced the defendant.  However, property owned by  
          third parties, or as to which a third party has a security  
          interest, is commonly seized in drug asset forfeiture.  If such  
          property is seized in a forfeiture action under Section 502.01,  
          the innocent owner could be forced to appear in the forfeiture  
          action and assert the ownership interest of the person or entity  
          through a motion in redemption.  (Pen. Code § 502, subd. (c).)   
          Redeeming property or the value of the property is further  
          complicated by the fact that Section 502.01, (c), is phrased  
          only in terms of a security interest, not outright ownership.  A  
          person or entity that owns the property would likely argue that  
          if the defendant had no ownership or leasehold interest in the  
          property, the property is not subject to forfeiture.  The  
          determination of that issue is not clear, however.  

          In practice, computer forfeiture is an additional punishment,  
          not prevention of a future crime.  The convicted defendant could  
          easily obtain another computer.







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          It is likely that defendants convicted of cyber-porn revenge  
          will be placed on probation with equivalent conditions to the  
          forfeiture provisions in this bill.  The convicted defendant can  
          then be monitored on probation and his probation revoked if he  
          violates the conditions of probation.  It appears that the  
          forfeiture provisions in this bill will ensure that equipment  
          used in the crime, and at least some illicit distributed images,  
          will be forfeited upon the defendant's conviction, regardless of  
          whether or not the defendant is placed on probation.  

          Finally, this 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.  Arguably, similar  
          privacy interests are protected in all of the crimes defined in  
          subdivision (j) of Section 647.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified  5/19/15)


          Association for Los Angeles Deputy Sheriffs
          Association of Deputy District Attorneys
          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:   (Verified  5/19/15)


          American Civil Liberties Union









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          ARGUMENTS IN SUPPORT:     According to the author, "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 and the computer equipment used in  
          the crime are subject to forfeiture to law enforcement for  
          destruction."


           

          Prepared by: Jerome McGuire / PUB. S. / 
          5/20/15 9:28:30


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