BILL ANALYSIS
SB 203
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Date of Hearing: June 22, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 203 (Harman) - As Amended: June 7, 2010
SUMMARY : Broadens the definition of "distribution" with
respect to obscene matter to include making available for
Internet access or possession. Specifically, this bill:
1)Defines "distribute" as transferring possession of, whether
with or without consideration, including making available for
access or possession over the Internet. "Distribute" does not
include the actions of a distribution entity, interactive
computer service, or internet service provider used by another
party to distribute the obscene matter or obscene live
conduct.
2)Provides that nothing shall permit an action against an
interactive computer service that is inconsistent with the
United States Code, or an action against an electronic
communication service or remote computing service that is
inconsistent with the United States Code.
3)Defines "interactive computer service" as any information
service, system, or access software provider that provides or
enables computer access by multiple users to a computer
server, including specifically, a service or system that
provides access to the Internet and such systems operated or
services offered by libraries or educational institutions.
4)Defines "electronic communication service" as any service
which provides to users thereof the ability to send or receive
wire or electronic communications
5)Defines "remote computing service" as the provision to the
public of computer storage or processing services by means of
an electronic communications.
EXISTING LAW :
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1)Defines "obscene matter" as matter, taken as a whole, that to
the average person, applying contemporary statewide standards,
appeals to the prurient interest, that, taken as a whole,
depicts or describes sexual conduct in a patently offensive
way, and that, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
a) If it appears from the nature of the matter or the
circumstances of its dissemination, distribution, or
exhibition that it is designed for clearly defined deviant
sexual groups, the appeal of the matter shall be judged
with reference to its intended recipient group.
b) In prosecutions under this chapter, if circumstances of
production, presentation, sale, dissemination,
distribution, or publicity indicate that matter is being
commercially exploited by the defendant for the sake of its
prurient appeal, this evidence is probative with respect to
the nature of the matter and may justify the conclusion
that the matter lacks serious literary, artistic,
political, or scientific value.
c) In determining whether the matter taken as a whole lacks
serious literary, artistic, political, or scientific value
in description or representation of those matters, the fact
that the defendant knew that the matter depicts persons
under the age of 16 years engaged in sexual conduct, is a
factor that may be considered in making that determination.
[Penal Code Section 311(a).]
2)Defines "matter" as any book, magazine, newspaper, or other
printed or written material, or any picture, drawing,
photograph, motion picture, or other pictorial representation,
or any statue or other figure, or any recording,
transcription, or mechanical, chemical, or electrical
reproduction, or any other article, equipment, machine, or
material. "Matter" also means live or recorded telephone
messages if transmitted, disseminated, or distributed as part
of a commercial transaction. [Penal Code Section 311(b).]
3)Defines a "person" to be any individual, partnership, firm,
association, corporation, limited liability company, or other
legal entity. [Penal Code Section 311(c).]
4)Defines "distribute" as transferring possession of, whether
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with or without consideration. [Penal Code Section 311(d).]
5)States that person who knowingly sends or causes to be sent,
or brings or causes to be brought, into California for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation
of information, data, or image, including, but not limited to,
any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated
image that contains or incorporates in any manner, any film or
filmstrip, with intent to distribute or to exhibit to, or to
exchange with, others, or who offers to distribute,
distributes, or exhibits to, or exchanges with, others, any
obscene matter, knowing that the matter depicts a person under
the age of 18 years personally engaging in or personally
simulating sexual conduct, shall be punished either by
imprisonment in the county jail for up to one year, by a fine
not to exceed $1,000, or by both the fine and imprisonment, or
by imprisonment in the state prison, by a fine not to exceed
$10,000, or by the fine and imprisonment. [Penal Code Section
311.1(a).]
