BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1595 A
Assembly Member Evans B
As Amended June 23, 2005
Hearing Date: June 28, 2005 1
Government Code 5
GMO:cjt 9
5
SUBJECT
Public Officials: Internet Posting of Home Information
DESCRIPTION
This bill would prohibit a person, business or association
from (1) posting or displaying on the Internet the home
address or telephone number of an elected or appointed
official, if that official has made a written demand that
the home address or telephone number not be disclosed; or
(2) soliciting the home address or telephone number of an
elected or appointed public official for the purpose of
posting or displaying the information in violation of the
prohibitions in this bill and in existing law.
The bill would immunize an interactive computer service or
access software provider from liability unless the service
or access provider intends to abet or to cause imminent
great bodily harm that is likely to occur, or threatens to
cause imminent great bodily harm to an elected or appointed
official.
This bill would extend the protections of this statute to
state administrative law judges, federal judges and federal
defenders, and members of the United States Congress,
United States Senate, and appointees of the President.
BACKGROUND
(more)
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AB 2238 (Dickerson, Chapter 621, Statutes of 2002) enacted
the Public Safety Officials Home Protection Act. It
created an advisory task force to determine how to protect
a public safety official's home information. The task
force, chaired by the Attorney General and comprised of
representatives from law enforcement, judges, district
attorneys and public defenders, state recorders and
assessors, and the business community involved in real
estate transactions, filed its report with the Legislature
in January 2004. Recommendation 15 of the report states:
"Legislation needs to be enacted to prohibit any person,
business or association from commercially posting a public
safety official's home address and telephone number on the
Internet after receiving a written confidentiality report."
AB 1595 was introduced as a response to that
recommendation. However the bill has just been amended to
remove the requirement that the posting or displaying of
information on the Internet web site be "for value,"
thereby removing the commercial use aspect of the
disclosure of the information.
Recent news articles about the killing of a judge in
Atlanta (March, 2005) and a judge's husband and mother in
Chicago highlight the need for limiting access to private
information about public officials and their families. In
April 2004, a disgruntled individual posted the addresses
and telephone numbers and other personal information of
hundreds of California police officers and prosecutors on
the Internet. In March 1999, a Los Angeles Superior Court
Commissioner and his wife were slain by a gunman waiting
inside their home. And in March 1998, an arrested person
in Los Angeles created a web site named killercop.com and
advertised a monetary reward for the home address and
telephone number of the police officer who arrested him.
Other web sites have sprung up on the Internet and then
closed down, but some persist. Among those web sites are:
http://killercop.com (while no longer operating, it
specified a cash reward for the home location of two
specified LAPD officers who arrested the domain
keeper);
http://justicefiles.org (no longer operating, this site
listed names, addresses, phone numbers and social
security numbers of police officers);
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http://paladium.net (this site is operating; it lists
information about state and federal government
officials and public safety officers, including their
home addresses);
http://www.zabasearch.com (this site is operating; it
provides home addresses and telephone numbers of
anyone.
This bill would authorize an "opt-out" scheme that named
classes of elected and appointed officials could use to
avoid posting or display of their home addresses or
telephone numbers on the Internet. A competing bill, AB
1035 (Spitzer) will also be heard in committee today.
CHANGES TO EXISTING LAW
Existing law , the Public Records Act (PRA), provides that
all records of state and local agencies are open and the
public has the right to inspect those records under
specified conditions. The PRA exempts specified records,
and other provisions of law exempt specified records from
the PRA requirement of open records. [Government Code
6250 et seq.]
Existing law , the PRA, prohibits a state or local agency
from posting on the Internet the home address or telephone
number of any elected or appointed official without first
obtaining the written permission of the elected official.
[ 6254.21(a).]
Existing law makes it a misdemeanor for a person to
knowingly post on the Internet the home address or
telephone number of any elected or appointed official, his
or her spouse or child, knowing that the information
concerns an elected or appointed official and intending to
cause imminent great bodily harm that is likely to occur,
or threatening to cause imminent great bodily harm to that
individual. A violation that leads to actual injury of the
official, his or her spouse or child, is prosecutable as a
misdemeanor or felony. [ 6254.21(b).]
Existing law makes the above acts under 6254.21
punishable under Penal Code 69, 76, and 422 as
misdemeanors or felonies. [6254.21(d).]
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This bill would prohibit a person, business or association
from: (1) posting or displaying on the Internet the home
address or telephone number of an elected or appointed
official, if that official has made a written demand that
the home address or telephone number not be disclosed; or
(2) soliciting the home address or telephone number of an
elected or appointed public official for the purpose of
posting or displaying the information.
The bill would immunize an interactive computer service or
access software provider from liability for violations of
the prohibitions against posting or display or against
soliciting for posting or display of an elected or
appointed official's home address or telephone number
unless the service or access provider intends to abet or to
cause imminent great bodily harm that is likely to occur or
threatens to cause imminent great bodily harm to an elected
or appointed official.
Existing law enumerates a list of elected and appointed
officials who are protected by the prohibition against the
posting of the official's home address and telephone number
on the Internet. [ 6254.21(c).]
