Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another person, or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose.

This bill would apply those jurisdictional provisions to the misdemeanors described above.

Existing law details procedures for a governmental entity to gather specified records from a provider of electronic communication service or a remote computing service by search warrant. Existing law specifies that no notice is required to be given to a subscriber or customer by a governmental entity receiving records pursuant to these procedures.

This bill would additionally authorize a governmental entity to use those procedures to gather the contents of communications between the subscriber and the service provider. The bill would require a search warrant used under those procedures to be limited to only that information necessary to achieve the objective of the warrant, as specified. The bill would require information obtained through the execution of a search warrant pursuant that is unrelated to the objective of the warrant to be sealed and not be subject to further review without an order from the court. The bill would require the governmental entity to provide a specified notice to the customer or subscriber upon receipt of the requested records. The bill would authorize a delay of that notice in 90-day increments if there is reason to believe notification would may have an adverse effect, as defined.

Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another person, or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose.

This bill would apply those jurisdictional provisions to the misdemeanors described above.

Existing law details procedures for a governmental entity to gather specified records from a provider of electronic communication service or a remote computing service by search warrant. Existing law specifies that no notice is required to be given to a subscriber or customer by a governmental entity receiving records pursuant to these procedures.

This bill would additionally authorize a governmental entity to use those procedures to gather the contents of communications between the subscriber and the service provider. The bill would require a search warrant used under those procedures to be limited to only that information necessary to achieve the objective of the warrant, as specified. The bill would require information obtained through the execution of a search warrant pursuant that is unrelated to the objective of the warrant to be sealed and not be subject to further review without an order from the court. The bill would require the governmental entity to provide a specified notice to the customer or subscriber upon receipt of the requested records. The bill would authorize a delay of that notice in 90-day increments if there is reason to believe notification would may have an adverse effect, as defined.

Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another person, or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose.

This bill would apply those jurisdictional provisions to the misdemeanors described above.

Existing law details procedures for a governmental entity to gather specified records from a provider of electronic communication service or a remote computing service by search warrant. Existing law specifies that no notice is required to be given to a subscriber or customer by a governmental entity receiving records pursuant to these procedures.

This bill would additionally authorize a governmental entity to use those procedures to gather the contents of communications between the subscriber and the service provider. The bill would require a search warrant used under those procedures to be limited to only that information necessary to achieve the objective of the warrant, as specified. The bill would require information obtained through the execution of a search warrant pursuant that is unrelated to the objective of the warrant to be sealed and not be subject to further review without an order from the court. The bill would require the governmental entity to provide a specified notice to the customer or subscriber upon receipt of the requested records. The bill would authorize a delay of that notice in 90-day increments if there is reason to believe notification would may have an adverse effect, as defined.

Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another person, or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose. Existing law authorizes issuance of a search warrant on various grounds, including when the property or things to be seized consist of evidence that tends to show possession of matter depicting sexual conduct of a person under 18 years of age.

This bill would apply those jurisdictional and search warrant provisions to the misdemeanors described above.

Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another person, or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose. Existing law authorizes issuance of a search warrant on various grounds, including when the property or things to be seized consist of evidence that tends to show possession of matter depicting sexual conduct of a person under 18 years of age.

This bill would apply those jurisdictional and search warrant provisions to the misdemeanors described above.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1310

Author:(Gatto)

As Amended Ver:July 7, 2015

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Expands jurisdiction for crimes where a person intentionally distributes an image(s) of intimate body parts or sexual acts of another person, were it was agreed that the image(s) would remain private, causing emotional distress. Also called "revenge porn." Allows law enforcement to use a search warrant to get the contents of communications between a customer and service provider.

The Senate amendments limit the jurisdictional language of the bill to crimes involving "revenge porn."

EXISTING LAW:

1. Specifies that except as provided, when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.

2. Allows jurisdiction of a criminal action for identity theft, to include the county where the theft of the personal identifying information occurred, the county in which the victim resided at the time the offense was committed, or the county where the information was used for an illegal purpose.

3. Specifies that if multiple offenses of unauthorized use of personal identifying information, either all involving the same defendant or defendants and the same personal identifying information belonging to the one person, or all involving the same defendant or defendants and the same scheme or substantially similar activity, occur in multiple jurisdictions, then any of those jurisdictions is a proper jurisdiction for all of the offenses.

4. Allows jurisdiction to extend to all associated offenses connected together in their commission to the underlying identity theft offense or identity theft offenses.

5. Specifies that when charges alleging multiple offenses of unauthorized use of personal identifying information occurring in multiple territorial jurisdictions are filed in one county pursuant to this section, the court shall hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed. The district attorney filing the complaint shall present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Requires that in determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether or not the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hardship to, the victim and witnesses.

7. Two or more offenses connected together in their commission or in the same class of crimes or offenses may be joined in one accusatory pleading.

8. States that a provider of electronic communication service or remote computing service, as specified, shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, when the governmental entity is granted a search warrant.

9. Specifies that a governmental entity receiving subscriber records or information under this section is not required to provide notice to a subscriber or customer.

10. Allows a court issuing a search warrant, as specified, on a motion made promptly by the service provider, to quash or modify the warrant if the information or records requested are unusually voluminous in nature or compliance with the warrant otherwise would cause an undue burden on the provider.

11. States that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the peace officer.

AS PASSED BY THE ASSEMBLY, this bill:

1. Expanded the jurisdiction of a criminal action for specified conduct, including "revenge porn" and peeping with a recording device, to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

2. Allowed prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

3. Authorized jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

4. Required the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county.

5. Required the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Required the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hard ship to, the victim and witnesses.

7. Required the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim's residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice.

8. Stated that a provider of electronic communication service or remote computing service, as specified, shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, as specified.

9. Required that the search warrant be limited to only that information necessary to achieve the objective of the warrant, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.

10. Specified that information obtained through the execution of a search warrant pursuant to this section that is unrelated to the objective of the warrant shall be sealed and not subject to further review without an order from the court.

11. Stated that a governmental entity receiving subscriber records or information under this section is required to provide notice to a subscriber or customer upon receipt of the requested records. This notification may be delayed by the Court, in 90-day increments, upon showing that there is reason to believe that notification of the existence of the search warrant may have an adverse result.

12. Stated that upon expiration of the period of delay of notification, if any, the governmental entity shall provide written notice, by regular mail or email, to the subscriber or customer, a copy of the process or request together with notice that:

    1. Stated with reasonable specificity the nature of the law enforcement inquiry; and

    2. Informed such customer or subscriber

    3. That information maintained for such customer or subscriber by the service provider named in such process or request was requested by that governmental authority and supplied to that governmental authority, and the date on which the request and supplying took place;

       1. That notification of such customer or subscriber was delayed, if notice was delayed; and

       2. What court issued the order pursuant to which that delay was made; and

       3. A copy of the written inventory of the property taken that was provided to the court pursuant to Penal Code Section 1537.

13. Provided that notice need not be provided if it would do any of the following:

    1. Endangering the life or physical safety of an individual;

    2. Flight from prosecution;

    3. Destruction of or tampering with evidence;

    4. Intimidation of potential witnesses; or

    5. Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Expanded jurisdictional authority: Potential cost savings in judicial, prosecutorial, and defense counsel resources to the extent the expanded jurisdictional authority eliminates the need to conduct separate proceedings in more than one county.

2. Noticing requirements: Potential minor to moderate increase in local costs, potentially in excess of $50,000 statewide, to local law enforcement agencies for those noticing provisions in the bill that exceed requirements under existing state and federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.

COMMENTS: According to the author, "It is essential that we protect our communities from criminals who exploit and violate their victims’ privacy and then 'hide in plain sight' behind computer screens and jurisdictional technicalities. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn’t be allowed to use legal technicalities as a shield against prosecution. AB 1310 will give law enforcement the necessary tools to investigate and prosecute cyber exploitation cases by allowing a case to be prosecuted in the jurisdiction where the victim resides and allowing search warrants to be issued for the timely investigation of cyber exploitation crimes."

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0001822

 THIRD READING  

Bill No: AB 1310

Author: Gatto (D)

Amended: 7/7/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/30/15

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

ASSEMBLY FLOOR: 79-0, 5/14/15 - See last page for vote

SUBJECT: Disorderly conduct: unlawful distribution of image

SOURCE: Attorney General of California

DIGEST: This bill provides that jurisdiction for trial of the crime of distribution of a sexual image in violation of an agreement that the image shall remain private and (cyber sexual exploitation) shall include the county in which the offense occurred, the county in which the victim resided at the time of the offense, or the county in which the intimate image was used for an illegal purpose; provides that where the same defendant or defendants commit cyber sexual exploitation crimes in more than one county, and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county; provides that a search warrant for electronic communications and records can include communications between a service provider and a customer, as specified; and specifies procedures, standards and limitation for obtaining and serving search warrants for electronic communications and computer service information.

ANALYSIS:

Existing law:

1. Provides that a defendant who intentionally distributes the image of the intimate body part of another identifiable person, or an image of the person engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation involving the person depicted, and the defendant and the person depicted agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress is guilty of disorderly conduct, a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. For a second or subsequent conviction, or where the victim is a minor, the maximum jail term and fine is one year and $2,000 respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)

2. Includes the following definitions:

1. “Distribution” means that the defendant personally distributed the image, or arranged, requested, or intentionally caused another person to distribute that image; (Pen. Code § 647, subd. (j)(4)(B).)

2. "Intimate body part" means the genitals, anus, and in the case of a female, any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (Pen. Code, § 647, subd. (j)(4)(C).)

