BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 32
Assemblymember Lieu
As Amended June 17, 2009
Hearing Date: June 23, 2009
Government Code
GMO:jd
SUBJECT
Public Officials: Personal Information
DESCRIPTION
Under specified conditions, current law prohibits a person,
business, or association from publicly posting or displaying on
the Internet the home address or telephone number of identified
elected or appointed public officials, allows the public
official to make a written demand for the removal of the posting
and to seek an injunction, and imposes an award of damages for
the solicitation, sale, or trade of that information with intent
to cause imminent great bodily harm to the official or a
resident at the official's home address.
This bill would expand current law by:
(1) allowing an agent, as defined, of the public official whose
information was publicly posted or displayed to make the
written demand for the removal of the Internet posting of the
official's home address or telephone number;
(2) requiring a person or business that receives a written
demand from a covered public official or the official's
designated agent, within 48 hours of receiving the official's
or official's agent's written demand, to remove the official's
home address or telephone number from public display posted on
the Internet and to ensure it is not reposted on the same
Internet site, a subsidiary Internet site, or another site
maintained by the same person or business, or transferred to
another person, business or association; and
(3) authorizing a civil penalty of $1,000 for a violation of an
injunction or declaratory relief issued by a court ordering
removal of an official's home address or telephone number from
(more)
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an Internet site.
BACKGROUND
AB 2238 (Dickerson, Ch. 621, Stats. 2002) established the Public
Safety Officials Home Protection 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 stated the need for
legislation 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.
In response, the Legislature enacted AB 1595 (Evans, Chap. 343,
Stats. of 2005) to prohibit the posting or display of specified
elected and appointed officials' home address or telephone
number on the Internet and to allow these officials to obtain an
injunction against any person or entity that publicly posts or
displays the information on the Internet. It also allowed for
damages if the disclosure was made with intent to cause imminent
great bodily harm.
AB 32 imposes further restrictions and increases penalties on
the posting or display of a public official's home address or
telephone number.
CHANGES TO EXISTING LAW
1. Existing law provides that no state or local agency shall
post the home address or telephone number of any elected or
appointed official on the Internet without first obtaining the
written permission of that individual. (Gov. Code Sec.
6254.21(a).)
Existing law prohibits the public posting or display of
specified elected or appointed officials' home address or
telephone number on the Internet upon written demand by a
state constitutional officer, a mayor, or a member of the
Legislature or of a city council or of a board of supervisors,
describing a threat or fear for the safety of the official or
members of the official's household. This written demand is
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effective for four years. (Gov. Code Sec. 6254.21(c).)
Existing law permits specified elected or appointed officials
to seek an injunction against any person or entity that
publicly posts on the Internet the home address or telephone
number of that official. The court or jury that finds a
violation is required to grant declaratory or injunctive
relief, plus attorney's fees and court costs. (Gov. Code Sec.
6254.21(c)(E)(2).)
This bill would permit an elected or appointed official to
designate the official's employer or any voluntary
professional association of similar officials to act, on
behalf of that official, as that official's agent with regard
to making a written demand for the removal of the posted home
address or telephone number from the Internet site.
This bill would require a person, business, or association,
upon receiving the written demand of an elected or appointed
official or agent, to remove the official's home address or
telephone number from public display on the Internet within 48
hours of receipt of the written demand and to continue to
ensure that information is not reposted on the same Internet
site, any subsidiary site or other site maintained by the
recipient of the written demand, or transferred to another
person or entity.
2. Existing law states that no person shall knowingly post the
home address or telephone number of any elected or appointed
official, or of the official's residing spouse or child, on
the Internet knowing that person is 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 of this
subdivision is a misdemeanor. A violation of this subdivision
that leads to the bodily injury of the official, or his or her
residing spouse or child, is an alternate felony/misdemeanor.
(Gov. Code Sec. 6254.21(b); Penal Code Sec. 76(a).)
Existing law prohibits the solicitation, sale, or trading of
an elected or appointed official's home address or telephone
number with intent to cause imminent great bodily harm to the
official or a resident at the official's home address, permits
that official to bring an action in any court of competent
jurisdiction, and requires the court finding a violation to
award damages of up to three times the actual damages but in
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no case less than $4,000. (Gov. Code Sec. 6254.21(d)(1) and
(d)(2).)
This bill would authorize a court to impose a civil penalty of
$1,000 for any violation of an injunction or declaratory
relief issued by the court, ordering the removal of a public
official's posted home address or telephone number from the
Internet.
COMMENT
1. Stated need for the bill
The author states:
Over the past decade, many law enforcement officers, judges,
district attorneys, and public defenders have been threatened
or harmed at their homes. In particular, every murder of a
federal judge in the 20th century occurred at the federal
judge's home by assailants who were able to access the
victim's personal information. (Citation omitted.) Although
no central repository of information exists to catalog all
incidents of threats or violence, leading researchers link the
easy access of personal information about public safety
officials as a significant factor to consider in calculating
threat assessment. (Citation omitted.)