6)Prohibits persons from knowingly sending or causing to be
sent, or brings or causes to be brought, into California for
sale or distribution, or in this state possesses, prepares,
publishes, produces, develops, duplicates, or prints any
representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any
other computer-generated image that contains or incorporates
in any manner, any film or filmstrip, with intent to
distribute or to exhibit to, or to exchange with, others for
commercial consideration, or who offers to distribute,
distributes, or exhibits to, or exchanges with, others for
commercial consideration, any obscene matter, knowing that the
matter depicts a person under the age of 18 years personally
engaging in or personally simulating sexual conduct, is guilty
of a felony and shall be punished by imprisonment in the state
prison for two, three, or six years, or by a fine not
exceeding $100,000, in the absence of a finding that the
defendant would be incapable of paying that fine, or by both
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that fine and imprisonment. [Penal Code Section 311.2(b).]
7)Provides that every person who knowingly sends or causes to be
sent, or brings or causes to be brought, into this state for
sale or distribution, or in this state possesses, prepares,
publishes, produces, develops, duplicates, or prints any
representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any
other computer-generated image that contains or incorporates
in any manner, any film or filmstrip, with intent to
distribute or exhibit to, or to exchange with, a person 18
years of age or older, or who offers to distribute,
distributes, or exhibits to, or exchanges with, a person 18
years of age or older any matter, knowing that the matter
depicts a person under the age of 18 years personally engaging
in or personally simulating sexual conduct, shall be punished
by imprisonment in the county jail for up to one year, or by a
fine not exceeding $2,000, or by both that fine and
imprisonment, or by imprisonment in the state prison. It is
not necessary to prove commercial consideration or that the
matter is obscene in order to establish a violation of this
subdivision. If a person has been previously convicted of a
violation of this subdivision, he or she is guilty of a
felony. [Penal Code Section 311.2(c).]
8)States that a person is guilty of sexual exploitation of a
child if he or she knowingly develops, duplicates, prints, or
exchanges any representation of information, data, or image,
including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser
disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated
equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip that
depicts a person under the age of 18 years engaged in an act
of sexual conduct. Every person who violates this section
shall be punished by a fine of not more than $2,000 or by
imprisonment in a county jail for not more than one year, or
by both that fine and imprisonment. If the person has been
previously convicted under this section or any section of this
chapter, he or she shall be punished by imprisonment in the
state prison. [Penal Code Section 311.3(a) and (d).]
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9)Provides that every person who knowingly possesses or controls
any matter, representation of information, data, or image,
including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser
disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated
equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip, the
production of which involves the use of a person under the age
of 18 years, knowing that the matter depicts a person under
the age of 18 years personally engaging in or simulating
sexual conduct, is guilty of a felony and shall be punished by
imprisonment in the state prison, or a county jail for up to
one year, or by a fine not exceeding $2,500, or by both the
fine and imprisonment. Every person who has been previously
convicted under this section is guilty of a felony and shall
be punished by imprisonment in the state prison for two, four,
or six years. [Penal Code Section 311.11(a) and (b).]
10)Punishes a person who, with knowledge that a person is a
minor, knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit by electronic
mail, the Internet, or a commercial online service, any
harmful matter, to a minor with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual
desires of that person or of a minor, and with the intent, or
for the purpose of seducing a minor, is guilty of a public
offense and shall be punished by imprisonment in the state
prison or in a county jail. [Penal Code Section 288.2(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently, Penal
Code Chapter 7.5 relative to child pornography completely
ignores peer-to-peer file transfers which is an increasingly
popular method of file-sharing over the internet. Pedophiles
make downloaded images of child sexual exploitation available
for distribution to others by virtue of enabling the 'share'
function in their peer-to-peer program, which makes those
images available to millions of people over the Internet.
"Prosecuting an individual who is distributing images of child
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sexual exploitation over the Internet requires proof of actual
distribution of the file from the suspect's computer. There
is currently no way to collect evidence of actual distribution
in a peer-to-peer file transfer case. Since the statute does
not specifically penalize making contraband material available
for access or distribution, this factual scenario turns what
would be a six-year felony, distributing child pornography
over the Internet for commercial consideration, into a simple
possession case, even though thousands of users may have
actually received that image.
