BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 22
                                                                  Page 1

          Date of Hearing:   March 31, 2009
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                  AB 22 (Torres) - As Introduced:  December 1, 2008
                       As Proposed to be Amended in Committee
           
           
           SUMMARY  :    Increases the maximum fines for those convicted of  
          feloniously tampering, interfering, damaging, and obtaining  
          unauthorized access to computer data and computer systems.   
          Specifically,  this bill  :  

          1)Provides that any person who 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 data is punishable by a fine not exceeding  
            $15,000, by imprisonment in the state prison for 16 months, 2  
            or 3 years, or by both that fine and imprisonment; or by a  
            fine not exceeding $5,000, by imprisonment in a county jail  
            not exceeding one year, or by both that fine and imprisonment.

          2)States that any person who 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 is punishable by a fine not exceeding  
            $15,000, by imprisonment in the state prison for 16 months, 2  
            or 3 years, or by both that fine and imprisonment; or by a  
            fine not exceeding $5,000, by imprisonment in a county jail  
            not exceeding one year, or by both that fine and imprisonment.

          3)Makes knowingly accessing and without permission adding,  
            altering, damaging, deleting, or destroying any data, computer  
            software, or computer programs which reside or exist internal  
            or external to a computer, computer system, or computer  
            network punishable by a fine not exceeding $15,000, by  
            imprisonment in the state prison for 16 months, 2 or 3 years,  
            or by both that fine and imprisonment; or by a fine not  








                                                                  AB 22
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            exceeding $5,000, by imprisonment in a county jail not  
            exceeding one year, or by both that fine and imprisonment.

          4)Provides that knowingly and without permission disrupting or  
            causing 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 is punishable  
            by a fine not exceeding $15,000, by imprisonment in the state  
            prison for 16 months, 2 or 3 years, or by both that fine and  
            imprisonment; or by a fine not exceeding $5,000, by  
            imprisonment in a county jail not exceeding one year, or by  
            both that fine and imprisonment.

          5)States that any person who knowingly and without permission  
            provides or assists in providing a means of accessing a  
            computer, computer system, or computer network that results in  
            a victim expenditure in an amount greater than $5,000, is  
            punishable by a fine not exceeding $15,000, by imprisonment in  
            the state prison for 16 months, 2 or 3 years, or by both that  
            fine and imprisonment; or by a fine not exceeding $5,000, by  
            imprisonment in a county jail not exceeding one year, or by  
            both that fine and imprisonment.

          6)Makes any person who knowingly and without permission accesses  
            or causes to be accessed any computer, computer system or  
            computer network that results in a victim expenditure in an  
            amount greater than $5,000 is punishable by a fine not  
            exceeding $15,000, by imprisonment in the state prison for 16  
            months, 2 or 3 years, by both that fine and imprisonment; or  
            by a fine not exceeding $5,000, by imprisonment in a county  
            jail not exceeding one year, or by both that fine and  
            imprisonment.

          7)Provides that any person who knowingly introduces any computer  
            contaminant into any computer, or computer system, or computer  
            network that results in injury, or for a second or subsequent  
            violation, by a fine not exceeding $15,000; by imprisonment in  
            a county jail not exceeding on year or in the state prison; or  
            by both that fine and imprisonment. 

          8)States that any person who 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  








                                                                  AB 22
                                                                  Page 3

            causes damage to a computer, computer system, or computer  
            network that results in injury, or for a second or subsequent  
            violation, by a fine not exceeding $10,000; by imprisonment in  
            a county jail not exceeding one year; or by both that fine and  
            imprisonment.

           EXISTING LAW  :

          1)Provides that any person who 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 data is punishable by a fine not exceeding  
            $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 $5,000, or by imprisonment in a  
            county jail not exceeding one year, or by both that fine and  
            imprisonment.  [Penal Code Section 502(d)(1)(A).]

          2)States that any person who 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 is punishable by a fine not exceeding  
            $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 $5,000, or by imprisonment in a  
            county jail not exceeding one year, or by both that fine and  
            imprisonment.  [Penal Code Section 502(d)(1)(A).]

          3)Makes knowingly accessing and without permission adding,  
            altering, damaging, deleting, or destroying any data, computer  
            software, or computer programs which reside or exist internal  
            or external to a computer, computer system, or computer  
            network punishable by a fine not exceeding $10,000 or by  
            imprisonment in the state prison for 16 months, 2 or 3 years,  
            or by both that fine and imprisonment, or by a fine not  
            exceeding $5,000, or by imprisonment in a county jail not  
            exceeding one year, or by both that fine and imprisonment.   
            [Penal Code Section 502(d)(1)(A).]

          4)Provides that knowingly and without permission disrupting or  
            causing the disruption of computer services or denies or  








                                                                  AB 22
                                                                  Page 4

            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 is punishable  
            by a fine not exceeding $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 $5,000,  
            or by imprisonment in a county jail not exceeding one year, or  
            by both that fine and imprisonment.  [Penal Code Section  
            502(d)(1)(A).]

