BILL ANALYSIS Ó
SB 676
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Date of Hearing: June 30, 2015
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
676 (Cannella) - As Amended May 5, 2015
As Proposed to be Amended in Committee
SUMMARY: Creates a process for pre-conviction forfeiture and
destruction of images which are the subject of disorderly
conduct cases, and allows computers and electronic devices used
in the commission of those crimes to be subject to forfeiture
after a conviction is obtained. Specifically, this bill:
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1)States that matter obtained or distributed in violation of
specified disorderly conduct offenses, including "revenge
porn," and which is in the possession of a government official
or agency is subject to forfeiture.
2)Allows the Attorney General, district attorney, county
counsel, or city attorney to initiate a forfeiture petition
filed in the superior court in the county in which the matter
is located.
3)Requires the prosecutor to service notice of the petition upon
all individual who have an interest in the property.
4)Allows a person claiming interest in the property to file a
verified claim stating an interest in the property.
5)States that the burden of proof is on the petitioner to prove
beyond a reasonable doubt that matter is subject to forfeiture
under this section.
6)Provides that a criminal conviction is not necessary prior to
the entry of an order for the destruction of matter under this
section.
7)States that the destruction of the property may be carried out
by a police or sheriff's department or the California
Department of Justice, but that the court must specify which
agency is responsible for the destruction.
8)Defines "matter" for purposes of these forfeiture proceedings
as "any picture, photograph, image, motion picture, video
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tape, film, film strip, negative, slide, photocopy, or other
pictorial representation, recording, or electrical
reproduction." "Matter" also means any data storage media that
contains the image at issue, but does not include the
computer, camera, telecommunication or electronic device,
unless the matter consists solely of electronic information
stored on a device that cannot be altered or erased.
9)Authorizes the court to require the petitioner to demonstrate
that the petition covers no more property than necessary to
remove possession of the offending matter.
10)States that it is a defense to a forfeiture proceeding that
the matter seized was lawfully possessed in aid of legitimate
scientific or educational purposes.
11)Adds disorderly conduct offenses to the list of offenses for
which a computer may be subject to forfeiture upon a criminal
conviction.
EXISTING LAW:
1)Authorizes pre-conviction forfeiture and destruction of matter
that depicts persons under the age of 18 years personally
engaging in or simulating sexual conduct when that matter is
in the possession of a government entity. (Pen. Code, §
312.3.)
2)Defines "matter" as "any book, magazine, newspaper, or other
printed or written material or any picture, drawing,
photograph, motion picture, or other pictorial representation,
or any statue or other figure, or any recording, transcription
or mechanical, chemical or electrical reproduction, or any
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other articles, equipment, machines, or materials." It also
means "any representation of information, data, or image,
including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser
disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated
equipment or any other computer-generated image that contains
or incorporates in any manner any film or filmstrip." (Pen.
Code, § 312.3, subd. (h).)
3)Authorizes post-conviction forfeiture of computers and
telecommunications equipment used to commit specified computer
crimes, including child pornography. (Pen. Code, § 502.01.)
4)Requires the prosecution to prove by a preponderance of the
evidence that the computer was used in the commission of the
crime. (Pen. Code, § 502.01, subd. (b).)
5)Prohibits the return of seized property to an individual with
a valid interest in the property if that person knew or should
have known that the property was used in the commission of
specified offenses relating to obscene matter or child
pornography, and all of the offenses for which forfeiture may
be ordered. (Pen. Code, § 502.01, subd. (c)(3).)
6)Provides that if a minor uses a computer or telecommunication
device owned by parents or guardians to commit a computer
crime for which forfeiture is allowed, the parent or guardian
can prevent forfeiture by affirming that the minor shall not
have access to any such equipment for two years. (Pen. Code,
§ 502.01, subd. (e)(3).)
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7)Gives the court discretion to deny forfeiture when the court
finds that the perpetrator is not likely to use the property
otherwise subject to forfeiture to commit future illegal acts.
