BILL ANALYSIS Ó
SB 676
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Date of Hearing: July 15, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 676
(Cannella) - As Amended July 2, 2015
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY:
This bill 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
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after a conviction is obtained. Specifically, this bill:
1)States that matter, as defined, 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)Adds disorderly conduct offenses to the list of offenses for
which a computer may be subject to forfeiture upon a criminal
conviction.
FISCAL EFFECT:
Minor absorbable costs.
COMMENTS:
1)Purpose. 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
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reposted by others."
2)Background. Current law 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. California law also 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. 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.
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.
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.
3)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
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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."
4)Related Legislation:
a) AB 32 (Waldron), pending in Senate Public Safety, tolls
the statute of limitations for illegally acquiring digital
images of a person that displays an intimate body part of a
person.
b) AB 1310 (Gatto), pending in Senate Appropriations,
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.
Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081
SB 676
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