3. Provides that distribution of an intimate image in violation of a privacy agreement is not a crime if any of the following applies:

1. The distribution is made in the course of reporting an unlawful activity.

2. The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.

3. The distribution is made in the course of a lawful public proceeding. (Pen.Code, § 647, subd. (j)(4)(D).)

4. Provides that it is an alternate felony-misdemeanor for a person to willfully obtain the personal identifying information of another person and to use such information to obtain, or attempt to obtain, credit, goods, or services in the name of the other person without consent. A felony sentence for identity theft is to be served in a county jail pursuant to Penal Code Section 1170, subdivision (h), unless the defendant is disqualified from a jail term because he or she has suffered a serious felony conviction or is required to register as a sex offender. (Pen. Code § 530.5, subd. (a).)

5. Defines "personal identifying information" as a name, address, mother's maiden name, place of employment, date of birth, unique biometric data, facial scan, or other unique physical representation or data including and numerous others. (Pen. Code § 530.55.)

6. Provides that the proper jurisdiction – venue – for a crime is in a court in the jurisdiction where the crime was committed and that when a crime is committed partly in one county and party in another, trial can be held in either county. (Pen. Code §§ 777 and 781.)

7. Provides that charges of identity theft can be filed in the county where the theft of the personal information occurred or the county where the information was used illegally. Where multiple identity theft crimes involving the same defendant and the same victim occur in multiple jurisdictions, any one of those jurisdictions is a proper jurisdiction for trial of all charges. (Pen. Code § 786, subd. (b)(1).)

8. Provides that where multi-county identity theft crimes involving the same defendants and the same victim are filed in a single county, the court shall determine if that county is the proper place for trial, or whether some charges should be filed in another county, as specified. (Pen. Code § 786, subd. (b)(2).)

9. Provides that a search warrant may be issued upon any of the following grounds:

1. The property was stolen or embezzled;

2. The property was used as to committing a felony;

3. A person possesses the property with the intent to commit a crime, or the property is being held for purpose of concealing them or preventing them from being discovered;

4. The property or things to be seized consist of any item or evidence that tends to show that a felony has been committed;

5. The property consists of evidence of sexual exploitation of a child or possession of child pornography;

6. There is a warrant to arrest a person;

7. A provider of electronic communication or remote computing service has records or evidence showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are possessed by any person with the intent to commit a misdemeanor, or for the purpose of concealment;

8. The things to be seized include evidence of failure secure workers compensation;

9. The property includes a firearm or deadly weapon and specified circumstances related to domestic violence, examination of a person's mental condition; protective orders, apply;

10. The information to be received from the use of a tracking device tends to show a felony or misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code ;

11. A driving under influence suspect has refused to submit or complete, a blood test as required, as limited and specified; or

12. The property is a firearm or ammunition and a gun violence restraining order applies. (Pen. Code § 1524, subd. (a)(1)-(14).)

10. Provides that the property seized in a search warrant may be taken from any place, or from any person in whose possession the property or things may be. (Pen. Code, § 1524, subd. (b).)

11. Provides that when the property or things constitute evidence of identity theft, the warrant may authorize a search in another county if the person whose identifying information was taken or used resides in the same county as the issuing court. (Pen. Code § 1524, subd. (j).)

12. States that a provider of an electronic communication or remote computing shall, pursuant to a warrant, disclose to a prosecuting or investigating agency the name, address, telephone number or subscriber identity, billing records and length and types of services. (Pen. Code §§ 1524.3, subds. (a)-(b).)

13. Allows a court issuing a search warrant as to an electronic communication or remote computing service, to grant a motion to quash or modify the warrant if the records sought are unusually voluminous or compliance would cause an undue burden on the provider. (Pen. Code§ 1524.3, subd. (c).)

14. States that a provider of electronic communication or remote computing services, upon the request of a peace officer, shall take all necessary steps to preserve records and evidence in its possession pending the issuance of a warrant or through a written request and affidavit declaring an intent to file a warrant. Records shall be retained for a period of 90 days, with a 90-day extension upon a renewed request. (Pen. Code § 1524.3, subd. (d).)

This bill:

1. Expands the jurisdiction of trial for unauthorized distribution of a sexual image to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

2. Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

3. Requires the court to determine the proper place of trial, as specified.

4. Requires the district attorney filing the complaint to show that the district attorney in each county where the charges could have been filed has agreed that the matter should proceed in the county of filing.

5. Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim’s residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice

6. States that a provider of electronic communication service or remote computing shall disclose to the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, in addition to the subscriber records, and service and billing information allowed under current law.

7. Requires that the search warrant be limited to information necessary to achieve the objective of the warrant, including by specifying the targeted individuals or accounts, applications or services, the types of information, and the time periods covered by the warrant.

8. Specifies that information obtained through the execution of the warrant pursuant that is unrelated to the objective of the warrant shall be sealed and not subject to further review without a court order.

9. Requires notice to a subscriber or customer upon receipt of the records by the governmental entity that obtained the warrant.

10. Authorizes the court to delay notification, in 90-day increments, upon showing that there is reason to believe that notification of the warrant may have an adverse result, including: endangering someone’s life or safety , flight from prosecution, destruction of or tampering with evidence, intimidation of a witness; harm to the investigation or delay of trial.

11. Requires, upon expiration of any delay of notification, the governmental entity to provide to the customer by regular mail or e-mail a copy of the request and the following:

1. Statement of the nature of the law enforcement inquiry;

2. Notice that information maintained for the customer by the service; provider was requested by and supplied to the governmental authority;

3. The date of the request and information supplied;

4. Disclosure of any delay in notification;

5. The court that issued the order; and

6. A written inventory of the property that was taken.

Background

The proper place of trial is generally the county in which the crime occurred. However, an identity thief can use a victim's information across the state. Since 2002, trial of identity theft crimes that occurred in multiple counties and involved a single victim may be held in a single county. Such cases could give rise to overlapping prosecutions, leading to numerous problems, including investigation and evidence collection problems, claims that the first prosecutor to file charges should have resolved all charges arising out of an incident and others. To address such concerns, the applicable venue section was amended to direct a court to consider whether all charges should be tried in one county, or whether some charges should be severed and tried in a different county.

Legislation in 2009 addressed another relatively common situation – the same defendants are involved in an identity theft scheme that involved numerous victims in more than one county. Where a common scheme is involved, evidence from each incident or crime is typically admissible as to each offense. Requiring separate prosecution in each county where related identity theft cases occurred could result in presentation of the same evidence in each county resulting in a waste of judicial, prosecution and defense resources.

Similar issues or considerations apply to cases involving cyber porn revenge or exploitation. Under existing law in cyber porn revenge cases, the defendant and prosecutors could spend a great deal of time and expense negotiating dispositions that reach across county lines. Numerous prosecutions can be filed, wasting judicial resources and inconveniencing witness.

While specifically granting the authority for the government to obtain the contents of electronic communications between the subscriber and the service provided in misdemeanor cases, this bill includes a fairly long list of procedures and limitations applicable in these matters. In particular, this bill requires that the information sought be limited to that necessary to the objective of the warrant, that unrelated information be sealed and that notice be given unless specified adverse consequences could occur.

The author has explained that this bill would have originally allowed a warrant for the search of a suspect’s home computer. To address arguments that execution of a warrant at a person’s home was too great an intrusion for a misdemeanor prosecution of cyber-porn revenge or exploitation, the bill was amended to authorize a warrant served on a service provider for the contents of the suspect’s communications with his or her service provider. As noted above, the amendments also included a number of protections for the target of the investigation and service providers.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• Expanded jurisdictional authority: Potential cost savings in judicial, prosecutorial, and defense counsel resources to the extent the expanded jurisdictional authority eliminates the need to conduct separate proceedings in more than one county.

• Noticing requirements: Potential minor to moderate increase in local costs, potentially in excess of $50,000 statewide, to local law enforcement agencies for those noticing provisions in this bill that exceed requirements under existing state and federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.

SUPPORT: (Verified 8/28/15)

Attorney General of California (source)

Association of Deputy District Attorneys

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California Statewide Law Enforcement Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs Association

OPPOSITION: (Verified 8/28/15)

California Attorneys for Criminal Justice

California Public Defenders Association

ASSEMBLY FLOOR: 79-0, 5/14/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Mayes

Prepared by: Jerome McGuire / PUB. S. /

8/31/15 17:15:06

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1310 (Gatto) - Disorderly conduct: unlawful distribution of image

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1310 would do the following:

• Expand the jurisdiction of criminal actions for unauthorized distribution of an intimate image or sexual conduct (cyber exploitation) to include the county in which the offense occurred, the county in which the victim resided when the offense was committed, or the county in which the intimate image was used for an illegal purpose.

• Provide that where the same defendant or defendant(s) commit cyber exploitation crimes in more than one jurisdiction, and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county.

• Expand authority to obtain a search warrant for electronic communications and records to include communications between a service provider and a customer (content).

• Specify procedures, limitations, and standards, including noticing requirements, related to obtaining a search warrant for electronic communications and computer service information.

Fiscal Impact:

• Expanded jurisdictional authority: Potential cost savings in judicial, prosecutorial, and defense counsel resources to the extent the expanded jurisdictional authority eliminates the need to conduct separate proceedings in more than one county.

• Noticing requirements: Potential minor to moderate increase in local costs, potentially in excess of $50,000 statewide, to local law enforcement agencies for those noticing provisions in the bill that exceed requirements under existing state and federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.

Background:

Existing law provides that the proper venue for a crime is in a court in the jurisdiction where the crime was committed. Under the circumstance where a crime is committed partly in one county and partly in another, trial can be held in either county. (Penal Code (PC) §§ 777, 781.)

