SB 500: Extortion.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2017-10-05
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would include within the definition of extortion the obtaining of consideration, as defined, by force, fear, or under color of official right. The bill would define consideration as anything of value, including enumerated sexual acts or sexual images.
By changing the elements of the crime of extortion, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would include within the definition of extortion the obtaining of consideration, as defined, by force, fear, or under color of official right. The bill would define consideration as anything of value, including enumerated sexual acts or sexual images.
By changing the elements of the crime of extortion, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would create the crime of sexual extortion. For those purposes, the bill would make a person 18 years of age or older guilty of sexual extortion if he or she, with intent to coerce any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, threatens physical harm to the person or threatens the person in specified ways, and that threat causes the person to engage in sexual conduct or to produce, provide, or distribute that image, video, or other recording. The bill would make a violation of that provision punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail for 2, 3, or 4 years, and by a fine not exceeding $10,000. The bill would additionally make attempted sexual extortion by a person 18 years of age or older punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail for 16 months or 2 or 3 years, and by a fine not exceeding $10,000. include within the definition of extortion the obtaining of consideration, as defined, by force, fear, or under color of official right. The bill would define consideration as anything of value, including enumerated sexual acts or sexual images.
By changing the elements of the crime of extortion, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law makes it a crime for any person to knowingly access and without permission alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data. Existing law additionally makes it a crime to knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or computer network.
This bill would specify that data, for purposes of these crimes crimes, includes sexually explicit recordings or images.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would create the crime of sexual extortion. The For those purposes, the bill would make a person 18 years of age or older guilty of sexual extortion if he or she, with intent to coerce any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, threatens physical harm to the person or threatens the person in specified ways, and that threat causes the person to engage in sexual conduct or to produce, provide, or distribute that image, video, or other recording. The bill would make a violation of that provision punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail for 2, 3, or 4 years, and by a fine not exceeding $10,000. The bill would additionally make attempted sexual extortion by a person 18 years of age or older punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail for 16 months or 2 or 3 years, and by a fine not exceeding $10,000.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law makes it a crime for any person to knowingly access and without permission alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data. Existing law additionally makes it a crime to knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or computer network.
This bill would specify that data, for purposes of these crimes includes sexually explicit recordings or images.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would create the crime of sexual extortion. The bill would make a person guilty of sexual extortion if he or she, with intent to coerce any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, threatens physical harm to the person or threatens the person in specified ways. ways, and that threat causes the person to engage in sexual conduct or to produce, provide, or distribute that image, video, or other recording. The bill would make a violation of that provision punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the state prison for 16 months or 2 or 3 years, county jail for 2, 3, or 4 years, and by a fine not exceeding $10,000. The bill would additionally make attempted sexual extortion punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail for 16 months or 2 or 3 years, and by a fine not exceeding $10,000.
This bill would additionally make a person guilty of sexual extortion if he or she knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening the person in specified ways. The bill would make a violation of that provision punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law makes it a crime for any person to knowingly access and without permission alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data. Existing law additionally makes it a crime to knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or computer network.
This bill would specify that data, for purposes of these crimes includes sexually explicit recordings or images.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would expand that definition to include obtaining property or other things of value, including sexual acts or sexually explicit images, from another person, induced by a wrongful use of force or fear, or under color of official right. By expanding the definition of a crime, this bill would create a state-mandated local program.This bill would create the crime of sexual extortion. The bill would make a person guilty of sexual extortion if he or she, with intent to coerce any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, threatens physical harm to the person or threatens the person in specified ways. The bill would make a violation of that provision punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the state prison for 16 months or 2 or 3 years, and by a fine not exceeding $10,000.
This bill would additionally make a person guilty of sexual extortion if he or she knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening the person in specified ways. The bill would make a violation of that provision punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law makes it a crime for any person to knowingly access and without permission alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data. Existing law additionally makes it a crime to knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or computer network.
