Amended in Assembly August 1, 2016

Amended in Senate March 31, 2016

Amended in Senate March 28, 2016

Senate Bill No. 1137

Introduced by Senator Hertzberg

(Principal coauthor: Senator Beall)

(Coauthors: Senators Anderson, Bates, begin insert Cannella, end insert Hill, Huff, Liu, begin delete and end delete begin insert Stone, and end insert Wieckowski)

(Coauthors: Assembly Members Brough, begin insert Chang, Chau, end insert Chávez, Dodd, begin insert Cristina  end insert begin insert Garcia, end insert Lackey, begin insert Lopez, end insert Low, begin insert Maienschein, end insert and Obernolte)

February 18, 2016

An act to amend Section 502 of the Penal Code, relating to computer crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 1137, as amended, Hertzberg. Computer crimes: ransomware.

Existing law establishes various crimes relating to computer services and systems, including, but not limited to, knowingly introducing a computer contaminant, as defined. Existing law makes a violation of those crimes punishable by specified fines or terms of imprisonment, or by both those fines and imprisonment.

Existing law defines extortion as obtaining the property of another, with his or her consent, induced by a wrongful use of force or fear. Existing law makes extortion a crime, punishable by imprisonment in a county jail for 2, 3, or 4 years.

This bill would define ransomware as a computer begin delete or data contaminant or lock placed in or introduced into a computer system, computer or data in a computer system, or computer that restricts access to the system, computer, or data in some way, and under circumstances in which the person responsible for the ransomware demands payment of money or other consideration to remove the contaminant, unlock the computer system or computer, or repair the injury done to the computer system, computer, or data by the contaminant or lock. The bill would provide that a person is responsible for placing or introducing a contaminant or lock into a computer system, computer or data on a computer system, or computer if the person directly places or introduces the contaminant or lock, directs another to do so, or induces another person do so, with the intent of demanding payment or other consideration to remove the contaminant, unlock the computer system or computer, or repair the computer system, computer or data on the computer system, or computer. end delete begin insert contaminant or lock placed or introduced without authorization into a computer, computer system, or computer network that restricts access by an authorized person to the computer, computer system, computer network, or any data therein under circumstances in which the person responsible for the placement or introduction of the ransomware demands payment of money or other consideration to remove the computer contaminant, restore access to the computer, computer system, computer network, or data, or otherwise remediate the impact of the computer contaminant or lock. The bill would provide that a person is responsible for placing or introducing ransomware into a computer, computer system, or computer network if the person directly places or introduces the ransomware or directs or induces another person do so, with the intent of demanding payment or other consideration to remove the ransomware, restore access, or otherwise remediate the impact of the ransomware. end insert The bill would make it a crime for a person to knowingly introduce ransomware into any computer, computer system, or computer network. The bill would make a violation of this provision punishable by imprisonment in a county jail for 2, 3, or 4 years and a fine not exceeding $10,000. The bill would specify that prosecution under that provision does not prohibit or limit prosecution under any other law.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 502 of the Penal Code is amended to
read:

502.  

(a) It is the intent of the Legislature in enacting this
section to expand the degree of protection afforded to individuals,
businesses, and governmental agencies from tampering,
interference, damage, and unauthorized access to lawfully created
begin delete computer data and computer systems. end delete begin insert computers, computer
systems, computer networks, and data. end insert The Legislature finds and
declares that the proliferation of computer technology has resulted
in a concomitant proliferation of computer crime and other forms
of unauthorized access to computers, computer systems, and
computer data.

The Legislature further finds and declares that protection of the
integrity of all types and forms of lawfully created computers,
computer systems, begin insert computer networks, end insert and begin delete computer end delete data is vital
to the protection of the privacy of individuals as well as to the
well-being of financial institutions, business concerns,
governmental agencies, and others within this state that lawfully
utilize those computers, computer systems, begin insert computer networks, end insert
and data.

(b) For the purposes of this section, the following terms have
the following meanings:

(1) “Access” means to gain entry to, instruct, cause input to,
cause output from, cause data processing with, or communicate
with, the logical, arithmetical, or memory function resources of a
computer, computer system, or computer network.

(2) “Computer network” means any system that provides
communications between one or more computer systems and
input/output devices, including, but not limited to, display
terminals, remote systems, mobile devices, and printers connected
by telecommunication facilities.

