BILL NUMBER: AB 1629	CHAPTERED
	BILL TEXT

	CHAPTER   863
	FILED WITH SECRETARY OF STATE   SEPTEMBER 28, 1998
	APPROVED BY GOVERNOR   SEPTEMBER 26, 1998
	PASSED THE ASSEMBLY   AUGUST 27, 1998
	PASSED THE SENATE   AUGUST 26, 1998
	AMENDED IN SENATE   AUGUST 20, 1998
	AMENDED IN SENATE   AUGUST 17, 1998
	AMENDED IN SENATE   JULY 28, 1998
	AMENDED IN SENATE   JUNE 29, 1998
	AMENDED IN SENATE   JUNE 11, 1998
	AMENDED IN ASSEMBLY   MAY 14, 1998
	AMENDED IN ASSEMBLY   APRIL 21, 1998
	AMENDED IN ASSEMBLY   APRIL 14, 1998
	AMENDED IN ASSEMBLY   MARCH 12, 1998

INTRODUCED BY   Assembly Members Miller and Cunneen
   (Coauthors:  Assembly Members Alquist, Baldwin, Bordonaro,
Campbell, Frusetta, Leach, Lempert, Morrissey, and Runner)

                        JANUARY 5, 1998

   An act to amend Section 17511.1 of, and to add Section 17538.45
to, the Business and Professions Code, and to amend Section 502 of
the Penal Code, relating to advertising.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1629, Miller.  Advertising:  telephonic sellers:  electronic
mail.
   (1) Existing law provides for the regulation of telephonic
sellers, as defined.  It exempts from the definition of telephonic
sellers certain specified persons.
   This bill would add to those persons exempt from the definition of
telephonic sellers certain nonprofit corporations that have been
exempt from taxation under a specified provision of the Revenue and
Taxation Code for a minimum of 10 years, that have maintained their
principal purpose for a minimum of 10 years, and that have been
incorporated in the state for a minimum of 25 years.
   (2) Existing law prohibits a person conducting business in this
state from faxing unsolicited advertising material, unless certain
conditions are satisfied.
   This bill would also prohibit a registered user of an electronic
mail service provider, as defined, from using or causing to be used
the provider's equipment located in this state in violation of the
provider's policy prohibiting or restricting the use of its equipment
for the initiation of unsolicited electronic mail advertisements.
It would also prohibit any individual, corporation, or other entity
from using or causing to be used, by initiating an unsolicited
electronic mail advertisement, an electronic mail service provider's
equipment located in this state in violation of the provider's policy
prohibiting or restricting the use of its equipment to deliver
unsolicited electronic mail advertisements to its registered users.
It would authorize any electronic mail service provider whose policy
is violated as provided in these provisions to bring, in addition to
any other action available under law, a civil action to recover
damages, as specified, and would authorize the court to award
reasonable attorney's fees to a prevailing party in that action.
   (3) Existing law makes it a crime to knowingly and without
permission tamper with, interfere with, damage, or gain unlawful
access to certain computers, computer systems, and computer data.
   This bill would, in addition, make it a crime to knowingly and
without permission use the Internet domain name, as defined, of
another individual, corporation, or entity in connection with the
sending of one or more electronic mail messages, and thereby damage
or cause damage to a computer, computer system, or computer network.
By creating a new crime, this bill would impose a state-mandated
local program.
  (4) 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.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 17511.1 of the Business and Professions Code is
amended to read:
   17511.1.  As used in this article, "telephonic seller" or "seller"
means a person who, on his or her own behalf or through salespersons
or through the use of an automatic dialing-announcing device, as
defined in Section 2871 of the Public Utilities Code, causes a
telephone solicitation or attempted telephone solicitation to occur
which meets the criteria specified in subdivision (a), (b), (c), or
(d) and who is not exempted by subdivision (e), as follows:
   (a) A telephone solicitation or attempted telephone solicitation
wherein the telephonic seller initiates telephonic contact with a
prospective purchaser and represents or implies one or more of the
following:
   (1) That a prospective purchaser who buys one or more items will
also receive additional or other items, whether or not of the same
type as purchased, without further cost.  For purposes of this
subdivision, "further cost" does not include actual postage or common
carrier delivery charges, if any.
   (2) That a prospective purchaser will receive a prize or gift, if
the person also encourages the prospective purchaser to do either of
the following:
   (A) Purchase or rent any goods or services.
   (B) Pay any money, including, but not limited to, a delivery or
handling charge.