(Pen. Code, § 502.01, subd. (f).)
8)Provides that any person who intentionally distributes the
image of the intimate body part or parts of another
identifiable person, or an image of the person depicted
engaged in a sexual act, under circumstances in which the
persons agree or understand that the image shall remain
private, the person distributing the image knows or should
know that distribution of the image will cause serious
emotional distress, and the person depicted suffers that
distress, is guilty of a misdemeanor. (Pen. Code, § 647,
subd. (j)(4)(A).)
9)Makes it a misdemeanor for any person who looks through a hole
or opening, into, or otherwise views, by means of any
instrumentality, including, but not limited to, a periscope,
telescope, binoculars, camera, motion picture camera,
camcorder, or mobile phone, the interior of a bedroom,
bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside.
(Pen. Code, § 647, subd. (j)(1).)
10)Makes it a misdemeanor for any person to use a device to
secretly videotape or record by electronic means another
identifiable person under or through his or her clothing, for
the purpose of viewing that person's body or undergarments
without consent and under circumstances in which that person
has a reasonable expectation of privacy, if the perpetrator
commits the act with a prurient intent. (Pen. Code, § 647,
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subd. (j)(2).)
11)Makes it a misdemeanor for any person who uses a concealed
instrumentality to secretly videotape or record another person
who is in a state of full or partial undress, for the purpose
of viewing that person's body or undergarments without consent
while that person is in a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy
of that individual. (Pen. Code, § 647, subd. (j)(3).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Assuming they
were not stolen, cyber exploitation images can remain the
property of the distributing offender even after conviction.
Without the ability to seek forfeiture and destruction of
cyber exploitation images, it is difficult to remove the
images from the Internet when they are reposted, even
following a successful prosecution of the original poster.
Similar to existing child pornography statute, this bill would
state that upon conviction those images are subject to
forfeiture to law enforcement for destruction. It would also
allow a prosecuting agency to file a petition for forfeiture
of matter already found to be cyber exploitation images that
have been reposted by others."
2)Current Forfeiture Provisions for Computer Crimes: Asset
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forfeiture is the process by which the government confiscates
money and/or property that may represent proceeds of a crime
or property used or involved in the commission of a crime.
The role of asset forfeiture is to remove the tools of the
trade from a criminal, to deprive the wrongdoer of the
proceeds of the crime, and to recover property that may be
used to compensate victims.
Property that the wrongdoer would not have had but for the crime
can be forfeited as proceeds. For example, cash acquired
through an unlawful activity such as drug dealing can be
forfeited under the proceeds theory. Property used to commit
the crime is called facilitating property. For example, a
house where drugs are manufactured can be forfeited under the
facilitating theory.
California law authorizes the forfeiture of computer equipment
and related software when a defendant is convicted of
specified computer crimes, including computer access crimes,
identity theft, forgeries and frauds, possession and
distribution of child pornography, criminal threats, and
stalking. (Pen. Code, § 502.01, subd. (a)(1).) This law is
meant to take away the tools of the trade. The property that
is forfeitable is limited to specified telecommunications
equipment, a computer, computer system, network, software, or
data residing on it. (Pen. Code, § 502.01, subd. (a)(1).)
A criminal conviction is required, and the prosecutor must
establish that the property is subject to forfeiture by a
preponderance of the evidence. (Pen. Code, § 502.01, subd.
(b).) After the prosecution files a petition for forfeiture,
the sentencing court sets a hearing date to determine whether
the computer equipment is forfeitable. (Ibid.) The
computer-forfeiture law includes a procedure by which an
innocent person claiming an interest in the equipment can
retrieve the property or receive compensation equivalent to
the security interest. (Pen. Code, § 502.01, subds. (c) &
(d).) If the court determines the defendant's property is
forfeitable, then the victim may receive the property as full
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or part restitution, if the victim so chooses. Alternatively,
the court may distribute the property to the prosecuting
agency or another public agency or non-profit organization.
(Pen. Code, § 502.01, subd. (g).)