(3) “Computer program or software” means a set of instructions
or statements, and related data, that when executed in actual or
modified form, cause a computer, computer system, or computer
network to perform specified functions.

(4) “Computer services” includes, but is not limited to, computer
time, data processing, or storage functions, Internet services,
electronic mail services, electronic message services, or other uses
of a computer, computer system, or computer network.

(5) “Computer system” means a device or collection of devices,
including support devices and excluding calculators that are not
programmable and capable of being used in conjunction with
external files, one or more of which contain computer begin delete programs, end delete
begin insert programs or software, end insert electronic instructions, input data, and
output data, that performs functions, including, but not limited to,
logic, arithmetic, data storage and retrieval, communication, and
control.

(6) “Government computer system” means any computer system,
or part thereof, that is owned, operated, or used by any federal,
state, or local governmental entity.

(7) “Public safety infrastructure computer system” means any
computer system, or part thereof, that is necessary for the health
and safety of the public including computer systems owned,
operated, or used by drinking water and wastewater treatment
facilities, hospitals, emergency service providers,
telecommunication companies, and gas and electric utility
companies.

(8) “Data” means a representation of information, knowledge,
facts, concepts, computer software, or computer programs or
instructions. Data may be in any form, in storage media, or as
stored in the memory of the computer or in transit or presented on
a display device.

(9) “Supporting documentation” includes, but is not limited to,
all information, in any form, pertaining to the design, construction,
classification, implementation, use, or modification of a computer,
computer system, computer network, computer program, or
computer software, which information is not generally available
to the public and is necessary for the operation of a computer,
computer system, computer network, computer program, or
computer software.

(10) “Injury” means any alteration, deletion, damage, or
destruction of a computer system, computer network, computer
program, or data caused by the access, or the denial of access to
legitimate users of a computer system, network, or program.

(11) “Victim expenditure” means any expenditure reasonably
and necessarily incurred by the owner or lessee to verify that a
computer system, computer network, computer program, or data
was or was not altered, deleted, damaged, or destroyed by the
access.

(12) “Computer contaminant” means any set of computer
instructions begin insert or data end insert that are designed to modify, damage, destroy,
begin insert render inaccessible, end insert record, or transmit begin delete information end delete begin insert data end insert within a
computer, computer system, or computer network without the
intent or permission of the owner of the begin delete information. end delete begin insert data. end insert They
include, but are not limited to, a group of computer instructions
commonly called viruses or worms, begin delete that end delete begin insert which end insert are self-replicating
or self-propagating and are designed to contaminate begin insert data or end insert other
computer programs begin delete or computer data, end delete begin insert or software, end insert consume
computer resources, begin delete modify, destroy, record, or transmit data, or
in some other fashion end delete begin insert or otherwise end insert usurp the normal operation of
the computer, computer system, or computer network.

(13) “Internet domain name” means a globally unique,
hierarchical reference to an Internet host or service, assigned
through centralized Internet naming authorities, comprising a series
of character strings separated by periods, with the rightmost
character string specifying the top of the hierarchy.

(14) “Electronic mail” means an electronic message or computer
file that is transmitted between two or more telecommunications
devices; computers; computer networks, regardless of whether the
network is a local, regional, or global network; or electronic devices
capable of receiving electronic messages, regardless of whether
the message is converted to hard copy format after receipt, viewed
upon transmission, or stored for later retrieval.

(15) “Profile” means either of the following:

(A) A configuration of user data required by a computer so that
the user may access programs or services and have the desired
functionality on that computer.

(B) An Internet Web site user’s personal page or section of a
page that is made up of data, in text or graphical form, that displays
significant, unique, or identifying information, including, but not
limited to, listing acquaintances, interests, associations, activities,
or personal statements.

(16) (A) “Ransomware” means a computer begin delete or data end delete contaminant
or lock placed begin delete in end delete or introduced begin insert without authorization end insert into a
begin delete computer system, computer or data in a computer system, or
computer end delete begin insert computer, computer system, or computer network end insert that
restricts access begin delete to the system, computer, or data in some way, and end delete
begin insert by an authorized person to the computer, computer system,
computer network, or any data therein end insert under circumstances in
which the person responsible for the begin insert placement or introduction of
the end insert ransomware demands payment of money or other consideration
to remove the begin insert computer end insert contaminant, begin delete unlock the computer system
or computer, or repair the injury done to the computer system,
computer, or data by the end delete begin insert restore access to the computer, computer
system, computer network, or data, or otherwise remediate the
impact of the computer end insert contaminant or lock.