   (3) That a prospective purchaser is able to obtain any item or
service at a price which the seller states or implies is below the
regular price of the item or service offered.  This paragraph shall
not apply to retailers who, within the previous 12 months, have sold
a majority of their goods or services through in-person sales at
retail stores.
   (4) That a prospective purchaser who buys office equipment or
supplies will, because of some unusual event or imminent price
increase, be able to buy these items at prices which are below those
that are usually charged or will be charged for the items.
   (5) That the seller is a person other than the person he or she
is.
   (6) That the items for sale are manufactured or supplied by a
person other than the actual manufacturer or supplier.
   (7) That the seller is offering to sell the prospective purchaser
any gold, silver, or other metals, including coins, diamonds, rubies,
sapphires, or other stones, coal or other minerals, or any interest
in oil, gas, or mineral fields, wells, or exploration sites, or any
other investment opportunity of any type whatsoever.
   (8) That the seller is offering to make a loan, or to arrange or
assist in arranging a loan or to assist in providing information
which may lead to the obtaining of a loan, unless no payment of any
kind is made until the loan proceeds are disbursed to the borrower.
   (9) That a prospective purchaser will receive a credit card, as
defined in subdivision (a) of Section 1747.02 of the Civil Code, if
the purchaser pays an up front or preapplication fee for the credit
card to the telephonic seller.
   (b) A solicitation or attempted solicitation which is made by
telephone in response to inquiries generated by unrequested
notifications sent by the seller to persons who have not previously
purchased goods or services from the seller or who have not
previously requested credit from the seller, to a prospective
purchaser wherein the seller represents or implies to the recipient
of the notification that any of the following applies to the
recipient:
   (1) That the recipient has in any manner been specially selected
to receive the notification or the offer contained in the
notification.
   (2) That the recipient will receive a prize or gift if the
recipient calls the seller.
   (3) That if the recipient buys one or more items from the seller,
the recipient will also receive additional or other items, whether or
not of the same type as purchased, without further cost or at a cost
which the seller states or implies is less than the regular price of
such items.
   However, this subdivision does not apply to the solicitation of
sales by a catalog seller who periodically issues and delivers
catalogs to potential purchasers by mail or by other means.  This
exception only applies if the catalog includes a written description
or illustration and the sales price of each item of merchandise
offered for sale, includes at least 24 full pages of written material
or illustrations, is distributed in more than one state, and has an
annual circulation of not less than 250,000 customers.
   (c) A solicitation or attempted solicitation which is made by
telephone in response to inquiries generated by advertisements on
behalf of the telephonic seller wherein it is represented or implied
that the seller is offering to sell to the prospective purchaser any
gold, silver, or other metals, including coins, diamonds, rubies,
sapphires, or other stones, coal or other minerals, or any interest
in oil, gas, or mineral fields, wells, or exploration sites, or any
other investment opportunity of any type whatsoever.
   (d) A solicitation or attempted solicitation which is made by
telephone in response to inquiries generated by advertisements on
behalf of the telephonic seller wherein it is represented or implied
that the seller is offering to make a loan or to arrange or assist in
arranging a loan or to assist in providing information which may
lead to the obtaining of a loan, unless no payment of any kind is
made until the loan proceeds are disbursed to the borrower.
   (e) For purposes of this article, "telephonic seller" or "seller"
does not include any of the following:
   (1) A person offering or selling a security qualified under
Section 25110, 25120, or 25130 of the Corporations Code or exempt
from qualification under Chapter 1 (commencing with Section 25100) of
Part 2 of Division 1 of Title 4 of the Corporations Code.  The fact
that a notice claiming an exemption under the Corporate Securities
Law of 1968 is filed with the Department of Corporations does not
create an exemption under this paragraph.
   (2) A person licensed pursuant to Part 1 (commencing with Section
10000) of Division 4, when the solicited transaction is governed by
that law.
   (3) A person licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3, when the solicited transaction is
governed by that law.
   (4) A person licensed or certificated pursuant to Part 2
(commencing with Section 680) of Division 1 of the Insurance Code,
including a person licensed pursuant to Chapter 5 (commencing with
Section 1621) thereof, when the solicited transaction is governed by
that law.
   (5) A person offering or selling a franchise registered pursuant
to Section 31110 of the Corporations Code or exempt from registration
under Chapter 1 (commencing with Section 31100) of Part 2 of
Division 5 of Title 4 of the Corporations Code.  The fact that a
notice claiming an exemption under the Franchise Investment Law is
filed with the Department of Corporations does not create an
exemption under this paragraph.