          5)States that any person who knowingly and without permission  
            provides or assists in providing a means of accessing a  
            computer, computer system, or computer network that results in  
            a victim expenditure in an amount greater than $5,000, is  
            punishable by a fine not exceeding $10,000, or by imprisonment  
            in the state prison for 16 months, 2 or 3 years, or by both  
            that fine and imprisonment, or by a fine not exceeding $5,000,  
            or by imprisonment in a county jail not exceeding one year, or  
            by both that fine and imprisonment.  [Penal Code Section  
            502(d)(1)(A).]

          6)Makes any person who knowingly and without permission accesses  
            or causes to be accessed any computer, computer system or  
            computer network that results in a victim expenditure in an  
            amount greater than $5,000 is punishable by a fine not  
            exceeding $10,000, or by imprisonment in the state prison for  
            16 months, 2 or 3 years, or by both that fine and  
            imprisonment, or by a fine not exceeding $5,000, or by  
            imprisonment in a county jail not exceeding one year, or by  
            both that fine and imprisonment.  [Penal Code Section  
            502(d)(3)(C).]

          7)Provides that any person who knowingly introduces any computer  
            contaminant into any computer, or computer system, or computer  
            network that results in injury, or for a second or subsequent  
            violation, by a fine not exceeding $10,000, or by imprisonment  
            in a county jail not exceeding on year, or in the state  
            prison, or by both that fine and imprisonment.  [Penal Code  
            Section 502(d)(4)(B).]

          8)States that any person who 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  








                                                                  AB 22
                                                                  Page 5

            network that results in injury, or for a second or subsequent  
            violation, by a fine not exceeding $5,000, or by imprisonment  
            in a county jail not exceeding one year, or by both that fine  
            and imprisonment.  [Penal Code Section 502(d)(5)(B).]

          9)Creates an exemption to Penal Code Section 502(c) violations  
            for any person who accesses his or her employer's computer  
            system, network, program or data when acting within the scope  
            of lawful employment.  [Penal Code Section 502(h)(1).]

          10)Allows an exemption for a person using computer services  
            without permission and outside his or her employment if that  
            the acts do not cause an injury to any computer system, or  
            provided that the value of supplies used does not exceed $100.  
             [Penal Code Section 502(h)(2).]

          11)Requires the forfeiture of computer equipment where the  
            defendant:

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

             b)   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.

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

             d)   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.

             e)   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  








                                                                  AB 22
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               computer, computer system, or computer network.

             f)   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.

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

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

             i)   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.  [Penal  
               Code Section 502.01(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :    
           
           1)Author's Statement  :  According to the author, "AB 22 increases  
            the maximum fine for serious computer hacking offenses,  
            offenses which the law currently treats as wobblers.

          "The increase is significant, from a maximum of $10,000 per  
            offense to a maximum of $50,000 per offense.

          "I have myself been a victim of identity theft, as have many of  
            my constituents and - 
          perhaps - many of you. It is a crime that violates the sense of  
            personal security in a particularly insidious and painful way.  
             We need more effective deterrents. 

          "Computer hacking and related identity theft are crimes that  
            often have a motive of financial gain.  By significantly  
            increasing the maximum fine that a judge may impose on a  
            hacker, AB 22 is intended to provide a more substantial  
            deterrent to commission of these types of offenses without  
            imposing on the state the increased costs associated with  
            longer terms of incarceration.









                                                                  AB 22
                                                                  Page 7

          "The bill makes no change in the definition of computer hacking  
            crimes, and no change in the assessment of what constitutes a  
            more severe offense. It simply makes a conviction potentially  
            much more expensive for an offender."

           2)Background  :  According to information provided by the author,  
            "Computer hacking and related identity theft are crimes that  
            often have a motive of financial gain.  By significantly  
            increasing the maximum fine that a judge may impose on a  
            hacker, AB 22 is intended to provide a more substantial  
            deterrent to commission of these types of offenses without  
            imposing on the state the increased costs associated with  
            longer terms of incarceration."

           3)Penalty Assessments  :  Fines are subject to penalty  
            assessments.  Assuming a person is fined the maximum fine of  
            $10,000 under Penal Code Section 502, the following penalty  
            assessments would be imposed pursuant to the Penal Code and  
            the California Government Code:

            Base Fine:                         $10,000 

            Penal Code 1464 Assessment:             $10,000($10 for every  
            $10 in fines)
            Penal Code 1465.7 Assessment:                $  2,000(20%  
            surcharge)
            Penal Code 1465.8 Assessment:                $       20($20  
            fee per fine)
            Government Code 70372 Assessment:       $  5,000($5 for every  
            $10 in fines)
            Government Code 70373 Assessment                  $       30    
                    ($30 fee per each conviction)
            Government Code 76000 Assessment:       $  7,000 ($7 for every  
            $10 in fines)
            Government Code 7600.5 Assessment:           $  2,000($2 for  
            every $10 in fines)
            Government Code 76104.6 Assessment:          $  1,000($1 for  
          every $10 in fines)