(B) A person is responsible for placing or introducing begin delete a
contaminant or lock into a computer system, computer or data on
a computer system, or computer end delete begin insert ransomware into a computer,
computer system, or computer network end insert if the person directly places
or introduces the begin delete contaminant or lock, directs another to do so, or end delete
begin insert ransomware or directs or end insert induces another person do so, with the
intent of demanding payment or other consideration to remove the begin delete contaminant, unlock the computer system or computer, or repair
the computer system, computer or data on the computer system,
or computer. end delete begin insert ransomware, restore access, or otherwise remediate
the impact of the ransomware. end insert

(c) Except as provided in subdivision (h), any person who
commits any of the following acts is guilty of a public offense:

(1) Knowingly accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer, computer
system, or computer network in order to either (A) devise or
execute any scheme or artifice to defraud, deceive, or extort, or
(B) wrongfully control or obtain money, property, or data.

(2) Knowingly accesses and without permission takes, copies,
or makes use of any data from a computer, computer system, or
computer network, or takes or copies any supporting
documentation, whether existing or residing internal or external
to a computer, computer system, or computer network.

(3) Knowingly and without permission uses or causes to be used
computer services.

(4) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
computer, computer system, or computer network.

(5) Knowingly and without permission disrupts or causes the
disruption of computer services or denies or causes the denial of
computer services to an authorized user of a computer, computer
system, or computer network.

(6) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
computer network in violation of this section.

(7) Knowingly and without permission accesses or causes to be
accessed any computer, computer system, or computer network.

(8) Knowingly introduces any computer contaminant into any
computer, computer system, or computer network.

(9) Knowingly and without permission uses the Internet domain
name or profile of another individual, corporation, or entity in
connection with the sending of one or more electronic mail
messages or posts and thereby damages or causes damage to a
computer, computer data, computer system, or computer network.

(10) Knowingly and without permission disrupts or causes the
disruption of government computer services or denies or causes
the denial of government computer services to an authorized user
of a government computer, computer system, or computer network.

(11) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
public safety infrastructure computer system computer, computer
system, or computer network.

(12) Knowingly and without permission disrupts or causes the
disruption of public safety infrastructure computer system computer
services or denies or causes the denial of computer services to an
authorized user of a public safety infrastructure computer system
computer, computer system, or computer network.

(13) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
public safety infrastructure computer system computer, computer
system, or computer network in violation of this section.

(14) Knowingly introduces any computer contaminant into any
public safety infrastructure computer system computer, computer
system, or computer network.

(15) Knowingly introduces ransomware into any computer,
computer system, or computer network.

(d) (1) Any person who violates any of the provisions of
paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is
guilty of a felony, punishable by imprisonment pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years and a fine not exceeding ten thousand dollars ($10,000), or
a misdemeanor, punishable by imprisonment in a county jail not
exceeding one year, by a fine not exceeding five thousand dollars
($5,000), or by both that fine and imprisonment.

(2) Any person who violates paragraph (3) of subdivision (c)
is punishable as follows:

(A) For the first violation that does not result in injury, and
where the value of the computer services used does not exceed
nine hundred fifty dollars ($950), by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(B) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000) or in an injury,
or if the value of the computer services used exceeds nine hundred
fifty dollars ($950), or for any second or subsequent violation, by
a fine not exceeding ten thousand dollars ($10,000), or by
imprisonment pursuant to subdivision (h) of Section 1170 for 16
months, or two or three years, or by both that fine and
imprisonment, or by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment.

(3) Any person who violates paragraph (6), (7), or (13) of
subdivision (c) is punishable as follows:

(A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding one thousand dollars
($1,000).

(B) For any violation that results in a victim expenditure in an
amount not greater than five thousand dollars ($5,000), or for a
second or subsequent violation, by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.