? AB 32 seeks to resolve frequent reposting of information by
establishing a duty on the data vendor to maintain a
suppression list, cross-reference new information against the
list and prohibit any transfers of that information to another
website.
? AB 32 builds upon the current opt-out for public safety
officials who do not want their home address or telephone
number posted on the Internet. Specifically, this bill
prescribes:
-- Data vendors must immediately remove the official's
information after receiving
the written demand;
-- Data vendors ensure that the information is not
re-posted on their website or any
subsidiary website;
-- Prohibits a data vendor from transferring the
information to another website or
data vendor; and
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-- Allows the public safety official to designate their
employer or a voluntary
organization of similar officials as an agent to act on
behalf of the official under the opt-out provisions.
It is important to note that AB 32 would impose a civil penalty
of $1,000 for a violation of an injunction or declaratory relief
issued by the court, ordering the removal of the home address or
telephone number of a protected official from the Internet.
2. AB 32 would impose $1,000 civil penalty for violation of
injunction or declaratory relief
Current law prohibits a person, business, or association to
solicit, sell, or trade on the Internet the home address or
telephone number of an elected or appointed official with the
intent to cause imminent great bodily harm to the official or to
any person residing at the official's home address. (Gov. Code
Sec. 6254.21(d)(1).) It also provides that, notwithstanding any
other provision of law, an official whose home address or
telephone number is solicited, sold, or traded with intent to
cause imminent great bodily harm to the official or to a
resident at the official's home address may bring an action for
damages in any court of competent jurisdiction and, if the court
or jury finds a violation, the court or jury shall award damages
of up to three times the actual damages but in no case less than
$4,000. (Gov. Code Sec. 6254.21(d)(2).) This would be in
addition to the required award of attorney's fees and costs if
an injunction or declaratory relief is granted, under Government
Code Section 6254.21(c)(2).
These penalties are all related to acts requiring the intent to
cause imminent great bodily harm to an official or to any person
residing at the official's home.
Government Code Section 6254.21 also permits an official to seek
an injunction or declaratory relief for an order to remove the
posted home address or telephone number of the official, if
written demand has been made for the removal and the recipient
of the demand has not removed the information as requested. If
the court issues an injunction or declaratory relief, it is also
required to award attorney's fees and costs.
Proponents of AB 32 state that current law does not provide
sufficient disincentives for a person posting public officials'
home addresses and telephone numbers to cease and desist from
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posting or displaying the protected private information. Thus,
AB 32 contains a civil penalty of $1,000 for a violation of an
injunction ordering the removal of the information from the
Internet site. Statutory penalties of $1,000 for violations of
specified acts are not unusual and may be found in many codes of
the state. The statute of limitations for seeking a statutory
penalty is one year. Thus, for repeated violations, a public
official may end up seeking a large enough award against someone
who has been ordered to take down an Internet site or to remove
specific names, home addresses, and phone numbers from the
Internet site, to provide the disincentive that this bill seeks
to create for the further protection of public officials and
their families.
While there has been no opposition to the bill so far, it could
be because under existing law and this bill, an interactive
computer service or access software provider is not liable for
any violation of Section 6254.21 unless it intends 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. These Internet service providers opposed
the original legislation (AB 1595, Evans, 2005) until they were
exempted from that bill's penalties except for intentional acts.
The imposition of a $1,000 civil penalty for each violation of
an injunction ordering removal of the information from an
Internet site and refraining from reposting on the same,
subsidiary, or related site would significantly improve the
enforceability of Section 6254.21.
3. "Opt-out" by written demand and taking enforcement action
may be made through an employer or voluntary professional
association of similar officials
The author asserts that while California Government Code Section
6254.21 provides for privacy of home addresses and telephone
numbers on the Internet for public safety officials, prohibits a
public agency from posting that private information on the
Internet without the written consent of that official, and
prescribes that a public safety official may opt-out of having
their private information posted on any non-governmental
Internet site, violations continue to occur.
"Opting-out" of the posting of a public official's home address
or telephone number from an Internet site requires a written
demand from the official, and is effective for four years
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regardless of whether or not the official's term has expired
during that four-year period. Where the official is a state
constitutional officer, a mayor, a Member of the Legislature, a
city council, or a board of supervisors, the written demand must
state a threat or fear for the safety of that official or of any
person residing at the official's home address. (Gov. Code Sec.
6254.21(c)(1).)
According to the author, the problem with current law is that
data vendors have refused to allow agents of public safety
officials to opt-out under the provisions of Section 6254.21.
"These data vendors claim that the statute is silent with
respect to agents and their powers, [and] ultimately means (sic)
they will not accept their opt-out lists."
