BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1389 (Corbett) 9
As Amended April 16, 2012
Hearing date: April 24, 2012
Penal Code
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CRIME DATA:
MISUSE OF PRIVATE INFORMATION GATHERED FROM THE INTERNET
HISTORY
Source: Los Angeles County Sheriff
Prior Legislation: SB 1814 (Oropeza) Ch. 515, Stats. 2004
Support: Alameda County District Attorney's Office
Opposition:California Law Enforcement Association of Records
Supervisors
KEY ISSUES
SHOULD THE ATTORNEY GENERAL DIRECT LAW ENFORCEMENT TO COLLECT DATA
ABOUT CRIMES COMMITTED THROUGH MISUSE OF PRIVATE INFORMATION
GATHERED FROM THE INTERNET?
SHOULD THE DEPARTMENT OF JUSTICE OBTAIN, COLLECT AND PUBLISH THE
DATA AND RELATED INFORMATION ABOUT THESE CRIMES AND MAKE
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RECOMMENDATIONS FOR LIMITING THEM?
PURPOSE
The purposes of this bill are 1) to provide that the Attorney
General shall direct law enforcement agencies to collect data
about, and description of, crimes committed through misuse of
private information gathered from the Internet; 2) to provide
that the Attorney General shall consider use of a form or
check-box for collecting such data; 3) to direct the Department
of Justice (DOJ), in consultation with the Office of Privacy
Protection, to survey a wide range of law enforcement personnel
and prosecutors about the collected material, including arrest
information and presentence reports; 3) to provide that DOJ
shall determine how local law enforcement collects the
information; and 4) to provide that DOJ shall publish on its
Website the information about criminal misuse of private
information and shall make recommendations for reducing criminal
use of information gathered from the Internet.
Existing law directs the California Department of Justice to
prepare a report containing "the criminal statistics of the
preceding calendar year" and to present reports on special
aspects of criminal statistics. The report shall be presented
to the Governor and the Attorney General shall distribute copies
of the annual report to all criminal justice officials and
generally for public enlightenment. (Pen. Code � 13010.)
This bill provides that the Attorney General shall direct local
law enforcement agencies to collect data about, and descriptions
of, crimes committed through misuse of private information
gathered from the Internet.
This bill provides that the Attorney General shall consider use
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of a form or check-box to increase the collection and
availability of such data.
This bill directs the Department of Justice (DOJ), in
consultation with the Office of Privacy Protection, to survey a
wide range of law enforcement personnel and prosecutors about
the crimes committed through misuse of private information
gathered from the Internet. The surveys shall include arrest
information and information from presentence reports.
This bill provides that the survey shall include explanations
about how local law enforcement collects the information.
This bill provides that DOJ shall publish on its Website the
information about criminal misuse of private information. DOJ
shall include examples of misuse of private information. DOJ
shall also make recommendations for reducing criminal use of
information gathered from the Internet.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
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standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
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79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Widespread use of, and access to, the Internet has
changed how criminals commit crimes, especially when
it comes to minors. Evidence abounds that criminals
use the Internet to steal personal identifying
information or to start and develop inappropriate
relationships with minors that lead to sex crimes. Law
enforcement and policymakers, however, have only
anecdotal information on this growing trend of
Internet-generated crimes.
Without solid, standard data on crimes involving
misuse of private information gathered through the
Internet, it's impossible to accurately assess the
extent of the problem and what needs to be done about
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it. SB 1389 will provide the data to determine
enforcement and budgetary priorities to ensure the
privacy and safety of California and its children.
2. Tracking of Cargo Theft - Contrast with this Bill
In 2004, the Legislature enacted a law defining the crime of
grand theft of cargo. (SB 1814 (Oropeza) Ch. 515; Pen. Code �
487h.) Cargo theft differs from grand theft generally only in
the type of property covered by the law. Specifically defining
cargo theft allows the Department of Justice to track and
calculate the prevalence of cargo thefts in the state, rather
than having such crimes counted in the general category of grand
theft.
The cargo theft bill was sponsored by the Los Angeles County
Sheriff, the law enforcement agency with jurisdiction over the
Port of Los Angeles. Thefts at the port had become a serious
problem. Further, the large volume of cargo passing through the
port raised concerns about terrorism. Federal grants were
available for efforts to stem cargo theft. However, without
separate tracking of cargo theft incidents, law enforcement
responsible for port security could not demonstrate the extent
of the problem or their successes in arresting cargo theft
perpetrators.
The enactment of Penal Code Section 487h effectively provided
that data on cargo theft would be simply and regularly kept and
analyzed.
Cargo theft crimes are generally committed within a relatively
limited physical space - a major port and its environs - and the
crimes are investigated by a relatively small group of law
enforcement officers. The law enforcement officers who
prosecute these crimes would directly benefit from charging
defendants with cargo theft, as federal grants are given to
fight such crimes.
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As noted in Comment # 3, many crimes are committed through
misuse of private information and many different law enforcement
agencies investigate these crimes. Unlike in cargo theft, the
crime for which the defendant is arrested would not establish
that he or she misused private information gathered from the
Internet. Further, this bill does not appear to include any
direct incentive for law enforcement to diligently collect data
about misuse of private information.
3. Use of a Form or Checkbox to Track Crimes Committed through
Misuse of Private Information Gathered over the Internet
The bill directs the Attorney General to "consider use of a form
or checkbox to increase the availability of information sought"
pursuant to this bill. The author has informed Committee staff
that the purpose of this provision is to ease the burden on law
enforcement and prosecutors in gathering data about misuse of
private information. The author noted that the incidence and
character of hate crimes is tracked through the use of a
relatively simple form that has been developed by the Attorney
General. The author believes that a similar form could be used
to efficiently collect information about criminal misuse of
private information gathered through the Internet.
The hate crime statutes are relatively narrow. (Pen. Code �
422.55 et seq.) Hate crime allegations are not commonly filed.
District attorneys may assign specific prosecutors to handle
hate crimes, many of which involve sensitive issues of race,
ethnicity, religion and sexual orientation. Intense public
interest in these crimes would help assure that they would be
tracked and analyzed. Further, as with cargo theft, a hate
crime involves specific statutory elements that are
automatically included in criminal records databases.
Because misuse of information gathered from the Internet is
widespread, collection of such data should be made as simple as
possible to ease the burden on law enforcement and prosecutors.
The author has expressed a willingness to consider ideas to make
the task of law enforcement easier and more efficient in this
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regard.
WOULD A FORM OR CHECKBOX ALLOW LAW ENFORCEMENT AND PROSECUTORS
TO EASILY AND EFFICIENTLY COLLECT INFORMATION ABOUT MISUSE OF
INFORMATION GATHERED THROUGH THE INTERNET?
4. Technical Correction
The bill includes a grammatical error in a provision concerning
material DOJ shall publish about how misused private information
was obtained and how it was misused. The bill states obtained in
the present tense - "obtain." This error should be corrected.
(c) The Department of Justice shall publish on the department's
Internet Web site the information obtained pursuant to this
section. The published information shall include examples of how
the private information was obtain and how it was misused, the
amounts and types of criminal activity that were generated, and
recommendations of how to reduce Internet-related criminal
activity and protect vulnerable populations.
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