(C) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000), by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment
pursuant to subdivision (h) of Section 1170 for 16 months, or two
or three years, or by both that fine and imprisonment, or by a fine
not exceeding five thousand dollars ($5,000), or by imprisonment
in a county jail not exceeding one year, or by both that fine and
imprisonment.

(4) Any person who violates paragraph (8) or (14) of subdivision
(c) is punishable as follows:

(A) For a first violation that does not result in injury, a
misdemeanor punishable by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding one
year, or by imprisonment pursuant to subdivision (h) of Section
1170, or by both that fine and imprisonment.

(5) Any person who violates paragraph (9) of subdivision (c)
is punishable as follows:

(A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding one thousand dollars
($1,000).

(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment.

(6) Any person who violates paragraph (15) of subdivision (c)
is guilty of a felony, punishable by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years and
a fine not exceeding ten thousand dollars ($10,000). Prosecution
under this paragraph does not prohibit or limit prosecution under
any other law.

(e) (1) In addition to any other civil remedy available, the owner
or lessee of the computer, computer system, computer network,
computer program, or data who suffers damage or loss by reason
of a violation of any of the provisions of subdivision (c) may bring
a civil action against the violator for compensatory damages and
injunctive relief or other equitable relief. Compensatory damages
shall include any expenditure reasonably and necessarily incurred
by the owner or lessee to verify that a computer system, computer
network, computer program, or data was or was not altered,
damaged, or deleted by the access. For the purposes of actions
authorized by this subdivision, the conduct of an unemancipated
minor shall be imputed to the parent or legal guardian having
control or custody of the minor, pursuant to the provisions of
Section 1714.1 of the Civil Code.

(2) In any action brought pursuant to this subdivision the court
may award reasonable attorney’s fees.

(3) A community college, state university, or academic
institution accredited in this state is required to include
computer-related crimes as a specific violation of college or
university student conduct policies and regulations that may subject
a student to disciplinary sanctions up to and including dismissal
from the academic institution. This paragraph shall not apply to
the University of California unless the Board of Regents adopts a
resolution to that effect.

(4) In any action brought pursuant to this subdivision for a
willful violation of the provisions of subdivision (c), where it is
proved by clear and convincing evidence that a defendant has been
guilty of oppression, fraud, or malice as defined in subdivision (c)
of Section 3294 of the Civil Code, the court may additionally award
punitive or exemplary damages.

(5) No action may be brought pursuant to this subdivision unless
it is initiated within three years of the date of the act complained
of, or the date of the discovery of the damage, whichever is later.

(f) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this state
which applies or may apply to any transaction, nor shall it make
illegal any employee labor relations activities that are within the
scope and protection of state or federal labor laws.

(g) Any computer, computer system, computer network, or any
software or data, owned by the defendant, that is used during the
commission of any public offense described in subdivision (c) or
any computer, owned by the defendant, which is used as a
repository for the storage of software or data illegally obtained in
violation of subdivision (c) shall be subject to forfeiture, as
specified in Section 502.01.

(h) (1) Subdivision (c) does not apply to punish any acts which
are committed by a person within the scope of his or her lawful
employment. For purposes of this section, a person acts within the
scope of his or her employment when he or she performs acts
which are reasonably necessary to the performance of his or her
work assignment.

(2) Paragraph (3) of subdivision (c) does not apply to penalize
any acts committed by a person acting outside of his or her lawful
employment, provided that the employee’s activities do not cause
an injury, to the employer or another, or provided that the value
of supplies or computer services which are used does not exceed
an accumulated total of two hundred fifty dollars ($250).

(i) No activity exempted from prosecution under paragraph (2)
of subdivision (h) which incidentally violates paragraph (2), (4),
or (7) of subdivision (c) shall be prosecuted under those paragraphs.

(j) For purposes of bringing a civil or a criminal action under
this section, a person who causes, by any means, the access of a
computer, computer system, or computer network in one
jurisdiction from another jurisdiction is deemed to have personally
accessed the computer, computer system, or computer network in
each jurisdiction.

(k) In determining the terms and conditions applicable to a
person convicted of a violation of this section the court shall
consider the following:

(1) The court shall consider prohibitions on access to and use
of computers.

(2) Except as otherwise required by law, the court shall consider
alternate sentencing, including community service, if the defendant
shows remorse and recognition of the wrongdoing, and an
inclination not to repeat the offense.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.