This bill would allow an elected or appointed official to
"opt-out" of the information posting through a written demand by
his or her employer or a "voluntary organization of similar
officials" (e.g., a police officers' association, a judges'
association, a county mayors' association, a police chiefs'
association). As is required for a written demand by a
constitutional officer, a mayor, a Members of the Legislature, a
city council member, or a member of a board of supervisors, this
written demand for all other officials, when issued by an agent,
would include a statement describing the threat or fear for the
safety of the official and persons residing at the official's
home address.
4. Internet service provider or data vendor to immediately
remove opted out information from Internet site and ensure
that information is not reposted or transferred to a
subsidiary site
AB 32 would require a person, business, or association that
receives a written demand pursuant to Section 6254.21 to remove
the official's home address or telephone number from public
display on the Internet within 48 hours of receipt of the
written demand.
The actual problem that AB 32 wishes to address, however, is the
reposting of the information after the removal from a specified
Internet site, or the transfer to another person or subsidiary
Internet site.
"? [O]ften, the opted-out information is reposted online prior
to its intended expiration. Data vendors will purchase public
information from a variety of sources including the county
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recorder's office and school alumni lists. The concern is that
when data vendors purchase the public information from a
different source, the public safety official's home address and
telephone number is posted once again on the Internet. While
existing statute allows for injunctive or declaratory relief to
prevent re-posting, it occurs so frequently that the court
system would be overly burdened with the amount of cases," the
author states.
Under AB 32, the person, business, or association that receives
a written demand for removal of the protected official's home
address or telephone number from public display on the Internet
shall "continue to ensure that this information is not reposted
on the same Internet site, a subsidiary site, or any other site
maintained by the recipient of the written demand." The bill
also prohibits the recipient of the written demand from
transferring the information to any other person, business, or
association through any other medium.
This provision would ensure that the original person or business
that posted the public official's private information on the
Internet would refrain from reposting the information or moving
it to another site related or linked to the original site. It
would not ensure that another person or entity who steals the
information from the original posting would not be able to
create a totally new and different site and post that
information.
It should be noted that under AB 32, any proven violation of an
injunction ordering removal of the information from the Internet
would carry a $1,000 penalty. To ensure that reposting or
transfer to another person or Internet site carries the same
penalty, a court's order should include restraining the offender
from doing those acts as well as removing the information
originally posted.
5. Arguments in support
There is no opposition to this bill. Almost all of those in
support of AB 32 extol the benefits of current law but express
the need for better enforcement.
Judge Brandlin of Los Angeles Superior Court, sponsor of this
bill, states:
Most Internet data vendors have been good corporate citizens
and have cooperated [in enforcing the opt-out rights of public
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officials], but some have not. Some Internet data vendors have
reposted removed information within weeks or even days,
placing the safety of our judges and their families at risk.
A few Internet data vendors have absolutely refused to remove
the information at the request of the Administrative Office of
the Courts - Office of Emergency Response and Security-and
have demanded that each judicial officer communicate their
individual demand directly with the vendor. This has created
a huge time-consuming burden upon individual judges and staff
to comply with these requirements.
There is a great economy of effort in permitting a willing
public safety officials' employer or professional association,
typically a single staff person, to perform this task for
their employees and officials rather than requiring all public
safety officials to have to individually identify all known
Internet data vendors and communicate with them directly.
As a matter of good public policy, it is better to have these
Internet data vendors (who make millions of dollars per year
selling this information) responsible for keeping the home
addresses and telephone numbers of requesting public safety
officials from being reposted rather than diverting the
attention and resources of the government to attempt to ensure
compliance with the law. Enhancing the remedies for a
violation of any of the provisions of the statute will also
assist in ensuring compliance by providing those companies
with a financial disincentive for disobeying the law.
Support : Judicial Council of California; County of Los Angeles
Sheriff Leroy Baca; Association for Los Angeles Deputy Sheriffs;
Riverside Sheriffs' Association; Los Angeles County District
Attorney Steve Cooley; Los Angeles County Police Protective
League; Sacramento County District Attorney Jan Scully;
California State Sheriffs' Association; Peace Officers Research
Association of California (PORAC); California Attorneys,
Administrative Law Judges and Hearing Officers in State
Employment (CASE); Los Angeles County Probation Officers Union;
Los Angeles Deputy Sheriffs, Inc.; American Federation of State,
County and Municipal Employees (AFSCME), AFL-CIO; California
District Attorneys Association; Los Angeles Police Protective
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League
Opposition : None Known
HISTORY
Source : Jim Brandlin, Judge of the Los Angeles County Superior
Court
Related Pending Legislation : None Known
Prior Legislation :
AB 2238 (Dickinson, Ch. 621, Stats. 2002). See Background.
AB 1595 (Evans, Ch. 343, Stats. 2005). See Background.
AB 1035 (Spitzer, 2005.) See Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Public Safety Committee (Ayes 7, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0) (Consent)
Assembly Floor (Ayes 77, Noes 0)
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