BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1137       Hearing Date:    April 12, 2016    
          |Author:    |Hertzberg                                            |
          |Version:   |March 31, 2016                                       |
          |Urgency:   |No                     |Fiscal:    |Yes              |
          |Consultant:|JM                                                   |
          |           |                                                     |

                        Subject:  Computer Crimes: Ransomware


          Source:        TechNet; Los Angeles County District Attorney

          Prior Legislation:AB 32 (Waldron) Ch. 614 Stats. 2015
                         AB 1649 (Waldron) - Ch. 379, Statutes of 2014

          Support:  Association of Orange County Deputy Sheriffs;  
                    California Association of Licensed Investigators;  
                    California Police Chiefs Association; California State  
                    Sheriffs' Association; California Statewide Law  
                    Enforcement Association; Fraternal Order of Police,  
                    California State Lodge; Long Beach Police Officers  
                    Association; Sacramento County Deputy Sheriffs'  

          Opposition:Legal Services for Prisoners with Children



          The purpose of this bill is to: 1) separately define as a felony  
          the crime of placing a contaminant or lock on a computer or  


          SB 1137  (Hertzberg )                                     PageB  
          computer system for the purpose of locking or controlling the  
          computer, computer system or data files, coupled with a demand  
          for payment of money or other consideration before the lock will  
          be removed of control returned to owner or authorized user; and,  
          2) to specifically define such a contaminant or lock as  

          Existing law defines numerous computer or electronic data  
          offenses and imposes a wide range of penalties based on the  
          seriousness of the offense or extent of harm caused by the  
          defendant, including by by felony imprisonment pursuant to Penal  
          Code Section 1170, subdivision (h) for a term of term of 16  
          months, two years or three years and a fine of up to $10,000, or  
          as misdemeanor by a fine not exceeding $5,000, or a fine of up  
          to $1,000  by imprisonment in a county jail not exceeding one  
          year, or as infraction.  (Pen. Code  502.)  These penalties  
          apply where any person knowingly:

                 Accesses and without permission alters, damages,  
               deletes, destroys, or otherwise uses any data, computer,  
               computer system, or computer network in order to devise or  
               execute any scheme or artifice to defraud, deceive, or  
               extort, or wrongfully control or obtain money, property or  

                 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  
                 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  
                 Without permission, disrupts or causes the disruption of  
               computer services or denies or causes the denial of  
               computer services, or denies or causes the denial of  
               computer services to an authorized user of a computer,  
               computer system, or computer network.
                 Disrupts or improperly accesses a government or public  
               safety computer system
                 Without permission provides or assists in providing a  


          SB 1137  (Hertzberg )                                     PageC  
               means of accessing, accesses, or causes to be accessed a  
               computer, computer system, or computer network as 
                 Introduces any computer contaminant into any computer,  
               or computer system, or computer network as follows:
                 Without permission uses the Internet domain name of  
               another individual, corporation, or entity in connection  
               with the sending of one or more electronic mail messages,  
               and thereby damages or causes damage to a computer,  
               computer system, or computer network as follows:.  (Pen.  
               Code  502, subds. (c)(9) and (d)(5).)

          Existing law defines extortion as the obtaining of property from  
          another person, without the person's consent, or obtaining an  
          official act of a public officer, induced by the wrongful use of  
          force or fear, or under color of official right.  (Pen. Code   

          Existing law defines force or fear sufficient to commit  
          extortion as a threat to do any of the following:

                 Injure the person or property of the person threatened  
               or a third person.

                 Accuse the threatened person or a relative of a crime.

                 Expose or impute to the person threatened or a relative  
               any deformity, disgrace or crime.

                 Expose any secret of the person or relative.

                 To report the immigration status of the person or a  
               relative   (Pen. Code  519.)

          Existing law provides that extortion is a felony, punishable  
          pursuant to Penal Code Section 1170, subdivision (h), to an  
          executed felony sentence of two, three or four years.  (Pen.  
          Code  520.)

          Existing law provides that attempted extortion is an alternate  
          felony-misdemeanor, punishable by a jail term of up to one year,  
          a fine of up to $1,000, or both, or by a prison term of 16  
          months, two years or three years and a fine of up to $10,000.

          Existing law includes "white collar" financial crime prison  


          SB 1137  (Hertzberg )                                     PageD  
          sentence enhancements of 1-5 years and special fines, depending  
          on the amount of money or property taken by the defendant or the  
          loss suffered by the victim. The enhancements apply where the  
          defendant is convicted of two or more related felonies and the  
          loss to the victim or gain to the defendant is at least  
          $100,000.    To prevent a defendant from secreting or  
          dissipating his or her assets, the court may order pretrial  
          seizure of assets to preserve them for restitution and fines.    
          (Pen. Code  186.11.)

          Existing federal law includes the Computer Fraud and Abuse Act  
          ("CFAA"), which prohibits a number of different computer crimes,  
          the majority of which involve accessing computers without  
          authorization or in excess of authorization, and then taking  
          specified forbidden actions, ranging from obtaining information  
          to damaging a computer or computer data.  (18 U.S.C.   