"Proof that a suspect made downloaded images available for
distribution to others via peer-to-peer file transfer is
typically found in a forensic examination of a suspect's
computer. When a forensic examination shows that a suspect
possessed a particular image of child sexual exploitation, and
finds that the image is located in a 'shared' folder and that
the 'share' function of the particular peer-to-peer program is
enabled, that individual has made the image available for
distribution. Because measuring peer-to-peer traffic on the
Internet is so difficult, there is simply no way to tell how
many hundreds, thousands, or even millions of users actually
received that file.
"SB 203 protects California's children by ensuring that
pedophiles are punished for the distribution of child
pornography over the Internet."
2)Peer-to-Peer (P2P) Networks and the Transfer of Child
Pornography : P2P file-sharing programs represent a major
change in the way Internet users find and exchange
information. Under the traditional Internet client/server
model, access to information and services is accomplished by
interaction between client users who request services and
server providers of services, usually Web sites or portals.
Unlike this traditional model, the P2P model enables
consenting users or peers to directly interact and share
information with each other , without the intervention of a
server. A common characteristic of P2P programs is that they
build virtual networks with their own mechanisms for routing
message traffic. [Ripenau, Foster, and Iamnitchi, "Mapping
the Gnutella Network: Properties of Large Scale Peer-to-Peer
Systems and Implication for System Design," IEEE Internet
Computing, vol. 6, no. 1 (Jan.-Feb. 2002).]
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The availability of child pornography has dramatically increased
in recent years as it has migrated from printed material to
the World Wide Web, becoming accessible through Web sites,
chat rooms, newsgroups, and now the P2P file-sharing programs.
These programs enable direct communication between users,
allowing users to access each other's files and share digital
music, images, and video. According to the United States
General Accounting Office (GAO):
"Child pornography is easily found and downloaded from
peer-to-peer networks. In one search using 12 keywords known
to be associated with child pornography on the Internet, GAO
identified 1,286 titles and file names, determining that 543
(about 42 percent) were associated with child pornography
images. Of the remaining, 34 percent were classified as adult
pornography and 24 percent as nonpornographic. In another
search using three keywords, a Customs analyst downloaded 341
images, of which 149 (about 44 percent) contained child
pornography. These results are in accord with increased
reports of child pornography on peer-to-peer networks; since
it began tracking these in 2001, the National Center for
Missing and Exploited Children has seen a fourfold increase -
from 156 in 2001 to 757 in 2002. Although the numbers are as
yet small by comparison to those for other sources (26,759
reports of child pornography on Web sites in 2002), the
increase is significant." [GAO, File-Sharing Programs (Feb.
2003) Highlights.]
Experts have noted that most child pornography today is
distributed over the Internet. The Internet allows
essentially instantaneous distribution and sharing of child
pornography on a scale that could not be imagined 50 years ago
when child pornography laws were initially enacted. The
placement of child pornography in a file accessible to others
on a file-sharing or P2P network, e-mail newsgroup or interest
group essentially transfers possession of that material.
Those with access to the file can download the material and
store it on their own computers or transfer that material to
others. A person who makes child pornography accessible
through a file-sharing system has effectively distributed that
material to any person who has access to the shared files.
3)Is this Bill Necessary ? This bill defines "distribute" to
include "making [obscene matter] available for access or
possession over the Internet." (SB 203 Section 1.) The
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author has not referenced any prosecutorial problems under the
current definition of "distribute." As discussed above, there
have been 26,759 reports of child pornography on Web sites and
this was information obtained more than seven years ago.
There have been hundreds, if not thousands, of prosecutions
involving the distribution of obscene material online. The
plain meaning of the word "distribute" itself is simple: "to
give out or deliver." [Merriam-Webster Online Dict. (2010)
(as of
Feb. 10, 2010).] It is questionable whether there is a need
to further define such a straightforward term.
"Distribution", no matter the method, is still "distribution".