This bill would specify that data, for purposes of these crimes includes sexually explicit recordings or images.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
This bill would expand that definition to include obtaining property or other things of value, including sexual acts or sexually explicit images, from another person, induced by a wrongful use of force or fear, or under color of official right. By expanding the definition of a crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
(a)Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
(b)For purposes of this chapter, consideration means anything of value, including sexual conduct as defined in subdivision (b) of Section 311.3, or an image of an intimate body part as defined in subparagraph (C) of paragraph (4) of subdivision (j) of Section 647.
(c)Notwithstanding subdivision (a), this section does not apply to a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part.
SEC. 2.Section 520 of the Penal Code is amended to read:520.Every person who extorts property or other consideration from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years.
SEC. 3.Section 523 of the Penal Code is amended to read:523.(a)Every person who, with intent to extort property or other consideration from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519 is punishable in the same manner as if such property or other consideration were actually obtained by means of such threat.
(b)(1)Every person who, with intent to extort property or other consideration from another, introduces ransomware into any computer, computer system, or computer network is punishable pursuant to Section 520 in the same manner as if such property or other consideration were actually obtained by means of the ransomware.
(2)Prosecution pursuant to this subdivision does not prohibit or limit prosecution under any other law.
(c)(1)Ransomware means a computer contaminant, as defined in Section 502, or lock placed or introduced without authorization into a computer, computer system, or computer network that restricts access by an authorized person to the computer, computer system, computer network, or any data therein under circumstances in which the person responsible for the placement or introduction of the ransomware demands payment of money or other consideration to remove the computer contaminant, restore access to the computer, computer system, computer network, or data, or otherwise remediate the impact of the computer contaminant or lock.
(2)A person is responsible for placing or introducing ransomware into a computer, computer system, or computer network if the person directly places or introduces the ransomware or directs or induces another person to do so, with the intent of demanding payment or other consideration to remove the ransomware, restore access, or otherwise remediate the impact of the ransomware.
SEC. 4.Section 524 of the Penal Code is amended to read:524.Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort property or other consideration from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment.
SEC. 5.Section 526 of the Penal Code is amended to read:526.Any person, who, with intent to obtain from another person any property or other consideration, delivers or causes to be delivered to the other person any paper, document or written, typed or printed form purporting to be an order or other process of a court, or designed or calculated by its writing, typing or printing, or the arrangement thereof, to cause or lead the other person to believe it to be an order or other process of a court, when in fact such paper, document or written, typed or printed form is not an order or process of a court, is guilty of a misdemeanor, and each separate delivery of any paper, document or written, typed or printed form shall constitute a separate offense.
SEC. 6.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
(b)For purposes of this chapter, consideration means anything of value, including sexual conduct as defined in subdivision (b) of Section 311.3, or an image of an intimate body part as defined in subparagraph (C) of paragraph (4) of subdivision (j) of Section 647.
(c)Notwithstanding subdivision (a), this section does not apply to a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part.
SEC. 2.Section 520 of the Penal Code is amended to read:520.Every person who extorts property or other consideration from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years.
SEC. 3.Section 523 of the Penal Code is amended to read:523.(a)Every person who, with intent to extort property or other consideration from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519 is punishable in the same manner as if such property or other consideration were actually obtained by means of such threat.
(b)(1)Every person who, with intent to extort property or other consideration from another, introduces ransomware into any computer, computer system, or computer network is punishable pursuant to Section 520 in the same manner as if such property or other consideration were actually obtained by means of the ransomware.
(2)Prosecution pursuant to this subdivision does not prohibit or limit prosecution under any other law.
(c)(1)Ransomware means a computer contaminant, as defined in Section 502, or lock placed or introduced without authorization into a computer, computer system, or computer network that restricts access by an authorized person to the computer, computer system, computer network, or any data therein under circumstances in which the person responsible for the placement or introduction of the ransomware demands payment of money or other consideration to remove the computer contaminant, restore access to the computer, computer system, computer network, or data, or otherwise remediate the impact of the computer contaminant or lock.