This bill authorizes computer forfeiture upon conviction of
specified disorderly conduct offenses, including revenge porn
and making a concealed recording of a person in a state of
undress or in his or her undergarments in an area where that
person has a reasonable expectation of privacy under the
theory that the electronic equipment is property which
facilitated the commission of the crime.
It should be noted, however, that in contrast to the forfeiture
of money, a house, or a car, arguably computer forfeiture is
not a deterrent for future crime, because many defendants can
easily obtain another electronic device.
3)Confiscation of Images Before Conviction: As with child
pornography cases, this bill provides a mechanism whereby a
government agency can petition the court for the forfeiture of
the offending image and its destruction before the defendant
has been convicted. The rationale is to prevent the defendant
from further distributing the image at issue.
As proposed to be amended, the matter that can be forfeited and
destroyed includes "any picture, photograph, image, motion
picture, video tape, film, film strip, negative, slide,
photocopy, or other pictorial representation, recording, or
electrical reproduction." It also includes "any data storage
media that contains the image at issue, but does not include
the computer, camera, telecommunication or electronic device,
unless the matter consists solely of electronic information
stored on a device that cannot be altered or erased."
Additionally, before granting an order for destruction, the
court may require the petitioner to establish that the
petition covers no more property than necessary to remove
possession of the offending matter. This language seeks to
ensure that, whenever possible, the defendant's electronic
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devices are not forfeited before conviction in an effort to
delete the images in question.
4)"Cyber Revenge" or "Revenge Porn": "Revenge porn" has
received national attention in recent years, with legislation
being proposed throughout the various states to address this
unfortunate phenomenon. The National Conference of State
Legislatures (NCSL), describes "revenge porn" as "the posting
of nude or sexually explicit photographs or videos of people
online without their consent, even if the photograph itself
was taken with consent. A spurned spouse, girlfriend or
boyfriend may get revenge by uploading photographs to
websites, many of which are set up specifically for these
kinds of photos or videos. The victim's name, address and
links to social media profiles are often included with the
images, and some websites charge a fee to have the materials
removed." (See NCSL, State "Revenge Porn" Legislation
< http://www.ncsl.org/research/telecommunications-and-informatio
n-technology/state-revenge-porn-legislation.aspx >.)
The California Department of Justice recently prosecuted two
cases involving this conduct. In February 2015, Kevin
Bollaert, who ran the website ugotposted.com, was convicted of
6 counts of extortion and 21 counts of identity theft for
posting sexually-explicit photos online and demanding money
from victims to remove the images. A court sentenced him to
18 years in prison. The case was the first criminal
prosecution of a cyber-exploitation website operator in the
country. (See Department of Justice April 3, 2015 press
release,
https://oag.ca.gov/news/press-releases/attorney-general-kamala
-d-harris-announces-three-year-sentence-cyber >.)
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Notably, the Department of Justice did not use the new "revenge
porn" statute, which does not apply to Website operators; but
rather opted to prosecute using existing felony crimes. A
spokesperson for Attorney General Harris who was quoted in
Time Magazine, said this approach "one about landing 'a big
fish, not all the little fish.' when it comes to revenge
porn."
(< http://nation.time.com/2013/12/10/a-new-strategy-for-prosecut
ing-revenge-porn />.) It is unclear whether individuals who
anonymously upload photos will also face prosecutions for
disorderly conduct.
5)Obtaining Sexual Images Through Illegal Computer Hacking:
"Revenge porn" can also refer to the actions of a person who
hacks into a personal computer and then distributes or posts
on the Internet the photographs or videos.
There have been instances of stolen images of celebrities
being distributed through the Internet. Notable recent
incidents involved actors Jennifer Lawrence, Kristen Dunst,
and Kate Upton. Technology experts speculate that the hacker
may have exploited a flaw in Apple's Find My iPhone service to
access the celebrities' iCloud storage.