For example, if the term "distribute" did not include making
obscene material available via the Internet, the placement of
obscene material in a file accessible to others via the
Internet is still included under the existing obscenity
statutes. Penal Code Section 311.1(a) states that any " . . .
person who knowingly . . . publishes, [or] produces, any
representation of information, data, or image including but
not limited to, any film, photograph . . . computer hardware,
computer software, computer floppy disc, data storage media,
CD-ROM, or computer generated equipment, or any other
computer-generated image . . . with intent to distribute or to
exhibit to, or to exchange with, others, or who offers to
distribute, distributes, or exhibits to, or exchanges with,
others, any obscene matter, knowing that the matter depicts a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct, shall be punished either
by imprisonment in the county jail for up to one year, by a
fine not to exceed $1,000, or by both the fine and
imprisonment, or by imprisonment in the state prison, by a
fine not to exceed $10,000, or by the fine and imprisonment."
Under the current language of the statute, a person who
publishes obscene material via the Internet via a P2P site for
the purpose of exchanging or exhibiting with others is
included. The plain meaning of the word "publish" is "to make
generally known . . . to make public announcement of . . . to
disseminate to the public . . . to produce or release for
distribution
. . . . " [Merriam-Webster Online Dict. (2010)
(as of Feb. 10, 2010) emphasis added.]
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Penal Code Section 311.2(a) provides that " . . . every person
who knowingly . . . publishes
. . . any representation of information . . . included but not
limited to, any film, photograph
. . . computer hardware, computer software, data storage media,
CD-ROM, or computer-generated equipment or any other
computer-generated image . . . with the intent to distribute
or to exhibit to others, or who offers to distribute,
distributes, or exhibits to others, any obscene matter . . . "
without commercial consideration and " . . . offers to
distribute, distributes, [or] exhibits [the obscene matter] to
. . . a person 18 years or older . . . shall be punished by
imprisonment in the county jail for up to one year, or by a
fine not exceeding $2,000, or by both that fine and
imprisonment, or by imprisonment in the state prison." Again,
if a person is not considered to be distributing obscene
material by making it available online, he or she is certainly
publishing obscene material online and would be included under
current statute.
4)Argument in Support : According to the California Probation,
Parole and Correctional Association , "Sex offenders have the
ability to make images of child sexual exploitation available
for distribution to others on the internet by virtue of
enabling the 'share' function in their peer-to-peer program,
which makes those images available to million s of people, SB
203 remedies this evidentiary problem by amending the
definition of 'distribute,' which would allow prosecutors to
charge these offenders with a felony."
5)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ), "First the federal government is
quite well equipped to detect and to deal with those who do in
fact intentionally distribute such material. Existing law
defines 'distribute' as 'transfer possession of, whether with
or without consideration.' SB 203 expands the definition of
'distribute' to include 'making available for access or
possession of the Internet.' CACJ opposes this expansion of
the definition of 'distribute' because with the advent of peer
to peer networking, there may be millions of persons who own
computers that inadvertently make such material or portions
thereof available for access or possession over the Internet.
Warnings have been issued by media and official sources about
the hazards of peer to peer networking. The consequences of
indiscretionate use can include identity theft as well as
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inadvertent receipt and distribution of unwanted depictions
including child pornography.
"Recent experience here and abroad with 'Operation Avalanche'
and 'Operation Ore' has shown the potential for indiscriminate
prosecutions of thousands of innocent persons whose only
crimes were failure to effectively protect themselves from
internet predation. Expansion of the definition of
'distribute' in Penal Code Section 311 would create and entire
class of Californians who may have their entire lives ruined,
simply because they signed up for an online peer to peer
network, without understanding all that such entails, or how
to protect themselves from inadvertent receipt and the
automated distribution default settings in most, if not all
peer to peer programs. This sort of strict liability law is
unnecessary and dangerous to the well being of all
Californians who legitimately own and use computers online."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Peace Officers' Association
California's Political Action Committee for Animals
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Child Abuse Prevention Council of Contra Cost County
Crime Victims United of California
District Attorney, Tulare County
San Bernardino County Office of the Sheriff
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744