(2)A person is responsible for placing or introducing ransomware into a computer, computer system, or computer network if the person directly places or introduces the ransomware or directs or induces another person to do so, with the intent of demanding payment or other consideration to remove the ransomware, restore access, or otherwise remediate the impact of the ransomware.
SEC. 4.Section 524 of the Penal Code is amended to read:524.Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort property or other consideration from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment.
SEC. 5.Section 526 of the Penal Code is amended to read:526.Any person, who, with intent to obtain from another person any property or other consideration, delivers or causes to be delivered to the other person any paper, document or written, typed or printed form purporting to be an order or other process of a court, or designed or calculated by its writing, typing or printing, or the arrangement thereof, to cause or lead the other person to believe it to be an order or other process of a court, when in fact such paper, document or written, typed or printed form is not an order or process of a court, is guilty of a misdemeanor, and each separate delivery of any paper, document or written, typed or printed form shall constitute a separate offense.
SEC. 6.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
(b)For purposes of this chapter, consideration means anything of value, including sexual conduct as defined in subdivision (b) of Section 311.3, or an image of an intimate body part as defined in subparagraph (C) of paragraph (4) of subdivision (j) of Section 647.
(c)Notwithstanding subdivision (a), this section does not apply to a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part.
SEC. 2.Section 520 of the Penal Code is amended to read:520.Every person who extorts any money or other property or other consideration from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years.
SEC. 3.Section 523 of the Penal Code is amended to read:523.(a)Every person who, with intent to extort any money or other property or other consideration from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519 is punishable in the same manner as if such money or property or other consideration were actually obtained by means of such threat.
(b)(1)Every person who, with intent to extort money property or other consideration from another, introduces ransomware into any computer, computer system, or computer network is punishable pursuant to Section 520 in the same manner as if such money property or other consideration were actually obtained by means of the ransomware.
(2)Prosecution pursuant to this subdivision does not prohibit or limit prosecution under any other law.
(c)(1)Ransomware means a computer contaminant, as defined in Section 502, or lock placed or introduced without authorization into a computer, computer system, or computer network that restricts access by an authorized person to the computer, computer system, computer network, or any data therein under circumstances in which the person responsible for the placement or introduction of the ransomware demands payment of money or other consideration to remove the computer contaminant, restore access to the computer, computer system, computer network, or data, or otherwise remediate the impact of the computer contaminant or lock.
(2)A person is responsible for placing or introducing ransomware into a computer, computer system, or computer network if the person directly places or introduces the ransomware or directs or induces another person to do so, with the intent of demanding payment or other consideration to remove the ransomware, restore access, or otherwise remediate the impact of the ransomware.
SEC. 4.Section 524 of the Penal Code is amended to read:524.Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort money or other property or other consideration from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment.
SEC. 5.Section 526 of the Penal Code is amended to read:526.Any person, who, with intent to obtain from another person any money, article of personal property or other thing of value, consideration, delivers or causes to be delivered to the other person any paper, document or written, typed or printed form purporting to be an order or other process of a court, or designed or calculated by its writing, typing or printing, or the arrangement thereof, to cause or lead the other person to believe it to be an order or other process of a court, when in fact such paper, document or written, typed or printed form is not an order or process of a court, is guilty of a misdemeanor, and each separate delivery of any paper, document or written, typed or printed form shall constitute a separate offense.