In the case of crimes involving identity theft, existing law provides that charges can be filed in the county where the crime occurred or in the county where the information was used illegally. Where multiple identify theft crimes involve the same defendant or defendants and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county. This bill seeks to extend these jurisdictional provisions to crimes involving cyber exploitation, which like identify theft crimes, can involve multiple victims across jurisdictions.

The Fourth Amendment to the U.S. Constitution and Article I, Section 13 of the California Constitution protect the right of the people against unreasonable searches and seizures. In recent cases, the U.S. Supreme Court has affirmed that Fourth Amendment protections extend to electronic information, and that protection must keep pace with advancing technology.

Existing federal law under the Electronic Communications Privacy Act provides that a government entity may only access the contents of communications in electronic storage for 180 days or less pursuant to a warrant. If the contents of a wire or electronic communications have been in electronic storage in an electronic communications system for more than 180 days, a government entity may require its disclosure through other means such as a subpoena or a court order with prior notice to the subscriber or customer. However, a government entity may access the contents of a wire or electronic communications that have been in electronic storage for more than 180 days without required notice to the subscriber or customer if the government entity obtains a warrant.

Further, under existing federal law, a governmental entity may require a provider of electronic communication service to disclose a record or other information pertaining to a subscriber to or customer of such service under specified circumstances, including pursuant to a warrant or court order. A governmental entity receiving records or information under this provision of federal law is not required to provide notice to a subscriber or customer. (18 USC § 2703.)

Under existing state law, a provider of electronic communication service or remote computing service, as defined, is required to disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and  the types of services the subscriber or customer utilized,  when the governmental entity is granted a search warrant, as specified. Under existing state law, a governmental entity receiving subscriber records or information is not required to provide notice to a subscriber or customer. (PC § 1524.3.)

Proposed Law:

This bill would expand the jurisdiction of a criminal action for unauthorized distribution of an image of a person’s intimate body parts or sexual conduct to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose. Additionally, this bill:

• Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

• Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

• States that a provider of electronic communication service or remote computing service, shall disclose to a prosecuting or agency the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, as specified, in addition to the subscriber records, and service and billing information allowed under current law.

• Requires that the search warrant be limited to information necessary to achieve the objective of the warrant, including by specifying the targeted individuals or accounts, applications or services, the types of information, and the time periods covered by the warrant.

• Specifies that information obtained through the execution of the warrant pursuant that is unrelated to the objective of the warrant shall be sealed and not subject to further review without a court order.

• Requires notice to a subscriber or customer upon receipt of the records by the governmental entity that obtains a warrant requiring disclosure of any of the following information: the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, or the contents of communication originated by or addressed to the service provider.

• Authorizes the court to delay notification, in 90-day increments, upon showing that there is reason to believe that notification of the warrant may have an adverse result, including:

  • Endangering the life or physical safety of an individual;

  • Flight from prosecution;

  • Destruction of or tampering with evidence;

  • Intimidation of a witness;

  • Serious harm to the investigation or delay of trial.

• Requires, upon expiration of any delay of notification, the governmental entity to provide to the customer by regular mail or e-mail a copy of the request and the following:

  • A reasonably specific statement of the nature of the law enforcement inquiry.

  • Notice that information maintained for the customer by the service provider was requested by and supplied to the governmental authority.

  • The date on which the request was made and the information supplied;

  • Disclosure of any delay in notification.

  • The court that issued the order.

  • A written inventory of the property that was taken pursuant to the warrant and then provided to the court.

Related Legislation:

SB 178 (Leno) 2015 would prohibit a government entity from compelling the production of, or access to, electronic-communication information or electronic-device information without a search warrant or wiretap order, except under specified emergency situations. This bill is pending hearing in the Assembly Committee on Appropriations.

Prior Legislation: AB 226 (Alquist) Chapter 40/2009 provides that where the same defendant or defendants commit identity theft crimes in more than one jurisdiction, and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county.

SB 467 (Leno) 2013 would have required a search warrant for access to electronic communications, and mandated specified notifications by law enforcement. This bill was vetoed by the Governor with the following message:

This bill requires law enforcement agencies to obtain a search warrant when seeking access to electronic communications. Federal law currently requires a search warrant, subpoena or court order to access this kind of information and in the vast majority of cases, law enforcement agencies obtain a search warrant. The bill, however, imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations. I do not think that is wise.

Staff Comments:

Expanded jurisdictional authority

The provisions of this bill providing for expanded jurisdictional authority to prosecute cyber exploitation crimes could potentially result in future cost savings in judicial, prosecutorial, and defense counsel resources to the extent a defendant or defendants could be prosecuted for multiple offenses committed in more than one jurisdiction in one county, eliminating the need to conduct separate proceedings in multiple jurisdictions.

Noticing requirements

This bill imposes new noticing requirements on governmental agencies receiving subscriber records (including name, address, telephone toll billing records, telephone number or other subscriber number or identity, and length of service), and the contents of communications originated by or addressed to a service provider, pursuant to a warrant under specified circumstances. Under existing state law, pursuant to subdivision (b) of PC § 1524.3, a governmental entity receiving specified information and records pursuant to a warrant is not required to provide notice to a subscriber or customer.

Certain noticing requirements specified in the bill are consistent with provisions of federal, state, and case law, and are not estimated to result in increased costs to governmental agencies. However, as noted in the Background Section of this analysis, under existing federal law (18 USC § 2703), a governmental entity is not required to provide notice to a subscriber or customer when a warrant is obtained for specified electronic information. Additionally, the delayed notification provisions under federal law apply only to use of administrative subpoenas or court orders, which require customer notification. As a result, certain provisions of this bill will result in a higher level of service for local agencies. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).

The costs to agencies would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used. The requirements under delayed notification additionally require a written inventory of all information obtained, as well as other specified information regarding the data request and delayed notification.

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1310 Hearing Date: June 30, 2015

Subject: Disorderly Conduct: Unlawful Distribution of Image

HISTORY

Source: Attorney General of California

Prior Legislation: SB 1255 (Cannella) -- Ch. 863, Stats. 2014

SB 255 (Cannella) -- Ch. 466 Stats. 2013

SB 226 (Alquist) -- Ch. 40, Stats. 2009

SB 1773 (Wayne) -- Ch. 908, Stats. 2002

AB 2886 (Frommer) -- Ch. 522, Stats. 2006

SB 612 (Simitian) -- Ch. 47, Stats. 2008

Support: California Police Chiefs; Association of Deputy District Attorneys; Association for Los Angeles Deputy Sheriffs; California District Attorneys Association; California Police Chiefs Association; California Statewide Law Enforcement Association; Crime Victims United of California; Los Angeles Police Protective League; Peace Officers Research Association of California; Riverside Sheriffs Association

Opposition: California Public Defenders Association; California Attorneys for Criminal Justice

Assembly Floor Vote: 79 - 0

PURPOSE

The purposes of this bill are 1) to provide that where the defendant is charged with distribution of a sexual image in violation of an agreement that the image shall remain private (cyber sexual exploitation), jurisdiction shall include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose; 2) to provide that where the same defendant or defendants commit cyber sexual exploitation crimes in more than one county, and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county, as specified; 3) to provide that a search warrant for electronic communications and records can include communications between a service provider and a customer, as specified; and 4) to specify procedures, standards and limitation for obtaining and serving search warrants for electronic communications and computer service information.

Existing law:

States that any person who uses a concealed video recorder or camera of any type to secretly record another, identifiable person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the other's consent or knowledge, and for the purpose of with sexual gratification or arousal, under circumstances in which the other person has a reasonable expectation of privacy, including a bedroom, bathroom, changing room and similar spaces, is guilty of disorderly conduct, a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. For a second or subsequent conviction, or where the victim is a minor, the maximum jail term and fine is one year and $2,000 respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)

Provides that a defendant who intentionally distributes the image of the intimate body part of another identifiable person, or an image of the person engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation involving the person depicted, and the defendant and the person depicted agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress is guilty of disorderly conduct, a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. For a second or subsequent conviction, or where the victim is a minor, the maximum jail term and fine is one year and $2,000 respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)

• “Distribution of an image” means that the defendant personally distributed the image, or arranged, requested, or intentionally caused another person to distribute that image; (Pen. Code § 647, subd. (j)(4)(B).)

• "Intimate body part" means as any portion of the genitals, the anus, and in the case of a female, any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (Pen. Code, § 647, subd. (j)(4)(C).)

• Distribution of an intimate image in violation of a privacy agreement is not a crime if any of the following applies:

• The distribution is made in the course of reporting an unlawful activity. (Pen. Code, § 647, subd. (j)(4)(D)(i).)

• The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. (Pen. Code, § 647, subd. (j)(4)(D)(ii).

• The distribution is made in the course of a lawful public proceeding. (Pen. Code, § 647, subd. (j)(4)(D)(iii).)

Existing law provides that it is an alternate felony-misdemeanor for a person to willfully obtain the personal identifying information of another person and to use such information to obtain, or attempt to obtain, credit, goods, or services in the name of the other person without consent. A felony sentence for identity theft is to be served in a county jail pursuant to Penal Code Section 1170, subdivision (h), unless the defendant is disqualified from a jail term because he or she has suffered a serious felony conviction or is required to register as a sex offender. (Pen. Code § 530.5, subd. (a).)

Existing law defines "personal identifying information" to mean name, address, mother's maiden name, place of employment, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including and numerous other items that are associated with a person's identify, as specified. (Pen. Code § 530.55.)

Existing law provides that the proper jurisdiction – venue – for a crime is in a court in the jurisdiction where the crime was committed. (Pen. Code § 777.)

Existing law provides that when a crime is committed partly in one county and party in another, trial can be held in either county. (Pen. Code § 781.)