This bill would add to this list state administrative law
judges, federal judges and federal defenders, and members
of the United States Congress, United States Senate, and
appointees of the President.
COMMENT
1. Need for the bill
This bill was introduced at the behest of Judge Jim
Brandlin of the Los Angeles Superior Court.
The author states:
Californians deserve having the finest
individuals serve in government and as public
safety officers. Those who serve their fellow
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citizens should be able to work with the
confidence that they and their families are not
vulnerable to an attack at home because of their
occupation.
Anyone with internet access can find the home address
and telephone numbers of public safety and elected
officials. Those who serve their fellow citizens
should be able to do so without their families at home
becoming the target of intimidation or an attack.
Sadly, this threat is very real. To help keep this
information from the hands of criminals or aggrieved
individuals seeking revenge, AB 1595 would help
government and public safety officials keep their
personal home address and phone number private.
2. AB 1595: public posting or display prohibited only
after written demand of non-disclosure
Current law prohibits state or local agencies from
posting the home address or telephone number of an
elected or appointed official on the Internet without the
official's written permission. [ 6254.21(a).]
The provision is based on the general principle that
records collected and maintained by state and local
governments are public records, and that denial of access
to the information must be justified by the public
interest in nondisclosure outweighing the public
interest in its disclosure. However, specific records
are exempt from disclosure under the PRA, and records
containing personal private information are exempt. When
this statute was enacted, the intent was for the state
and local agencies to protect the information from
disclosure, making such information available only upon
written permission from the owner of the information.
The language of proposed subdivision (c)(1), however,
prohibits a person, business, or association from posting
or displaying on the Internet the home address or
telephone number of an elected or appointed official, if
that official has made a written demand to that person,
business or association that the information not be
disclosed. This is akin to an "opt-out" situation in the
sharing of consumer information by affiliated businesses.
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According to proponents of the bill, unlike the case
where the state or local agency has the information but
must shield it from public access rules, the scenario is
vastly different when it comes to information that is
voluntarily provided by these officials in ordinary
business transactions such as in real estate purchases.
Thus, AB 1595 prohibits only the public posting or public
display of the information, and using the definition of
"publicly post" and "publicly display" that the
Legislature adopted when it enacted Civil Code 1798.85
(SB 25, Bowen, Ch. 907, Stats. 2003).
Under the bill the onus will be on the elected or
appointed official to demand that the information (home
address or telephone number) not be displayed publicly or
posted publicly, unlike the case of state or local
agencies where the official's written permission would be
required prior to posting on the Internet. Obviously,
the written demand can only be made once the information
has already been provided to the person, business or
association and the possibility of Internet posting
surfaces. While not providing a great deal of new,
additional security to the officials, this ability to
demand in writing that the information not be disclosed
could provide an incremental increase in security for the
elected official and his or her family, in the same
manner that the Consumer Credit Reporting Agencies Act
that allowed individuals to request a "security freeze"
on their credit reports gave them some comfort.
Realistically, however, this would not help, for example,
the posting of home addresses or telephone numbers that
has occurred on the web sites mentioned in the
Background. In those cases, prosecution under Penal Code
Sections 69, 76, or 422 would be the recourse. [See
Comment 2.] The only thing that an elected or appointed
official could do, if this bill were enacted, would be to
make a written demand to the private owners/operators of
the live Internet site to cease and desist from the
public posting or public display of the home address or
telephone number.
Because this bill would amend the Public Records Act, the
process for enforcing its provisions (i.e., if the
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posting/displaying continues after the written demand is
made but not heeded) would be to file a petition for
declaratory relief in superior court, directing the
person, business, or association to terminate the public
posting or public display of the official's address or
telephone number and to pursue a contempt action if that
order is ignored. Or, the district attorney may
prosecute the person, business or association who posted
the information under Penal Code 69, 76, or 422.
Suggested amendment: Proposed subdivision (c)(1)
prohibits "posting" or "displaying" on the Internet the
specified information, but the same paragraph defines
"publicly post" and "publicly display." The word
"publicly" must be used with "post" and "display" in the
first part of the paragraph if this is to make sense.
3. Solicitation of information for the purpose of
violating 6254.21
Section 6254.21 makes it a misdemeanor to post the home
address or telephone number of an elected or appointed
official, or that of his or her spouse or child in
residence, when the person who is posting the information
knows that the information belongs to an elected or
appointed official and intends to cause or threatens to
cause imminent great bodily harm to the official. If
imminent great bodily injury does occur, the act may be
prosecuted as a misdemeanor or a felony. [ 6254.21(b).]
This act may also be prosecuted as a violation of Penal
Code 69 (attempt by threat or violence to deter a
public officer from discharging duties, punishable as a
misdemeanor/felony with fine, jail or prison term), Penal
Code 76 (threatening life or serious bodily injury to a
public official, staff, or immediate family, punishable
as a misdemeanor/felony with jail or prison term on first
offense, felony on the second and subsequent offenses),
or Penal Code 422 (threat to commit crime resulting in
death or bodily injury, punishable as a
misdemeanor/felony with jail or prison term).
[6254.21(e).]