   (6) A person soliciting the sale of a seller assisted marketing
plan, as defined in Title 2.7 (commencing with Section 1812.200) of
Part 4 of Division 3 of the Civil Code, who has filed with the
Attorney General the documents required by Section 1812.203 of the
Civil Code.
   (7) A person primarily soliciting the sale of a newspaper of
general circulation, as defined in Article 1 (commencing with Section
6000) of Chapter 1 of Division 7 of Title 1 of the Government Code,
a magazine, or membership in a book or record club whose program
operates in conformity with the requirements of Section 1584.5 of the
Civil Code.
   (8) A person soliciting business from prospective purchasers who
have previously purchased from the business enterprise for which the
person is calling.
   (9) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation but completes the sales presentation at a later
face-to-face meeting between the solicitor and the prospective
purchaser.  However, if a seller, directly following a telephone
solicitation, causes an individual whose primary purpose it is to go
to the prospective purchaser to collect the payment or deliver any
item purchased, this exemption does not apply.
   (10) Any supervised financial institution or parent, subsidiary,
or subsidiary of parent thereof.  As used in this paragraph,
"supervised financial institution" means any commercial bank, trust
company, savings and loan association, credit union, industrial loan
company, personal property broker, consumer finance lender,
commercial finance lender, or insurer, provided that the institution
is subject to supervision by an official or agency of this state or
of the United States.
   (11) A person soliciting the sale of a preneed funeral arrangement
regulated by Article 9 (commencing with Section 7735) of Chapter 12
of Division 3.
   (12) A person licensed pursuant to Chapter 19 (commencing with
Section 9600) of Division 3 when acting pursuant to that licensure.
   (13) A person soliciting the sale of services provided by a cable
television system licensed or franchised pursuant to Section 53066 of
the Government Code or any other authority.
   (14) A person or an affiliate of a person whose business is
regulated by the Public Utilities Commission.
   (15) A person soliciting the sale of a commodity pursuant to Part
2 (commencing with Section 58601) of Division 21 of the Food and
Agricultural Code, if the solicitation neither intends to, nor
actually results in, a sale which costs the purchaser in excess of
one hundred dollars ($100).
   (16) An issuer or subsidiary of an issuer that has a security
listed on a national securities exchange or designated as a national
market system security on an interdealer quotation system by the
National Association of Securities Dealers, Inc., if the exchange or
interdealer quotation system has been certified by rule or order of
the Commissioner of Corporations under subdivision (o) of Section
25100 of the Corporations Code.  A subsidiary of an issuer that
qualifies for exemption under this paragraph is not itself exempt
unless not less than 60 percent of the voting power of its shares is
owned by the qualifying issuer or issuers.
   (17) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer.
   (18) A person soliciting a transaction regulated by the Commodity
Futures Trading Commission if the person is registered or temporarily
licensed for this activity with the Commodity Futures Trading
Commission under the Commodity Exchange Act (7 U.S.C. Sec. 1 et
seq.), and the registration or license has not expired or been
suspended or revoked.
   (19) A person who sells coins or bullion at a price which is not
more than 25 percent more than the price at which the seller is
concurrently buying the same coins or bullion, if:  (A) the seller
has had a retail location in California from which he or she has been
selling coins or bullion to the public in person for at least three
years; (B) the telephonic solicitations are not the person's primary
business and sales made telephonically make up less than 20 percent
of the person's total retail sales; and (C) the person claiming an
exemption pursuant to this subdivision complies with Section 17511.3,
as applicable, and subdivision (p) of Section 17511.4.
   (20) A person licensed pursuant to Chapter 14 (commencing with
Section 1800) of Division 1 of the Financial Code to receive money
for transmittal to foreign countries if the license has not expired
or been suspended or revoked.
   (21) A person licensed as a residential mortgage lender or
servicer pursuant to Division 20 (commencing with Section 50000) of
the Financial Code, when acting under the authority of that license.

   (22) A corporation that meets all of the following conditions:
   (A) It has been exempt from taxation under Section 23701e of the
Revenue and Taxation Code for a minimum of 10 years.
   (B) It has maintained its principal purpose for a minimum of 10
years.
   (C) It has been incorporated in the state for a minimum of 25
years.
   (f) In any civil proceeding alleging a violation of this article,
the burden of proving an exemption or an exception from a definition
is upon the person claiming it, and in any criminal proceeding
alleging a violation of this article, the burden of producing
evidence to support a defense based upon an exemption or an exception
from a definition is upon the person claiming it.