Existing law provides that charges arising under the identity theft law (Penal Code § 530.5) can be filed in the county where the theft of the personal identifying information occurred, or the county where the information was used illegally. Where multiple identity theft crimes involving the same defendant and the same victim occur in multiple jurisdictions, any one of those jurisdictions is a proper jurisdiction for trial of all charges. (Pen. Code § 786, subd. (b)(1).)

Existing law provides that where multi-county identity theft crimes involving the same defendants and the same victim are filed in a single county, the court shall hold a hearing to determine if that county is the proper place for trial, or whether some charges should be "severed" and filed in another county. The prosecutor shall present evidence that the prosecutors in the other counties where the crimes have occurred agree to prosecution in the county where the case was filed. The court shall consider availability of evidence, fairness to parties and convenience to witnesses in making this determination. (Pen. Code § 786, subd. (b)(2).)

Existing law provides where an identity theft case is filed in the county where the victim lived at the time of the offense, and no other basis for jurisdiction in that county applies, the court shall consider the availability of evidence, fairness to parties and convenience to witnesses in making this determination. (Pen. Code § 786, subd. (b)(3).)

Provides that a search warrant may be issued upon any of the following grounds:

• When the property was stolen or embezzled;

• When the property or things were used as the means of committing a felony;

• When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered;

• When the property or things to be seized consist of any item or evidence that tends to show that a felony has been committed or that a particular person has committed a felony;

• When the property or things to be seized consist of evidence that tends to show sexual exploitation of a child or possession of child pornography;

• When there is a warrant to arrest a person;

• When a provider of electronic communication or remote computing service has records or evidence showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor, or in the possession of another to whom he or she may have delivered them for the purpose of concealment;

• When the things to be seized include evidence showing failure to secure workers compensation;

• When the property includes a firearm or deadly weapon and specified circumstances related to domestic violence, examination of a person's mental condition; protective orders, as specified;

• When the information to be received from the use of a tracking device tends to show a felony or misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code ;

• For purposes of obtaining a sample of the blood of a person in a driving under the influence matter when the person has refused to submit or complete, a blood test as required, as limited and specified;

• Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order, as specified. (Pen. Code § 1524, subd. (a)(1)-(14).)

Provides that the property seized in a search warrant may be taken from any place, or from any person in whose possession the property or things may be. (Pen. Code, § 1524, subd. (b).)

Provides that when the property or things to be seized consist of any item or constitute any evidence that tends to show a violation of identity theft, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court. (Pen. Code § 1524, subd. (j).)

States that a provider of an electronic communication or remote computing service shall, pursuant to a warrant, disclose to a prosecuting or investigating agency the name, address, telephone number or subscriber identity, billing records and length and types of services. Notice to the subscriber is not required. (Pen. Code 1524.3, subds. (a)-(b).)

Allows a court issuing a search warrant as to an electronic communication or remote computing service, to grant a motion to quash or modify the warrant if the records sought are unusually voluminous or compliance would cause an undue burden on the provider. (Pen. Code 1524.3, subd. (c).)

States that a provider of electronic communication or remote computing services, upon the request of a peace officer, shall take all necessary steps to preserve records and evidence in its possession pending the issuance of a warrant or through a written request and affidavit declaring an intent to file a warrant. Records shall be retained for a period of 90 days, with a 90-day extension upon a renewed request. (Pen. Code § 1524.3, subd. (d).)

This bill:

Expands the jurisdiction of a criminal action for unauthorized distribution of an image of a person’s intimate body parts or sexual conduct to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

Requires the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county.

Requires the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

Requires the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hard ship to, the victim and witnesses.

Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim’s residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice

States that a provider of electronic communication service or remote computing service, shall disclose to a prosecuting or agency the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, as specified, in addition to the subscriber records, and service and billing information allowed under current law.

Requires that the search warrant be limited to information necessary to achieve the objective of the warrant, including by specifying the targeted individuals or accounts, applications or services, the types of information, and the time periods covered by the warrant.

Specifies that information obtained through the execution of the warrant pursuant that is unrelated to the objective of the warrant shall be sealed and not subject to further review without a court order.

Requires notice to a subscriber or customer upon receipt of the records by the governmental entity that obtained the warrant.

Authorizes the court to delay notification, in 90-day increments, upon showing that there is reason to believe that notification of the warrant may have an adverse result, including:

• Endangering the life or physical safety of an individual;

• Flight from prosecution;

• Destruction of or tampering with evidence;

• Intimidation of a witness;

• Serious harm to the investigation or delay of trial.

Requires, upon expiration of any delay of notification, the governmental entity to provide to the customer by regular mail or e-mail a copy of the request and the following:

• A reasonably specific statement of the nature of the law enforcement inquiry;

• Notice that information maintained for the customer by the service provider was requested by and supplied to the governmental authority;

• The date on which the request was made and the information supplied;

• Disclosure of any delay in notification;

• The court that issued the order; and

• A written inventory of the property that was taken pursuant to the warrant and then provided to the court.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Cyber exploitation, stalking, and harassment are major problems in today’s technology-driven society. Studies show that 70% of cyber stalking victims are female. For example, San Diego resident Kevin Bollaert was convicted of identity theft and extortion in connection with a cyber-porn revenge website and sentenced to a term of 18 years. Bollaert’s website contained approximately 10,000 images. Almost all of them were images of women. There have been two additional recent arrests through investigations by the Attorney General's eCrime unit. These investigations have revealed the need for search warrant capabilities for this new class of crime as well as jurisdictional fixes.

For violations of subdivision (j) of Section 647 of the Penal Code (cyber sexual exploitation), current law requires each case be brought in the county where the crime occurred, unless identity theft or conspiracy can also be proven. With e-crime, the county in which the crime occurred is not well-defined, but is typically thought of as where the photo was uploaded or posted.

To address jurisdictional challenges in prosecuting technology-related crimes, California has already altered the jurisdictional rules for identity theft cases. AB 1310 would extend the identity theft model to cyber exploitation, allowing prosecutors to bring an action against an individual in the jurisdiction in which the depicted person resides, effectively addressing the problems outlined above. Under this bill, jurisdiction will include:

• The county in which the offense occurred.

• The county in which the victim resided at the time the offense was committed.

• The county in which the intimate image was used for an illegal purpose.

Since posters and website operators commonly reside outside of the victims’ jurisdiction, (and often out of state), the bill would limit the burden placed on the victim during prosecution, and render moot a claim that California has no jurisdiction over an out-of-state perpetrator. AB 1310 would also allow for the prosecution of a defendant who has committed multiple offenses of cyber exploitation under a similar scheme to be brought in any one county where there is jurisdiction.

Currently, cyber sexual exploitation is not grounds for the issuance of a search warrant. However, these cases require law enforcement to obtain Internet Service Provider (ISP) records. Those records are protected pursuant to the federal Electronic Communications Privacy Act (ECPA), including electronic communication content stored by the provider (e.g. e-mail records held by an ISP). A public or private ECS (Enterprise Collaboration System) is generally prohibited from voluntarily disclosing the content of wire and electronic communication intercepted during transmission. One of the exceptions to this rule is a case where the communication provider inadvertently obtains information that pertains to the commission of a crime. The appropriate mechanism available to California law enforcement to compel disclosure of information is a search warrant.

Under current California law, however, law enforcement lacks the authority to compel information from ISPs about cyber exploitation. This bill gives law enforcement an additional tool to better investigate in cyber exploitation case. Specifically, the bill narrowly expands the search warrant provision is to include a limited electronic communication authority. At the same time, recognizing the value of privacy, it also includes a search warrant notification requirement and requires the sealing of any content that is not relevant to the case. The search warrant provision is limited to electronic communication and does not extend to inside the home."

2. Basic Concepts: Jurisdiction – Power of the Court to Try a Case; Venue – the Place of the Trial; and Vicinage – Geographic Area from which the Jury is Chosen

Subject Matter Jurisdiction

Subject matter jurisdiction is the basic power of a court to hear a case. Under Article VI, Section 10, of the California Constitution, the superior court has "original jurisdiction in all causes except those given by statute to other trial courts." Subject matter jurisdiction cannot be waived or conferred by the parties. A judgment entered in a court without subject matter jurisdiction is void. (Griggs v. Superior Court (1976) 16 Cal.3d 341, 344.) Superior courts have jurisdiction over felony criminal matters. (Pen. Code § 681.) Thus, any superior court in the state has subject matter jurisdiction over an identity theft case charged as a felony.

Venue and Vicinage

The California Supreme Court in People v. Price (2001) 25 Cal.4^th 1046, 1054-1056, explained the concepts of venue (territorial jurisdiction) and vicinage (area from which jury pool is chosen) as applied to criminal prosecutions:

Venue refers to the location where the trial is held, whereas vicinage refers to the area from which the jury pool is drawn. It is possible in theory to change one but not the other. The concepts . . . are closely related, as a jury pool ordinarily is selected from the area in which the trial is to be held. ...Venue is historically significant ... because … the … practice of transporting colonists …to either England or other English colonies for trial was among the principal complaints of the colonists. …Objections to that practice led to the inclusion of Article III, Section 2 in the United States Constitution. . . . Most California venue statutes serve a similar purpose in reducing the potential burden on a defendant who might otherwise be required to stand trial in a distant location that is not reasonably related to the alleged criminal conduct.

When the Legislature creates an exception to the rule of Section 777 [that trial should proceed in the county where the crime occurred], the venue statute is remedial and for that reason is construed liberally to achieve the legislative purpose of expanding criminal jurisdiction. (Internal citations omitted; emphasis added.)

The court in Price further explained that the right of vicinage in California is effectively limited to a requirement that there be a reasonable nexus between the crime and the county of trial. (Id, at 1074.) The right to an impartial jury is a more important consideration than the place from which a jury is chosen. Today, defendants often argue that jurors should know nothing about a case in order to eliminate prejudice about the defendant's guilt. (Id., at 1059-1060, 1064-1065.)