AB 1595 would make solicitation of the home address or
telephone number of an elected or appointed official for
the purpose of violating 6254.21 also a violation,
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subject to the prosecution under Penal Code 69, 76 and
422, "or any other provision of law."
Suggested amendment: to avoid confusion, the
solicitation provision [proposed subdivision (c)(2)]
should stand alone as a separate subdivision, rather than
as part of subdivision (c), because the solicitation act
presumably would apply to subdivisions (a), (b), and
proposed (c)(1).
4. Interactive computer service and access software
providers are exempt from liability; conflict with AB
1035
a. ISPs exempt from liability
Proposed subdivision (d) of 6254.21 provides
interactive computer service and access software
providers immunity except in very limited
circumstances for the posting of home addresses or
telephone numbers of public officials. This provision
of the bill was requested by Yahoo! and Apple
Computers. The concern was that those entities that
merely supply the conduit for the posting or
displaying of the information on the user's page
should be immune from liability because they have
nothing to do with the contents of the web site or
webpage. Thus, under AB 1595, liability would attach
only if the interactive computer service or access
software provider, as defined in federal law, posted,
displayed, or solicited the information (home address,
telephone number) with intent "to abet or cause
imminent great bodily harm that is likely to occur or
threatens to cause imminent great bodily harm to an
elected or appointed official." It is almost
unfathomable how the service providers could be liable
under this provision, but the protection would be
there.
According to Yahoo! representatives, Yahoo! would
immediately suspend or withdraw services to a web site
that posts protected information such as the home
addresses or telephone numbers of these public
officials, were this bill enacted. They also said
they routinely do so now, if they are made aware of
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such violations.
b. Conflicting measure: AB 1035
AB 1595 conflicts with AB 1035 (Spitzer) which will be
heard by the committee today also. AB 1035 would make
it a crime for an Internet service provider such as
Yahoo! to host or to provide service to a person who
posts an official's home address or phone numbers on
the Internet, with intent to cause imminent great
bodily harm. AB 1035, at best, is ambiguous as to
whose intent to inflict great bodily harm is required
(the host, or the person whose web site is hosted),
and at worst, would create a strict liability crime.
AB 1035 also would provide an official whose home
address or phone number was disclosed on the Internet
with the requisite intent to cause great bodily harm a
cause of action to recover damages of every type.
5. Additional elected or appointed officials protected
This bill would expand the universe of persons protected
by the current statute and this bill.
The additions would be: state administrative law judges,
federal judges and federal defenders (federal prosecutors
are already covered), Members of the U.S. Congress, and
appointees of the President.
Suggested amendment: the bill names members of both the
U.S. Congress and U.S. Senate. Actually, the U.S.
Congress includes both the House of Representatives and
the U.S. Senate.
6. Proponents' arguments address earlier version of the
bill
All of the letters in support of this bill received by
staff referred to an earlier version of the bill that
prohibited the selling or trading for value on the
Internet of the home addresses or telephone numbers of
public officials. The last amendments to the bill (June
23, 2005) removed the "selling or trading for value"
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language and replaced it with the prohibition against
public posting and public displaying of the information.
Still, proponents make some strong arguments that could
justify the added protections this bill would give to
elected and appointed officials. For example, the
Judicial Council states, "[i]ncreased ability to access
home address information poses a threat to judges and
other public safety officials and their families. An
independent judiciary depends on a judge being able to
make decisions free from fear of retribution. This bill
would provide public safety officials with an important
tool to assist in protecting their family's privacy and
safety."
The California Public Defenders echo the judges'
concerns: "Public defenders often are the surrogates who
suffer abuse by persons who are aggrieved for one reason
or another, who are unable to or are fearful of striking
out at the real target of their anger. AB 1595 provides
some measure of privacy and therefore protection for the
public defender and his or her family, from stalking,
harassment or even violence. Recent events in this
country and state illustrate why such public servants who
are at special risk need the protection AB 1595 provides.
7. AB 1595 will be referred to Public Safety Committee
Because this bill would add solicitation of the elected
or appointed official's home address and telephone number
to the acts punishable under this bill and existing law,
this bill will also be heard by the Committee on Public
Safety.
Support: California State Sheriffs' Association; Los
Angeles District Attorney's Association; California
Judges Association; Peace Officers Research
Association of California (PORAC); California
Association of Highway Patrolmen (CAHP); Judicial
Council of California; California Public Defenders
Association (CPDA)
Opposition: None Known
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HISTORY
Source: Judge Jim Brandlin of the Los Angeles Superior
Court
Related Pending Legislation: AB 1035 (Spitzer) would also
amend Government Code 6254.21. See
Comment 9.
Prior Legislation: AB 2238 (Dickerson, Ch. 621, Statutes
of 2002) enacted subdivision (b) of 6254.21
and created the task force referred to in the
Background.
AB 2905 (Spitzer, Ch. 248, Statutes of 2004)
amended Penal Code 76 to include the
immediate family of the staff of specified
public officials within the class of persons
protected from threats of serious bodily
harm.
Prior Vote: Asm. Pub. Saf. (Ayes 6, Noes 0)
Asm. Flr. (Ayes 75, Noes 3)
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