          Existing federal law provides that a person who intends to  
          extort from any person any money or other thing of value and  
          transmits in interstate or foreign commerce any communication  
          containing either of the following:

                 A threat to damage  a protected computer;
                 A threat to obtain information from a protected computer  
               without authorization or in excess of authorization or to  
               impair the confidentiality of information obtained from a  
               protected computer without authorization or by exceeding  
               authorized access; or
                 A demand or request for money or other thing of value in  
               relation to damage to a protected computer, where such  
               damage was caused to facilitate the extortion."  A first  
               violation is punishable by imprisonment for up to five  
               years and a fine determined pursuant to the sentencing  
               guidelines.<1> A violation that follows conviction for this  
               offense or a related offense is punishable by imprisonment  
               for up to 10 years and a fine determined through the  
               sentencing guidelines.  (18 U.S.C.  1030 (a)(7).)

               This bill provides that the person responsible for placing  

          <1> It appears that the fine would be no more than $250,000 or  
          twice the gain or loss in the crime.  (18 U.S.C.  3571.)


          SB 1137  (Hertzberg )                                     PageE  
               "ransomware" on a computer, computer system, or data in a  
               computer system is a felony, punishable pursuant to Penal  
               Code Section 1170, subdivision (h), by an executed felony  
               sentence of two years, three years or four years and a fine  
               of up to $10,000.

               This bill with defines "ransomware" as the placement or  
               introduction of a computer contaminant or lock on a  
               computer, computer system, or data in a computer system,  
               coupled with a demand that money or other consideration be  
               paid to the person responsible for the contaminant or lock  
               before it is removed or repaired.

               This bill provides that one is responsible for ransomware  
               if the person directly places or introduces the contaminant  
               or lock, or directs or induces another person to do so,  
               with the intent to demand payment or other consideration to  
               remove the contaminant, unlock the computer system or data,  
               or repair the computer, computer system or data.


          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  


          SB 1137  (Hertzberg )                                     PageF  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          SB 1137  (Hertzberg )                                     PageG  
          1.Need for This Bill

          According to the author:

               Kidnapping and ransom demands have been around as long  
               as criminal activity itself. But what is new in the  
               digital age is the immediacy in which a computer  
               hacker can access and hold your computer hostage.  
               Computer users are told that the only way to get their  
               machines back is to pay a steep fine. This is known as  
               "ransomware," a computer virus that renders files  
               unobtainable until a ransom is paid.
               Essentially online extortion, ransomware involves  
               infecting a user's computer with a virus that locks  
               it. The attackers demand money before the computer  
               will be unlocked, but once the money is paid attackers  
               may not unlock the system. One of the scarier things  
               about ransomware is that criminals can use victims'  
               machines however they like. While the computer is  
               locked, the criminals can steal passwords and even get  
               into the victim's online bank accounts. Ransomware  
               affects victims financially and imposes additional  
               costs of replacing breached hardware, bringing legal  
               action, and updating system security.

               This doesn't just impact home computers. Businesses,  
               financial institutions, government agencies, academic  
               institutions, and other organizations can and have  
               become infected as well, resulting in loss of  
               sensitive or proprietary information, disruption of  
               regular operations, financial losses incurred to  
               restore systems and files, and/or potential harm to an  
               organization's reputation. In 2014, according to a  
               recent report, 43 percent of companies experienced  
               some sort of data breach, including highly visible and  
               damaging attacks on Sony, Home Depot, Target and JP  
               Morgan Chase.

               This bill defines "ransomware" in state law and makes  
               it a crime to introduce ransomware into any computer,  
               system, or network. The range of punishment (up to  
               four years imprisonment) is equivalent to the  
               punishment under current law for extortion.


          SB 1137  (Hertzberg )                                     PageH  
          2.Using Ransomware is Criminal under Existing California and  
            Federal Laws, including Extortion and Introducing a  
            Contaminant into a Computer or Computer System

          The use of ransomware to demand a payment from a computer or  
          computer system owner or operator appears to constitute  
          extortion under existing California law.  California law (Pen.  
          Code  502 - the section amended by this bill) also makes it a  
          crime to access, damage or alter a computer system or data  
          without permission. Section 502 specifically lists prohibited  
          acts and provides various penalties, based on the severity of  
          the harm caused or value of services taken. 

          This bill would add the use of ransomware as a computer crime in  
          Section 502.  The penalty for this form of computer crimes is  
          the same as the penalty for extortion, a felony term of two,  
          three, or four years.  (Pen. Code  518-527.)  A prosecutor  
          could charge ransomware with the very specific crime defined by  
          this bill and the more general crime of extortion.  A prosecutor  
          could perhaps conclude that jurors would have a set  
          understanding of extortion as meaning a demand for protection  
          money from a store owner or blackmail to hide an embarrassing  
          secret that they might be confused or reluctant to apply  
          extortion to a highly technical and sophisticated computer  
          scheme.  A defendant, however, convicted of both offenses would  
          be subject to a single punishment.  California sentencing law  
          generally permits a prosecutor to obtain a conviction on every  
          crime covered by the defendant's conduct.  However, the  
          defendant can only be punished a single time for one act that  
          violates a number of criminal statutes or for multiple offenses  
          committed in one indivisible transaction.  (Pen. Code  654.)     