3. Special Rules for Determining the County of Trial for Identity Theft - Application to Cyber-porn Revenge or Exploitation

In 2002 the Legislature allowed trial in one county of identity theft crimes that occurred in multiple counties and involved a single victim. (SB 1773 (Wayne), Ch. 908, Stats. 2002.) An identity thief can relatively easily and quickly use a victim's identifying information in many counties across the state. Such cases could give rise to overlapping prosecutions, leading to numerous problems, including investigation and evidence collection problems, claims that the first prosecutor to file charges should have resolved all charges arising out of an incident and others. To address such concerns, the applicable venue section was amended to direct a court to consider whether all charges should be tried in one county, or whether some charges should be severed and tried in a different county. The prosecutor in such a case is directed to obtain the agreement of the district attorneys in the other counties where venue would also lie.

In 2009, AB 266 (Alquist) addressed a situation that is also relatively common – the same defendants are involved in an identity theft scheme that involved numerous victims in more than one county. Improper releases of personal information – mistaken release of social security numbers or credit card information for example – often affect many citizens. It is also not uncommon for identity thieves to obtain groups of identity "profiles" (identifying information sufficient for identity theft) at one time. Prosecutions of related cases involving multiple victims in multiple counties present the same types of problems that arise where crimes against a single victim occur in multiple counties. Where a common scheme is involved, evidence from each incident or crime is typically admissible as to each offense. Requiring separate prosecution in each county where related identity theft cases occurred could result in presentation of the same evidence in each county resulting in a waste of judicial, prosecution and defense resources.

Similar issues or considerations apply to cases involving cyber porn revenge or exploitation. Prosecution on related charges in more than one county can be very problematic for defendants also. A defendant may be unable or unwilling to resolve a case where he or she faces prosecutions in other counties involving the same charges. Under existing law in cyber porn revenge cases, the defendant and prosecutors could spend a great deal of time and expense negotiating dispositions that reach across county lines.

4. This Bill Authorizes Seizure of the Contents of Communications between a Subscriber and a Service Provider in a Range of Misdemeanors, not Cyber-porn Revenge Cases Only, and Includes Limitations and Specific Procedures for Obtaining and Serving Warrants

This bill was recently amended to strike the specific authorization for search warrants in cyber-porn revenge cases. Instead, the bill was amended to authorize search warrants for electronic data and subscriber to include “the contents of communication originated by or addressed to the service provider.” The amendments also include a number of limitations and procedures with which the government must comply in serving a warrant a communications or computer service provider. It appears that in the context of cyber-porn revenge, the contents of these communications would include transmission of the offending image and confirmation that it had been received, uploaded and distributed.

Existing law provides, in relevant part, the following as concerns search warrants served on a provider of electronic communications or remote computing service in a misdemeanor investigation:

A provider of electronic communication … or remote computing service… shall disclose to a … prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, when the governmental entity is granted a search warrant pursuant to paragraph (7) of subdivision (a) of Section 1524. (Pen. Code § 1524.3 subd. (a).

The bill amends subdivision (a) of Penal Code Section 1524.3, as follows:

A provider of electronic communication … or remote computing service…shall disclose to a … prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant pursuant to paragraph (7) of subdivision (a) of Section 1524. (The amendments to the subdivision are in bold italics.

While specifically granting the authority for the government to obtain the contents of electronic communications between the subscriber and the service provided in misdemeanor cases, the bill includes a fairly long list of procedures and limitations applicable in these matters. In particular, the bill requires that the information sought be limited to that necessary to the objective of the warrant, that unrelated information be sealed and that notice be given unless specified adverse consequences could occur.

The author has explained that the bill would have originally allowed a warrant for the search of a suspect’s home computer. To address arguments that execution of a warrant at a person’s home was too great an intrusion for a misdemeanor prosecution of cyber-porn revenge or exploitation, the bill was amended to authorize a warrant served on a service provider for the contents of the suspect’s communications with his or her service provider. As noted above, the amendments also included a number of protections for the target of the investigation and service providers.

5. Inconsistency in the Provisions Concerning Jurisdiction for a Cyber-porn Revenge or Exploitation Case

The intent of the bill appear to be to adapt the rules for determining the appropriate place for trial of an identity theft case to cases involving distribution of intimate image under circumstances where the person depicted and the distributor agreed that the image shall remain private. This is colloquially called cyber-porn revenge or exploitation. The specific provisions concerning the county where such a case should be tried - the jurisdiction or venue for the case - refer to violating privacy rights through illegal distribution of an intimate image. However, the provisions include a reference to the proper place of trial for any crime included in subdivision (j) of section 647.

Subdivision (j) of Section 647 includes a number of invasion of privacy crimes. One crime involves surreptitious viewing of a person in a bedroom, bathroom, changing room or other similar location. Another two crimes involves surreptitious video recording or photographing a person, either for sexual gratification or to simply invade the privacy of the victim. These crimes would not appear to present problems with determining the proper county for prosecution. Unlike cyber-porn revenge or exploitation, these invasion of privacy crimes are committed in a fixed location. In fact, the crime includes an element that the victim had a reasonable expectation of privacy in the location of the crime. It would arguably be impractical or unreasonable to allow prosecution in a county solely because it is the residence of the victim. All the witnesses and evidence would have to be brought from the county of the crime to county where the victim lives.

In contrast, one of the harms of cyber-porn revenge is that the victim's image can be instantly distributed anywhere in the Internet. The image may have been captured in one county, the agreement that the image remain private been made in another county, the image uploaded to the Internet in another county and the image viewed virtually any place and the victim suffer emotional harm in the place where she lives. As such, flexibility in determining the proper county for prosecution appears to be necessary in a cyber-porn revenge case.

If the author's intent is to apply the identity-theft form of jurisdiction or venue to cyber-porn revenge or exploitation, the bill should limit those provisions to paragraph (4) of subdivision (j) of Section 647.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1310

Author:(Gatto)

As Amended Ver:April 29, 2015

Majority vote

SUMMARY:

Expands jurisdiction for crimes involving peeping by use of camera, phone, or other instrumentality where intimate images are captured and distributed. Allows law enforcement to use a search warrant to get the contents of communications between customer and service provider. Specifically, this bill:

1. Expands the jurisdiction of a criminal action for specified conduct, including "revenge porn" and peeping with a recording device, to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

2. Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

3. Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

4. Requires the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county.

5. Requires the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Requires the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hard ship to, the victim and witnesses.

7. Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim's residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice.

8. States that a provider of electronic communication service or remote computing service, as specified, shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, as specified.

9. Requires that the search warrant be limited to only that information necessary to achieve the objective of the warrant, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.

10. Specifies that information obtained through the execution of a search warrant pursuant to this section that is unrelated to the objective of the warrant shall be sealed and not subject to further review without an order from the court.

11. States that a governmental entity receiving subscriber records or information under this section is required to provide notice to a subscriber or customer upon receipt of the requested records. This notification may be delayed by the Court, in 90 day increments, upon showing that there is reason to believe that notification of the existence of the search warrant may have an adverse result.

12. States that upon expiration of the period of delay of notification, if any, the governmental entity shall provide written notice, by regular mail or email, to the subscriber or customer, a copy of the process or request together with notice that: –

    1. States with reasonable specificity the nature of the law enforcement inquiry; and

    2. Informs such customer or subscriber –

    3. That information maintained for such customer or subscriber by the service provider named in such process or request was requested by that governmental authority and supplied to that governmental authority, and the date on which the request and supplying took place;

       1. That notification of such customer or subscriber was delayed, if notice was delayed; and

       2. What court issued the order pursuant to which that delay was made; and

       3. A copy of the written inventory of the property taken that was provided to the court pursuant to Penal Code Section 1537.

13. Provides that notice need not be provided if it would do any of the following:

    1. Endangering the life or physical safety of an individual;

    2. Flight from prosecution;

    3. Destruction of or tampering with evidence;

    4. Intimidation of potential witnesses; or

    5. Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

EXISTING LAW:

1. Specifies that except as provided, when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.

2. Allows jurisdiction of a criminal action for identity theft, to include the county where the theft of the personal identifying information occurred, the county in which the victim resided at the time the offense was committed, or the county where the information was used for an illegal purpose.

3. Specifies that if multiple offenses of unauthorized use of personal identifying information, either all involving the same defendant or defendants and the same personal identifying information belonging to the one person, or all involving the same defendant or defendants and the same scheme or substantially similar activity, occur in multiple jurisdictions, then any of those jurisdictions is a proper jurisdiction for all of the offenses.

4. Allows jurisdiction to extend to all associated offenses connected together in their commission to the underlying identity theft offense or identity theft offenses.

5. Specifies that when charges alleging multiple offenses of unauthorized use of personal identifying information occurring in multiple territorial jurisdictions are filed in one county pursuant to this section, the court shall hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed. The district attorney filing the complaint shall present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Requires that in determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether or not the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hardship to, the victim and witnesses.

7. Two or more offenses connected together in their commission or in the same class of crimes or offenses may be joined in one accusatory pleading.

8. States that a provider of electronic communication service or remote computing service, as specified, shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, when the governmental entity is granted a search warrant.

9. Specifies that a governmental entity receiving subscriber records or information under this section is not required to provide notice to a subscriber or customer.

10. Allows a court issuing a search warrant, as specified, on a motion made promptly by the service provider, to quash or modify the warrant if the information or records requested are unusually voluminous in nature or compliance with the warrant otherwise would cause an undue burden on the provider.

11. States that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the peace officer.

FISCAL EFFECT:

Unknown. This bill has been keyed non-fiscal by the Legislative Counsel.

