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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