BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 676|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
UNFINISHED BUSINESS
Bill No: SB 676
Author: Cannella (R)
Amended: 7/2/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE FLOOR: 38-0, 5/22/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Gaines, Galgiani, Hall, Hancock, Hernandez,
Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu,
McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell,
Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak,
Wieckowski, Wolk
NO VOTE RECORDED: Fuller
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 79-0, 8/20/15 (Consent) - See last page for
vote
SUBJECT: Disorderly conduct: invasion of privacy
SOURCE: Office of the Attorney General
DIGEST: This bill requires pre-conviction forfeiture of an
image and post-conviction equipment involved in the following
offenses: distribution of a sexual image that the distributor
and the person depicted have agreed or understood would remain
private, surreptitious recording or viewing of a person in a
place where the person has a reasonable expectation of privacy,
and violating another person's privacy rights by secretly
recording the body or undergarments of an identifiable person.
SB 676
Page 2
Assembly Amendments limit items subject to forfeiture in
cyber-porn revenge cases to the image used in the crime and a
data storage device on which the image is found. The computer,
camera or electronic device on which the image was stored is
only subject to forfeiture if the image cannot be erased.
ANALYSIS: Existing law includes a number of misdemeanor crimes
concerning violation of a person's right to privacy by
surreptitious viewing or recording, generally for sexual
gratification. One such crime, commonly described as cyber-porn
revenge, 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
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:
1)Authorizes, upon conviction, forfeiture of computer or
electronic equipment used in any of the crimes of
non-consensual distribution of an intimate image,
surreptitious recording or viewing of a person in a place
SB 676
Page 3
where the person has a reasonable expectation of privacy, and
violating another person's privacy rights by secretly
recording the body or undergarments of an identifiable person.
2)Authorizes pre-conviction forfeiture of an image involved in
any of the crimes of non-consensual distribution of an
intimate image, surreptitious recording or viewing of a person
in a place where the person has a reasonable expectation of
privacy, and violating another person's privacy rights by
secretly recording the body or undergarments of an
identifiable person. A data storage device on which the image
is held is subject to pre-conviction forfeiture, but the
computer, camera or electronic device on which the image is
stored cannot be forfeited unless the image consists solely of
electronic information stored on a device that cannot be
altered or erased.
Background
This bill authorizes pre-conviction forfeiture of images that
were distributed in the commission of what is commonly called
cyber-porn revenge and a number of other invasion of privacy
crimes that are typically sexually motivated. 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 other offenses generally
involve images obtained in violation of a person's right to
privacy because of the place where the image was taken or where
the image is of the person's body underneath outer clothing.
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 has 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 involved in these offenses 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 ineffective; as one of the major harms of
SB 676
Page 4
cyber-porn revenge and other sexual violation of privacy crimes
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 post-conviction
forfeiture of computer equipment used in cyber-porn revenge and
sexually motivated violation of privacy offenses. This
forfeiture provision - Penal Code 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.
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
SB 676
Page 5
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee, there are
minor absorbable costs.
SUPPORT: (Verified 8/21/15)
Office of the Attorney General (source)
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 8/21/15)
American Civil Liberties Union
ASSEMBLY FLOOR: 79-0, 8/20/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
SB 676
Page 6
Chau, Chávez, Chiu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Chu
Prepared by:Jerome McGuire / PUB. S. /
8/21/15 13:39:36
**** END ****