(< http://www.cnn.com/2014/09/02/showbiz/hacked-nude-photos-five
-things />.) While this conduct could not be prosecuted as
extortion, it can be prosecuted as illegal access to take or
use data under Penal Code section 502, subdivision (c).
The provisions of this bill apply only to violations of Penal
Code section 647, subdivision (j), disorderly conduct, and so
would not apply to the situation described above. However, as
a violation of unauthorized access to computer data (Pen.
Code, 502, subd. (c)), current computer forfeiture provisions
apply to this conduct. (See Pen. Code, §§ 502, subd. (g) &
502.01, subd. (a)(1).)
6)Other Practical Considerations: It should be noted that the
offending images might also be found on the computers and
servers of a third party, such as in Internet service provider
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or a Website such as Facebook. In some cases Internet service
providers and others who receive such images will voluntarily
remove and/or destroy them. For example, Facebook's policy
regarding Community Sexual Violence and Exploitation states,
"To protect victims and survivors, we also remove photographs
or videos depicting incidents of sexual violence and images
shared in revenge or without permissions from the people in
the images."
(< https://www.facebook.com/communitystandards# >.) But there
may be situations in which a court order is required for
removal of the images. There is currently no provision that
would permit a court to order the removal of non-consensual
intimate images from the Internet.
7)Argument in Support: According to the California Department
of Justice, the sponsor of this bill, "Cyber exploitation is
not currently included in the list of computer crimes subject
to forfeiture, and there is currently no effective mechanism
for removing images that have been found to be in violation of
cyber exploitation laws short of obtaining an entirely new
criminal conviction for each additional distributor.
"SB 676 addresses this problem by first adding cyber
exploitation to the list of computer crimes eligible for
forfeiture following a conviction. Second, the bill provides
law enforcement with a process for seeking a court order to
remove and destroy reposted cyber exploitation images. This
procedure, which is currently available for images depicting
minors engaged in sexual activity, includes a number of due
process safeguards: a prosecuting agency must first provide
the individual hosting the images with thirty days notice,
during which time the agency's right to seek forfeiture may be
contested in superior court. In cases where the distributor
does file a claim of legitimate interest in hosting the
images, the burden is on the prosecuting agency to prove that
the images fall within Section 647's definition of cyber
exploitation. When the agency prevails or if the distributor
does not challenge the petition, an order for destruction of
the image may then be issued by the court and the destruction
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may be carried out by local law enforcement or the state
Department of Justice."
8)Related Legislation:
a) AB 32 (Waldron) tolls the statute of limitations for
illegally acquiring digital images of a person that display
an intimate body part of a person. AB 32 is pending
hearing in the Senate Public Safety Committee.
b) AB 1310 (Gatto) expands the jurisdiction of a criminal
action for specified conduct, including "revenge porn" to
include the county in which the offense occurred, 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. AB 1310 is pending
hearing in the Senate Public Safety Committee.
9)Prior Legislation:
a) SB 1255 (Canella), Chapter 863, Statutes of 2014,
expanded the offense of revenge porn to include to include
what is commonly known as a "selfie," an image someone
takes of himself or herself.
b) AB 2643 (Wieckowski), Chapter 859, Statutes of 2014,
created a private right of action against a person who
intentionally or recklessly distributes a sexually explicit
photograph or other image or recording of another person
without the consent of that person.
c) SB 255 (Canella), Chapter 466, Statutes of 2013, created
a new misdemeanor for the distribution of an image of an
identifiable person's intimate body parts which had been
taken with an understanding that the image would remain
private, commonly referred to as "revenge porn."
d) AB 1499 (Liu), Chapter 751, Statutes of 2004, added
child pornography offenses to the list of offenses for
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which a computer may be subject to forfeiture.
REGISTERED SUPPORT / OPPOSITION:
Support
California Department of Justice (Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California District Attorneys Association
California Police Chiefs Association
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association
Crime Victims United of California
Long Beach Police Officers Association
Los Angeles Police Protective League
Los Angeles County Profession Peace Officers Association
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
Opposition
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None
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744