          3.Explosion in Computer and Data Fraud and Extortion Incidents  
            and Awareness

          It appears that the use of ransom to extort money or other form  


          SB 1137  (Hertzberg )                                     PageI  
          of exchange, such as bitcoin, has become nearly ubiquitous.   
          Even relatively large-scale attacks on or seizure of control  
          over computers, computer systems and computer can be done  
          quickly and remotely.

          Victims can reasonably conclude that they have little option but  
          to comply.  The perpetrators might well be in another country or  
          even another continent. An attempt to obtain assistance from law  
          enforcement may be futile and the perpetrators could punish such  
          attempts by destroying data that includes an entity's entire  
          operation.  A business or organization could conclude that it  
          could no longer function if the threat is carried out.  Even  
          where the threat is not executed, the very admission of the  
          event could be extremely harmful to a business or other  
          organization's reputation.  For example, a hospital would be  
          loath to admit that confidential medical records were seized or  
          locked.   The customers and clients of banks and brokerage  
          houses must believe that their financial holdings and  
          information are safe.  Attorneys cannot afford to reveal the  
          confidences of clients stored in digital files. 

          Computer criminals have become increasingly sophisticated as  
          technology became more sophisticated and essential to the life  
          of virtually every person and entity.  The attacks have included  
          locking or encrypting files on the home computers of individual  
          victims - often through authentic-look law enforcement  
          notifications that the victim has done some wrong that he or she  
          would never want exposed.<2>  The attacks have also included  
          attacks on large entities, such as three hospitals in recent,  
          well-publicized incidents in Southern California<3> and  
          government entities. It appears that no media report of  
          ransomware incidents is complete without noting that even police  
          departments have paid ransoms to computer criminals.  A February  




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          20, 2015 story in the Chicago Tribune reported the suburban  
          Chicago town of Midlothian paid a hacker $500<4> in bitcoin for  
          release of infected files.  Even the department's backup files  
          were encrypted.

          A number of computer, software and computer and computer data  
          security businesses have developed products to detect and remove  
          ransomware.  Numerous on-line guides about ransomware have been  
          published.  These typically include descriptions of ransomware,  
          how to detect ransomware, remove it and protect against.  For  
          example, the Mountain View, California firm Symantec has  
          published particularly detailed guides<5> for addressing  
          ransomware questions, concerns, protection, removal and  
          repair.<6> TechNet - a Microsoft division that is a co-sponsor  
          of this bill also publishes detailed ransomware guides and  
          assistance, including information about newly discovered  

          Comparison with Identity Theft

          In recent decades, identity theft has become a growing and  





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          daunting crime problem.  Traditional investigative techniques  
          did not work well to combat identity theft, a crime that was  
          often committed by unseen, electronic means, creating law  
          enforcement problems similar to recent ransomware incidents.

          In 1997, California was one of the first states to create a  
          crime specifically described as identity theft in Penal Code  
          section 530.5.<8>  Prior to that time, law enforcement agencies  
          generally considered the defrauded business entity that was  
          defrauded to    be the victim of identity theft, not the person  
          whose identity was stolen so that the fraud could be committed,  
          although applicable statutes described a person whose identity  
          was misused as a crime victim.  However, advocates believed that  
          the person who was the actual victim often found himself or  
          herself given no respect or standing in repairing the damage  
          done by the crime. 

          It would appear that the greatest value in the current identity  
          theft statutes is to allow a victim to clear his or her name.    
          Penal Code section 530.6 allows an identity theft victim to  
          require the police to investigate an identity theft report and  
          further allows the victim to use the report to obtain a court  
          order declaring that he or she did not commit certain crimes or  
          accumulate certain debts.  Pursuant to this judicial procedure,  
             a person may be listed in a database of identity theft victims  
          maintained by the Department of Justice.  

          One of the most daunting and frustrating problems encountered by  
          identify theft victims is the damage to one's credit.  Good  
          credit is essential to financial stability.  An identity theft  
          victim may well face months of work and substantial expense  
          repairing his or credit.  Companies marketing credit repair  
          services.  Credit card companies compete for business, in part,  
          by including credit monitoring and repair in a credit account.   
          Similar daunting problems face victims of ransomware and  
          cryptoware.  Business and government entities that were hacked  
          must repair systems, recreate files and rebuild the trust of  
          customers and citizens.  

                                      -- END -

          <8> AB 156 (Murray) Ch. 768, Stats. 1997


          SB 1137  (Hertzberg )                                     PageL