COMMENTS:

According to the author, "It is essential that we protect our communities from criminals who exploit and violate their victims’ privacy and then 'hide in plain sight' behind computer screens and jurisdictional technicalities. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn’t be allowed to use legal technicalities as a shield against prosecution. AB 1310 will give law enforcement the necessary tools to investigate and prosecute cyber exploitation cases by allowing a case to be prosecuted in the jurisdiction where the victim resides and allowing search warrants to be issued for the timely investigation of cyber exploitation crimes."

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0000295

Date of Hearing: May 5, 2015

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Mike Gatto, Chair

ABPCA Bill Id:AB 1310

Author:(Gatto) – As Amended Ver:April 29, 2015

SUBJECT: Disorderly conduct: unlawful distribution of image

SUMMARY: Allows cyber exploitation cases to be prosecuted in the same jurisdiction in which the offense occurred, where the victim resided when the offense was committed, or where the intimate image was used for an illegal purpose, and allows law enforcement agencies to get a search warrant to seize electronic images used for cyber exploitation. Specifically, this bill:

1. Expands the jurisdiction of a criminal prosecution for cyber exploitation to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

2. Allows prosecution in any of the specified jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

3. Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

4. Requires the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county.

5. Requires the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Requires the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hardship to, the victim and witnesses.

7. Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim’s residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court is required to consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice.

8. Expands the grounds for issuance of a search warrant to include property or things to be seized which consist of evidence that tends to show violation of California’s cyber exploitation statutes.

9. Requires a provider of an electronic communication service or a remote computing service to disclose the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, the length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication that originated by or was addressed to the service provider, when a law enforcement agency is granted a search warrant under this bill.

10. Requires the search warrant to be limited to only that information necessary to achieve the objective of the warrant, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.

11. Requires that information obtained through the execution of a search warrant pursuant to this section that is unrelated to the objective of the warrant must be sealed and is not subject to further review without an order from the court.

12. Requires a law enforcement agency to provide notice, by mail or email, to the person whose records or data were obtained under a search warrant but allows the court to delay the notice in 90-day increments if law enforcement can show that notice would have an adverse result.

13. The notice must include a copy of the process or request, a statement with reasonable specificity that explains the nature of the inquiry and informs the person:

1. that the person’s data, which is maintained by the service provider named in the process or request, was requested by that governmental authority and supplied to that governmental authority and the date on which the request and supplying took place;

2. that notification was delayed (if applicable);

3. the court the issued the order permitting the delay; and

4. a copy of the written inventory of the property taken that was provided to the court.

14. Defines “adverse result” as: endangering the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

EXISTING LAW:

1. Makes it a misdemeanor crime for a person to intentionally distribute the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. A person “intentionally distributes” an image when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. “Intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (PC 647(j)(4))
   
   

2. Specifies that except as provided, when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory. (PC 781)
   
   

3. Requires law enforcement, in certain instances, to obtain a warrant to search a person or a person’s property and states that a search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate. (PC 1523)

4. States that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the peace officer. (PC 1524.3(d))

FISCAL EFFECT: None. This bill has been keyed non-fiscal by the Legislative Counsel.

COMMENTS:

1. Purpose of this bill. This bill is intended to give law enforcement additional tools to investigate and prosecute cyber exploitation (i.e., the non-consensual distribution and publication of intimate photos and videos). Specifically, the bill allows law enforcement agencies to get a search warrant to access digital databases that may contain photos and other evidence of cyber exploitation and allows prosecutors to bring cyber exploitation cases in the county where the victim resides, the county where the defendant resides, or the county in which the crime occurred. This bill is author-sponsored.
   
   

2. Author’s statement. According to the author, “It is essential that we protect our communities from criminals who exploit and violate their victims’ privacy and then 'hide in plain sight' behind computer screens and jurisdictional technicalities. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn’t be allowed to use legal technicalities as a shield against prosecution. AB 1310 will give law enforcement the necessary tools to investigate and prosecute cyber exploitation cases by allowing a case to be prosecuted in the jurisdiction where the victim resides and allowing search warrants to be issued for the timely investigation of cyber exploitation crimes.”

3. What is cyber exploitation? Cyber exploitation, often referred to as revenge porn, is defined as the non-consensual distribution and publication of intimate photos and videos. The poster of this content sometimes obtains the photos or videos with consent during a prior relationship, or steals them later after the relationship has ended by hacking into the victim’s phone, computer, or social media accounts.

4. The proliferation of cyber exploitation, stalking, and harassment. Recent studies indicate that harassment via networked technologies is increasing. In 2006, the Bureau of Justice Statistics estimated that 850,000 people in the United States endured physical stalking with an online component, such as threats over email and text, attacks sites devoted to them, or harassment on social networks. The study also found that 60% of stalking victims (including stalking via networked technologies) were female. In September 2014, Pew came out with a study that reinforced this evidence, estimating that 20% of women who are in their 20s experience cyber stalking (defined as repeated course of conduct targeted at an individual causing fear of physical harm) or cyber sexual harassment.

5. The Department of Justice’s efforts to crack down on e-crime. In 2011, Attorney General (AG) Kamala Harris created an eCrime Unit to identify and prosecute identity theft crimes, cybercrimes and other crimes involving the use of technology. On April 5, 2015, the AG announced that Kevin Christopher Bollaert, the operator of a cyber-exploitation website which posted nude photos of individuals with personal identifying information without their consent, was sentenced to 18 years in prison. The case was the first criminal prosecution of a cyber-exploitation website operator in the country. Bollaert’s website contained approximately 10,000 images that were the subject of cyber exploitation.

Bollaert created the website ugotposted.com, which allowed the anonymous, public posting of private photographs containing nude and explicit images of individuals without their permission. Unlike many other cyber exploitation websites where the subject of the photos is anonymous, ugotposted.com required that the poster include the subject’s full name, location, age, and Facebook profile link. As a result, the victims experienced severe harassment through social media, at their places of work and in other communities. Bollaert then created a second website, changemyreputation.com, in October 2012, which he used when individuals contacted ugotposted.com requesting that content be removed from the site. Bollaert would extort victims by replying with a changemyreputation.com email address and offering to remove the content for a fee ranging from $250 to $350. Bollaert made $900 per month from advertising on the site and received payments totaling approximately $30,000.

Since 2013, when the AG began investigating Bollaert’s case, the AG has made additional arrests on cyber exploitation charges. According to the Department of Justice, these investigations have revealed the need for additional search warrant capabilities for this new class of crime as well as broader provisions regarding in which jurisdictions these crimes can be prosecuted.

6. Expanding jurisdiction for prosecution. For violations of cyber exploitation, current law requires each case be brought in the county where the crime occurred (unless an additional crime of identity theft or conspiracy can also be proven). With e-crime, the county in which the crime occurred is not always well-defined, but is typically thought of as where the photo was uploaded or posted.
   
   These jurisdictional restrictions cause two primary problems: first, if a criminal commits cyber exploitation in more than one county, he must be tried separately in each jurisdiction, which can result in unnecessary costs for law enforcement agencies. In addition, if the defendant resides outside of California, he or she may argue that he is not subject to jurisdiction in California, which, if argued successfully, would preclude a California prosecution altogether.
   
   This bill expands prosecutorial jurisdiction to mirror the options available in identity theft cases. Specifically, under this bill the AG or a district attorney can bring an action against an individual in any of the following jurisdictions:
   
   

   1. where the offense occurred;
      
      

   2. where the victim resided when the offense was committed; or
      
      

   3. where the intimate image was used for an illegal purpose.
      
      

The remote nature of cyber exploitation crimes arguably warrants prosecutorial options similar to that of identity theft crimes.

7. Permitting search warrants for cyber exploitation investigations. Generally, search warrants are limited to cases where law enforcement is investigating felony conduct. However, law enforcement agencies can seek a search warrant to investigate misdemeanors in certain instances specified in statute. This bill seeks to allow law enforcement agencies to obtain search warrants specifically in cyber exploitation cases, which are misdemeanor cases, so that cyber exploitation images can be seized as evidence and cyber exploitation criminals can be prosecuted. Under this bill, law enforcement would have the ability to get a warrant to search electronic databases and retrieve the victims’ images.

8. Recent amendments reflect a compromise between the law enforcement and civil rights interests. According to the author’s office, the recent amendments to the bill represent a compromised reached between the American Civil Liberties Union (ACLU) and the Department of Justice.
   
   The ACLU had expressed concerns that search warrant provisions of the bill were too broad and could cause to great an intrusion on personal privacy for individuals subject to investigation for cyber exploitation. The Department of Justice was willing to accept amendments that narrow the search warrant provisions of the bill, so that a search warrant may only be obtained for electronic communications only, not for access to an individual’s home. The recent amendments also add additional safeguards and procedures – including notice to the individual subject to the warrant and a requirement to seal any content not relevant to the case – which are designed to ensure a balance between law enforcement needs and personal privacy interests.

9. Privacy concerns. The ACLU had expressed concerns that the search warrant provisions of the bill could be too invasive of personal privacy when it comes to defendants in cyber exploitation cases. The author has accepted amendments to address this concern.
   
   In the bigger picture, of course, this bill will make it easier to stop cyber exploitation, a high-tech crime that takes the traditional claim of “invasion of privacy” to an extreme. This bill helps law enforcement agencies more effectively investigate and prosecute cyber exploitation, stop existing cyber exploitation criminals, and discourage others from committing the crime, which ultimately leads to better protection of personal privacy.

