BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 676| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 676 Page 2 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 SB 676 Page 3 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. SB 676 Page 4 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 SB 676 Page 5 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 **** END ****