   (g) Compliance with this article does not satisfy nor substitute
for any requirements for license, registration, or regulation
mandated by other laws.
  SEC. 2.  Section 17538.45 is added to the Business and Professions
Code, to read:
   17538.45.  (a) For purposes of this section, the following words
have the following meanings:
   (1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
   (2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
   (A) It is addressed to a recipient with whom the initiator does
not have an existing business or personal relationship.
   (B) It is not sent at the request of or with the express consent
of the recipient.
   (3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
   (4) "Initiation" of an unsolicited electronic mail advertisement
refers to the action by the initial sender of the electronic mail
advertisement.  It does not refer to the actions of any intervening
electronic mail service provider that may handle or retransmit the
electronic message.
   (5) "Registered user" means any individual, corporation, or other
entity that maintains an electronic mail address with an electronic
mail service provider.
   (b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service provider's
equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its
service or equipment for the initiation of unsolicited electronic
mail advertisements.
   (c) No individual, corporation, or other entity shall use or cause
to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment
located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its equipment
to deliver unsolicited electronic mail advertisements to its
registered users.
   (d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment
for the initiation or delivery of unsolicited electronic mail
advertisements.
   (e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, or any
decision of an electronic mail service provider to permit or to
restrict access to or use of its system, or any exercise of its
editorial function.
   (f) (1) In addition to any other action available under law, any
electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss
suffered by that provider by reason of that violation, or liquidated
damages of fifty dollars ($50) for each electronic mail message
initiated or delivered in violation of this section, up to a maximum
of twenty-five thousand dollars ($25,000) per day, whichever amount
is greater.
   (2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
   (3) (A) In any action brought pursuant to paragraph (1), the
electronic mail service provider shall be required to establish as an
element of its cause of action that prior to the alleged violation,
the defendant had actual notice of both of the following:
   (i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
   (ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
   (B) In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on
the computers used to provide electronic mail services in a manner
that displays the policy statements every time an electronic mail
delivery is requested.  While the state of the technology does not
support such a finding at present, the Legislature believes that, in
a given case at some future date, a showing that notice was supplied
via electronic means between the sending and receiving computers
could be held to constitute actual notice to the sender for purposes
of this paragraph.
   (4) A violation of this section shall not be subject to Section
17534.
  SEC. 3.  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 computer data and
computer systems.  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, and computer 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, and data.
   (b) For the purposes of this section, the following terms have the
following meanings:
   (1) "Access" means to gain entry to, instruct, 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 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, 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 programs, 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) "Data" means a representation of information, knowledge,
facts, concepts, computer software, 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.
   (7) "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.
   (8) "Injury" means any alteration, deletion, damage, or
destruction of a computer system, computer network, computer program,
or data caused by the access.
   (9) "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.
   (10) "Computer contaminant" means any set of computer instructions
that are designed to modify, damage, destroy, record, or transmit
information within a computer, computer system, or computer network
without the intent or permission of the owner of the information.
They include, but are not limited to, a group of computer
instructions commonly called viruses or worms, that are
self-replicating or self-propagating and are designed to contaminate
other computer programs or computer data, consume computer resources,
modify, destroy, record, or transmit data, or in some other fashion
usurp the normal operation of the computer, computer system, or
computer network.
   (11) "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.
   (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
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.
   (d) (1) Any person who violates any of the provisions of paragraph
(1), (2), (4), or (5) of subdivision (c) is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in the
state prison 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.
   (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 four
hundred dollars ($400), 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 four hundred
dollars ($400), or for any second or subsequent violation, by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison 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 (8) 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 two hundred fifty
dollars ($250).
   (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 in the
state prison 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 (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 two hundred fifty
dollars ($250).

    (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.
   (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 may bring a civil action against any person
convicted under this section for compensatory damages, including 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 to a prevailing party.
   (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.
   (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 any person who accesses
his or her employer's computer system, computer network, computer
program, or data when acting within the scope of his or her lawful
employment.
   (2) Paragraph (3) of subdivision (c) does not apply to any
employee who accesses or uses his or her employer's computer system,
computer network, computer program, or data when acting outside the
scope of his or her lawful employment, so long as the employee's
activities do not cause an injury, as defined in paragraph (8) of
subdivision (b), to the employer or another, or so long as the value
of supplies and computer services, as defined in paragraph (4) of
subdivision (b), which are used do not exceed an accumulated total of
one hundred dollars ($100).
   (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. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.