            Total Fine with Assessments:            $37,050
            
            Penal Code Section 502 was enacted through SB 255 (Davis),  
            Chapter 1499, Statutes of 1988.  Assuming the fine is  
            increased under this bill and the maximum fine of $15,000 is  
            imposed upon the defendant, the new total fine would be as  








                                                                  AB 22
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            follows:

            Base Fine:                         $15,000 

            Penal Code 1464 Assessment:             $15,000($10 for every  
            $10 in fines)
            Penal Code 1465.7 Assessment:                $  3,000(20%  
            surcharge)
            Penal Code 1465.8 Assessment:                $       20($20  
            fee per fine)
            Government Code 70372 Assessment:       $  7,500($5 for every  
            $10 in fines)
            Government Code 70373 Assessment                  $       30    
                    ($30 fee per each conviction)
            Government Code 76000 Assessment:       $10,500 ($7 for every  
            $10 in fines)
            Government Code 7600.5 Assessment:           $  3,000($2 for  
            every $10 in fines)
            Government Code 76104.6 Assessment:          $  1,500($1 for  
            every $10 in fines)


            Total Fine with Assessments:       $55,550

           4)Argument in Support  :  According to the  California State  
            Sheriffs' Association  , "The advancement and 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.  Protection of the integrity of all types and  
            forms of computer systems is vital to the protection of the  
            privacy of individuals as well as to the well-being of  
            financial institutions, businesses, government agencies, and  
            others within this state that lawfully utilize those  
            computers.

          "AB 22 would provide that in the case of a violation involving  
            the computer, computer system, or computer network of a bank,  
            savings and loan, credit card issuer, or other financial  
            institution, the fine for the felony conviction would be  
            increased, not to exceed $50,000."

           5)Related Legislation  :

             a)   SB 20 (Simitian) adds requirements to any agency,  








                                                                  AB 22
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               person, or business that must issue a security breach  
               notification in the event that personal information has  
               been acquired by an unauthorized person due to a breach of  
               security an agency's computer system. SB 20 also requires  
               any agency, person, or business that must issue a security  
               breach notification to more than 500 California residents  
               pursuant to existing law to electronically submit that  
               security breach notification to the Attorney General.  SB  
               20 is pending hearing by the Senate Committee of  
               Appropriations.

             b)   AB 130 (Jefferies) increases prison time from 16 months,  
               2 or 3 years to two, three, or four years for those who  
               commit a second or subsequent offense of willfully  
               obtaining the personal identifying information of another  
               person, and using that information for any unlawful  
               purpose.  AB 130 will be heard by this Committee today.


           1)Prior Legislation  :


             a)   AB 49 (Simitian), Chapter 618, Statutes of 2004, created  
               the High Technology Crimes Task Force comprised of each  
               regional task force participating in the High Technology  
               Theft Apprehension and Prosecution Program.

             b)   AB 543 (Bogh), of the 2003-04 Legislative Session, would  
               have required restitution to victims of high-technology  
               crimes (including those under Penal Code Section 502) and  
               would have imposed a forensic laboratory analysis fee on  
               defendants, which would be deposited into the High  
               Technology Laboratory Trust Fund to defray costs incurred  
               for computer or other electronic analysis or computer  
               evidence related to investigating and prosecuting  
               high-technology crimes.  AB 543 as introduced was never  
               heard and was gutted and amended into an unrelated  
               provision.

             c)   SB 1386 (Peace), Chapter 915, Statutes of 2003, created  
               requirements for state agencies, persons or businesses that  
               conduct business in California that own or license  
               computerized data that includes personal information, to  
               disclose in specified ways, any breach of the security of  
               the data to any resident of California whose unencrypted  








                                                                  AB 22
                                                                  Page 10

               personal information was or is reasonably believed to have  
               been acquired by an unauthorized person.

             d)   AB 2232 (Oller), Chapter 634, Statutes of 2000,  
               increased the fine for persons who knowingly and without  
               permission access or cause to be accessed any computer,  
               computer system, or computer network that does not result  
               in injury from $250 to $1,000.  For damages less than  
               $5,000 for persons who knowingly and without permission  
               access or cause to be accessed any computer, computer  
               system, or computer network, AB 2232 created an alternate  
               felony/misdemeanor, punishable by a fine not exceeding  
               $10,000 and/or up to one year in county jail or a fine of  
               $10,000 and/or 16 months, 2 or 3 years in state prison.  AB  
               2232 also increased the fine from $250 to $1,000 for  
               persons who knowingly and without permission use the  
               Internet domain name of  another individual, corporation,  
               etc. in connection with sending email and thereby cause  
               damages to a computer, computer system or computer network.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Independent Bankers
          California Probation, Parole and Correctional Association
          California State Sheriffs' Association
          Privacy Rights Clearinghouse
          Sheriff, Alameda County
          Sheriff, Amador County
          Sheriff, Butte County
          Sheriff, Contra Costa County
          Sheriff, Mariposa County
          Sheriff, San Bernardino County
          Sheriff, Yolo County
          Undersheriff, Tuolumne County

           Opposition 
           
          None received
           

          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744