10. Arguments in support. According to the Department of Justice, “Recent cases on cyber exploitation have revealed several deficiencies in law... First…current law requires that each case of cyber exploitation be brought in the county where the crime occurred. With e-crime, the county in which the crime occurred is not always well defined, but is typically thought of as where the photo was uploaded or posted… [I]f a criminal commits cyber exploitation in more than one county, he must be tried separately in each jurisdiction, which can result in significant and unnecessary costs for taxpayers, prosecutors, and defendants. In addition to the waste of public resources, it is particularly difficult on victims who must testify repeatedly about the same crime in different trials. Perhaps even more concerning – if the criminal resides outside of California, he may argue that he is not subject to jurisdiction at all which, if argued successfully, would prevent California prosecutors from trying him…
    
    “Second, cyber exploitation cases demand that law enforcement have the ability to obtain Internet Service Provider (ISP) records in order to retrieve victims’ images and effectively investigate and prosecute these crimes. Under current California law, however, for misdemeanor crimes (including cyber exploitation), law enforcement lacks the authority to compel information from ISPs by either subpoena or search warrant. Consequently, law enforcement must find another related crime that constitutes a felony to obtain the necessary records or they won’t be able pursue the case further… AB 1310 is critical to empower law enforcement to address one of society’s most heinous crimes and provide avenues for victims to receive justice.”

According to the California Police Chiefs Association, “AB 1310 would permit the seizure of cyber exploitation, commonly referred to as ‘revenge porn’ images as grounds for issuance of a search warrant, giving law enforcement the ability to search electronic databases and retrieve the victims’ images. It would additionally allow the prosecuting district attorney’s office to bring an action against an individual in the jurisdiction in which the individual whose image was published resides. Since poster and website operators commonly reside outside of the victims’ jurisdiction, this would relieve some of the burden placed on the victim during prosecution.”

The California Statewide Law Enforcement Association, states in support that this bill, “updates current law to make it easier to seek search warrants and bring cases to combat cyber exploitation. Given the rapid growth in these crimes, and the life-long impact on its victims, we believe that it is important to provide law enforcement with the tools necessary to combat these crimes.”

11. Arguments in opposition. The California Public Defenders Association (CPDA), states in opposition to this bill that, “The problem with expanding jurisdiction to counties where the offense was not committed was expressed in by the California Supreme Court in People v. Posey (2004) 32 Cal.4th 193, 210: “The principal justification today for the venue requirement of trial in the vicinity of the crime is to 'safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.' It is [this] point which is most distressing to CPDA. The ability of a person to defend against a charge may be severely compromised if he or she could not reasonably obtain evidence by due diligence."
    
    “This point was again recognized by the California Supreme Court in People v. Price (2001) 25 Cal.4th 1046, 1056, where it explained, 'Most California venue statutes serve a similar purpose in deducing the potential burden on a defendant who might otherwise be required to stand trial in a distant location that is not reasonably related to the alleged criminal conduct.' For example, a person held for trial in San Francisco may have great difficulty obtaining evidence from San Diego to establish that someone else distributed the image at issue. The result would be a violation of due process and is grossly unfair.”

12. Related legislation. SB 178 (Leno) prohibits a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations. SB 178 is pending in the Senate Appropriations Committee.

13. Prior legislation. SB 255 (Cannella), Chapter 466, Statutes of 2013, created a new misdemeanor for the distribution of an image of an identifiable person’s intimate body parts which had been taken with an understanding that the image would remain private, sometimes referred to as “revenge porn.”
    
    

SB 226 (Alquist), Chapter 40, Statutes of 2009, provided that where the same defendant or defendants committed identity theft crimes in more than one county, and the crimes were part of a scheme or involve substantially similar acts, the charges could be tried in one county.

SB 612 (Simitian), Chapter 47, Statutes of 2008, provided that the venue for trial of an identity theft crime included the county in which the victim resided and granted the trial court authority to determine whether the county of the victim’s residence was the appropriate place for trial in a particular case.

SB 662 (Figueroa), Chapter 896, Statutes of 1999, established a procedure for obtaining and serving a search warrant on a foreign corporation that provided electronic communication services or remote computing services to the general public and was registered to do business in California.

14. Double referral. This bill was double-referred to the Assembly Public Safety Committee, where it was heard on April 28, 2015, and passed on a 7-0 vote.

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Kamala Harris

Association of Deputy District Attorneys

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California Statewide Law Enforcement Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs Association

Opposition

California Public Defenders Association

California Attorneys for Criminal Justice

Analysis Prepared by: Jennie Bretschneider / P. & C.P. / (916) 319-2200

Date of Hearing: April 28, 2015

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 1310

Author:(Gatto) – As Introduced Ver:February 27, 2015

SUMMARY:

Expands jurisdiction for crimes involving peeping by use of camera, phone, or other instrumentality where intimate images are captured and distributed. Expands the grounds for issuance of a search warrant to cover property that consists of evidence that tends to show conduct in violation of peeping with use of instrumentality and distribution of intimate images obtained from the peeping. Specifically, this bill:

1. Expands the jurisdiction of a criminal action for the conduct specified in subdivision (j) of Section 647 to include the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.

2. Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions.

3. Authorizes jurisdiction to extend to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.

4. Requires the court to hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed, when charges alleging multiple offenses of unauthorized distribution of an intimate image occurring in multiple territorial jurisdictions are filed in one county.

5. Requires the district attorney filing the complaint to present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing.

6. Requires the court to consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hard ship to, the victim and witnesses.

7. Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim’s residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice.

8. Expands the grounds for issuance of a search warrant to include property or things to be seized which consist of evidence that tends to show conduct in violation of subdivision (j) of Section 647.

EXISTING LAW:

1. States that any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside is guilty of disorderly conduct, a misdemeanor. (Pen. Code, § 647, subd. (j)(1).)

2. States that any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy inside is guilty of disorderly conduct, a misdemeanor. (Pen. Code, § 647, subd. (j)(2).)

3. States that any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person inside is guilty of disorderly conduct, a misdemeanor. (Pen. Code, § 647, subd. (j)(3)(A).)

4. States that any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress is guilty of disorderly conduct, a misdemeanor. (Pen. Code, § 647, subd. (j)(4)(A).)

1. Defines “distribution of an image” as when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image; (Pen. Code, § 647, subd. (j)(4)(B).)

2. Defines "intimate body part" as any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing; and (Pen. Code, § 647, subd. (j)(4)(C).)

3. States that it shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:

1. The distribution is made in the course of reporting an unlawful activity. (Pen. Code, § 647, subd. (j)(4)(D)(i).)

2. The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. (Pen. Code, § 647, subd. (j)(4)(D)(ii).)

3. The distribution is made in the course of a lawful public proceeding. (Pen. Code, § 647, subd. (j)(4)(D)(iii).)

5. Specifies that except as provided, when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory. (Pen. Code, § 781.)

6. Allows jurisdiction of a criminal action for identity theft, to include the county where the theft of the personal identifying information occurred, the county in which the victim resided at the time the offense was committed, or the county where the information was used for an illegal purpose. . (Pen. Code, § 786, subd. (b)(1).)

7. Specifies that if multiple offenses of unauthorized use of personal identifying information, either all involving the same defendant or defendants and the same personal identifying information belonging to the one person, or all involving the same defendant or defendants and the same scheme or substantially similar activity, occur in multiple jurisdictions, then any of those jurisdictions is a proper jurisdiction for all of the offenses. . (Pen. Code, § 786, subd. (b)(1).)

8. Allows jurisdiction to extend to all associated offenses connected together in their commission to the underlying identity theft offense or identity theft offenses. (Pen. Code, § 786, subd. (b)(1).)

9. Specifies that when charges alleging multiple offenses of unauthorized use of personal identifying information occurring in multiple territorial jurisdictions are filed in one county pursuant to this section, the court shall hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed. The district attorney filing the complaint shall present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing. (Pen. Code, § 786, subd. (b)(1).)

10. Requires that in determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, whether or not the offenses involved substantially similar activity or the same scheme, the rights of the defendant and the people, and the convenience of, or hardship to, the victim and witnesses. (Pen. Code, § 786, subd. (b)(1).)

11. Multiple charges of rape, child abuse, spousal abuse, sexual acts with children, or stalking involving the same defendant and victim, that occurred in multiple jurisdictions, can be tried in any jurisdiction in which one of the acts occurred. (Pen. Code, § 784.7.)

12. The trial for child abduction may be held in the jurisdiction from which the child was taken, in the jurisdiction where the child was held, or in the jurisdiction where the child was found. (Pen. Code, § 784.5.)

13. When property taken in one jurisdiction by burglary, carjacking, robbery, theft, or embezzlement is brought or received in another jurisdiction, the trial can be held in either jurisdiction. The trial can also be tried in a contiguous jurisdiction if the defendant is arrested in that jurisdiction, the prosecution secures on the record the defendant's knowing, voluntary, and intelligent waiver of the right of vicinage, and the defendant is charged with one or more property crimes in the arresting territory. (Pen. Code, § 786.)

14. Two or more offenses connected together in their commission or in the same class of crimes or offenses may be joined in one accusatory pleading. (Pen. Code, § 954.)

15. Provides that a search warrant may be issued upon any of the following grounds:

1. When the property was stolen or embezzled; (Pen. Code, § 1524, subd. (a)(1).)

2. When the property or things were used as the means of committing a felony; (Pen. Code, § 1524, subd. (a)(2).)

3. When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered; (Pen. Code, § 1524, subd. (a)(3).)

4. When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony; (Pen. Code, § 1524, subd. (a)(4).)

5. When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under 18 years of age, has occurred or is occurring; (Pen. Code, § 1524, subd. (a)(5).)

6. When there is a warrant to arrest a person; (Pen. Code, § 1524, subd. (a)(6).)

7. When a provider of electronic communication service or remote computing service has records or evidence, as specified, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery; (Pen. Code, § 1524, subd. (a)(7).)

8. When the property or things to be seized include an item or any evidence that tends to show a violation of duty to secure workers compensation; (Pen. Code, § 1524, subd. (a)(8).)

9. When the property or things to be seized include a firearm or any other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault, as specified; (Pen. Code, § 1524, subd. (a)(9).)

10. When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in the possession of, or in the custody or control of a person who has been detained for an examination of their mental condition; (Pen. Code, § 1524, subd. (a)(10).)

11. When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms as specified in the family code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued as specified in the family code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law; (Pen. Code, § 1524, subd. (a)(11).)

12. When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed; (Pen. Code, § 1524, subd. (a)(12).)

13. When a sample of the blood of a person constitutes evidence that tends to show a violation of driving under the influence and the person from whom the sample is being sought has refused an officer's request to submit to, or has failed to complete, a blood test as required, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court's mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis; and (Pen. Code, § 1524, subd. (a)(13).)

14. Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law. (Pen. Code, § 1524, subd. (a)(14).)

16. The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be. (Pen. Code, § 1524, subd. (b).)

17. Notwithstanding subdivision (a) or (b), no search warrant shall issue for any documentary evidence in the possession or under the control of any person who is a lawyer, a psychotherapist, or a member of the clergy and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless specified procedures have been complied with:

18. In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute any evidence that tends to show a violation of identity theft, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court. (Pen. Code, § 1524, subd. (j).)

19. States that a provider of electronic communication service or remote computing service, as specified, shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, when the governmental entity is granted a search warrant. (Pen. Code 1524.3, subd. (a).)

20. Specifies that a governmental entity receiving subscriber records or information under this section is not required to provide notice to a subscriber or customer. (Pen. Code 1524.3, subd. (b).)

21. Allows a court issuing a search warrant, as specified, on a motion made promptly by the service provider, to quash or modify the warrant if the information or records requested are unusually voluminous in nature or compliance with the warrant otherwise would cause an undue burden on the provider. (Pen. Code 1524.3, subd. (c).)

22. States that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the peace officer. (Pen. Code 1524.3, subd. (d).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "It is essential that we protect our communities from criminals who exploit and violate their victims’ privacy and then “hide in plain sight” behind computer screens and jurisdictional technicalities. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn’t be allowed to use legal technicalities as a shield against prosecution. AB 1310 will give law enforcement the necessary tools to investigate and prosecute cyber exploitation cases by allowing a case to be prosecuted in the jurisdiction where the victim resides and allowing search warrants to be issued for the timely investigation of cyber exploitation crimes.”
   
   

2. Jurisdiction: Jurisdiction is generally established by the location where the crime occurred. Jurisdiction exists in the county in which the crime occurred. When a crime is committed in part in one jurisdictional territory and in part in another jurisdictional territory, the jurisdiction for the offense is in any competent court within either jurisdictional territory. (Pen. Code, § 781.)
   
   The Legislature has made provisions that in certain situations where the criminal activity occurred in different geographic jurisdictions in the state, sometimes with multiple victims, it is appropriate to consolidate the prosecution in one jurisdiction (county). Existing law provides for such consolidation where the crime of identity theft is involved. (Pen. Code, § 786.) The proposed legislation seeks to incorporate the same jurisdictional language used in cases of identity theft and extend it to cases that involve “revenge porn” and other specified crimes of a similar nature.
   
   In 2002, the Legislature enacted law which allowed trial in one county of identity theft crimes that occurred in multiple counties and involved a single victim. (SB 1773 (Wayne), Ch. 908, Stats. 2002.) At issue, was the fact that an identity thief can relatively easily and quickly use a victim's identifying information in many counties across the state. The Legislature recognized that such cases can give rise to overlapping prosecutions, leading to numerous problems, including investigation and evidence collection problems, claims that the first prosecutor to file charges should have resolved all charges arising out of an incident and others. To address such concerns, the applicable venue section was amended to direct a court to consider whether all charges should be tried in one county, or whether some charges should be severed and tried in a different county. The prosecutor in such a case was directed to obtain the agreement of the district attorneys in the other counties where venue would also lie.
   
   Consolidation of these types of cases can improve judicial economy in other respects as well. Where a common scheme is involved, evidence from each incident or crime is typically admissible as to each offense. Requiring separate prosecution in each county where related identity theft cases occurred could result in presentation of the same evidence in each county resulting in a waste of judicial, prosecution and defense resources.
   
   In 2009, the Legislature expanded the jurisdictional provisions for identity theft to include situations multiple victims involving the same defendant or defendants as part of the same scheme or substantially similar activity. (SB 226 (Alquist), Ch. 40, Stats. 2009.)
   
   This legislation seeks to address similar jurisdictional issues which can arise when prosecuting “revenge porn” cases. In those cases, the distribution of images can potentially involve multiple counties and victims.
   
   

3. Electronic Communications Privacy Act (ECPA): The ECPA is federal law which protects communication based upon its form. It protects wire and electronic communication content in storage by the provider. The ECPA applies to all parties, private and law enforcement alike. However, for law enforcement, there are mechanisms for requiring disclosure to the government by public Electronic Communication Service (ECS) Providers of information regarding an electronic communication. The most well-known example of an ECS would be an Internet Service Provider (ISP), such as America On Line, Hotmail, or Yahoo.
   
   A public or private ECS is generally prohibited from voluntarily disclosing the content of wire and electronic communication intercepted during transmission. The four exceptions to this rule are: (1) where the addressee / sender consents to the disclosure; (2) where the communication provider is permitted to disclose customer communications in emergencies involving an immediate risk of death or serious physical injury to a person; (3) when the disclosure is necessary to protect the rights or property of the communication service provider; and (4) where the communication provider inadvertently obtains information that pertains to the commission of a crime.
   
   

4. Search Warrants Seeking Electronic Information in Investigations of Misdemeanor Conduct: Search warrants are generally limited to cases where law enforcement is investigating felony conduct. However, the law provides law enforcement to seek and obtain search warrants under specific circumstances involving misdemeanor conduct.
   
   Law enforcement can seek a search warrant to investigate misdemeanor criminal conduct when a provider of electronic communication service or remote computing service has records or evidence showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery. (Pen. Code, § 1524, subd. (a)(7).) Under those circumstances, the investigating agency can obtain a search warrant for the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer used. (Pen. Code 1524.3, subd. (a).)
   
   

5. Amendments Proposed by Committee: The Committee has suggested amendments at the request of the chair which would to limit any use of a search warrant for “revenge porn” and other specified misdemeanors, to exclude the content of any electronic communications.
   
   

6. Argument in Support: According to The California Police Chiefs Association, “AB 1310 would permit the seizure of cyber exploitation, commonly referred to as ‘revenge porn’ images as grounds for issuance of a search warrant, giving law enforcement the ability to search electronic databases and retrieve the victims’ images. It would additionally allow the prosecuting district attorney’s office to bring an action against an individual in the jurisdiction in which the individual whose image was published resides. Since poster and website operators commonly reside outside of the victims’ jurisdiction, this would relieve some of the burden placed on the victim during prosecution. The justice system is intended to protect the public and bring justice to victims. Criminals shouldn’t be allowed to use legal technicalities as a shield against prosecution.”
   
   

7. Argument in Opposition: According to California Attorneys for Criminal Justice, “AB 1310 would expand the power of our courts to issue search warrants in misdemeanor matters other than those narrow exceptions that were recently engrafted into the Penal Code(under the aegis of public safety in drunk driving refusal matters). Those provisions allow merely a blood draw (not a residential search), to occur for purposes of proving an extremely harmful misdemeanor. AB 1310 would unnecessarily allow the issuance of warrants to search private residences day or night for evidence of what amounts to, at worst, a ubiquitous and easily detected public nuisance.
   
   “While the advent of requiring a warrant in circumstances not familiar to law enforcement may have justified recent amendments to 1524 that apply in certain DUI cases, CACJ is concerned that AB 1310 shares none of the public safety imperatives that occur when a suspected drunk driver refuses to provide a blood or breath sample. There appears to be no urgency, or exigence, that would justify the issuance of a warrant to search private homes for evidence that conduct in violation of subdivision (j) of Section 647 has occurred or is occurring. AB 1310 is simply unnecessary. PPP Any valid search warrant requires the police to swear out an affidavit that contains some evidence that what they are looking for will be found at the place to be searched. However, if the police already have that much evidence that a violation of 647(j) has or will occur, then it is the better practice to prove this via subpoena or summons to ISP providers for ISP address information and other means that are readily available to law enforcement.”
   
   

8. Related Legislation: SB 178 (Leno) prohibits a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. SB 178 is awaiting hearing in the Senate Appropriations Committee.
   
   

9. Prior Legislation:
   
   

   1. SB 255 (Cannella), Chapter 466, Statutes of 2013, provides that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct and subject to that same punishment.
      
      

   2. SB 612 (Simitian), Chapter 47, Statutes of 2008, expandes the jurisdictional provisions to include the crimes of unauthorized retention and transfer of personal identifying information when crimes involved identity theft. Added the county in which the victim resided at the time the offense was committed to the jurisdictions in which a criminal action may be brought for commission of these crimes.
      
      

   3. SB 226 (Alquist), Chapter 40, Statutes of 2009, provides that when multiple offenses occur in multiple jurisdictions and all of the offenses involve the same defendant or defendants and either the same personal identifying information of one person or the same scheme or substantially similar activity, then jurisdiction for all offenses, including associated offenses connected together in their commission to an underlying identity theft offense, is proper in any one of the counties where one of the offenses occurred.
      
      

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Kamala Harris

Association of Deputy District Attorneys

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs Association

Opposition

California Public Defenders Association

California Attorneys for Criminal Justice

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744