SEC. 6.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SECTION 1.Section 267.5 is added to the Penal Code, to read:267.5.(a)Any person 18 years of age or older who threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct and the threat causes the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct is guilty of sexual extortion. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b)A person 18 years of age or older is guilty of attempted sexual extortion if a person threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this subdivision is punishable by imprisonment in the county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).(c)It is a separate offense under this section for each person subjected to the offense outlined in subdivision (a) or (b) and for each separate time a person is subjected to the offense in subdivision (a) or (b).(d)Nothing in this section shall preclude prosecution under any other provision of law.(e)As used in this section, the following terms have the following meanings:(1)Distribute means to transfer possession of, whether with or without consideration.(2)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.(3)Sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, any touching of an intimate body part, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.SEC. 2.Section 502 of the Penal Code is amended to read:502.(a)It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.(b)For the purposes of this section, the following terms have the following meanings:(1)Access means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.(2)Computer network means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.(3)Computer program or software means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.(4)Computer services includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.(5)Computer system means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.(6)Government computer system means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.(7)Public safety infrastructure computer system means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.(8)Data means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.(9)Supporting documentation includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.(10)Injury means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.(11)Victim expenditure means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.(12)Computer contaminant means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.(13)Internet domain name means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.(14)Electronic mail means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.(15)Profile means either of the following:(A)A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.(B)An Internet Web site users personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.(c)Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:(1)Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.(2)Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.(3)Knowingly and without permission uses or causes to be used computer services.(4)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.(5)Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.(6)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.(7)Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.(8)Knowingly introduces any computer contaminant into any computer, computer system, or computer network.(9)Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.(10)Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.(11)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.(12)Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.(13)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.(14)Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.(d)(1)Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.(2)Any person who violates paragraph (3) of subdivision (c) is punishable as follows:(A)For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(B)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(3)Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).(B)For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(C)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(4)Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:(A)For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.(5)Any person who violates paragraph (9) of subdivision (c) is punishable as follows:(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.(e)(1)In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.(2)In any action brought pursuant to this subdivision the court may award reasonable attorneys fees.(3)A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.(4)In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.(5)No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.(f)This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.(g)Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.(h)(1)Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.(2)Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employees activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).(i)No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.(j)For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.(k)In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:(1)The court shall consider prohibitions on access to and use of computers.(2)Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.(a)Any person 18 years of age or older who threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct and the threat causes the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct is guilty of sexual extortion. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)A person 18 years of age or older is guilty of attempted sexual extortion if a person threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this subdivision is punishable by imprisonment in the county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).
(c)It is a separate offense under this section for each person subjected to the offense outlined in subdivision (a) or (b) and for each separate time a person is subjected to the offense in subdivision (a) or (b).
(d)Nothing in this section shall preclude prosecution under any other provision of law.
(e)As used in this section, the following terms have the following meanings:
(1)Distribute means to transfer possession of, whether with or without consideration.
(2)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.
(3)Sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, any touching of an intimate body part, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.
SEC. 2.Section 502 of the Penal Code is amended to read:502.(a)It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.
(b)For the purposes of this section, the following terms have the following meanings:
(1)Access means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
(2)Computer network means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.
(3)Computer program or software means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.
(4)Computer services includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.
(5)Computer system means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.
(6)Government computer system means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.
(7)Public safety infrastructure computer system means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.
(8)Data means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.
(9)Supporting documentation includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.
(10)Injury means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
(11)Victim expenditure means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.
(12)Computer contaminant means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.
(13)Internet domain name means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.
(14)Electronic mail means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
(15)Profile means either of the following:
(A)A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.
(B)An Internet Web site users personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.
(c)Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1)Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2)Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3)Knowingly and without permission uses or causes to be used computer services.
(4)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5)Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7)Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8)Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9)Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.
(10)Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.
(11)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.
(12)Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.
(13)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.
(14)Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.
(d)(1)Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.
(2)Any person who violates paragraph (3) of subdivision (c) is punishable as follows:
(A)For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(3)Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(C)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(4)Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
(5)Any person who violates paragraph (9) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e)(1)In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.
(2)In any action brought pursuant to this subdivision the court may award reasonable attorneys fees.
(3)A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.
(4)In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.
(5)No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.
(f)This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.
(g)Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.
(h)(1)Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
(2)Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employees activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).
(i)No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
(j)For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.
(k)In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:
(1)The court shall consider prohibitions on access to and use of computers.
(2)Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Any person who does either of the following is guilty of sexual extortion: threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct and the threat causes the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct is guilty of sexual extortion. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(1) Threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with an intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).(2)Knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening physical harm to the person, threatening to injure the property or reputation of the person, or threatening to distribute an image or video of the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).(b)A person is guilty of attempted sexual extortion if a person threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this subdivision is punishable by imprisonment in the county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)(c)It is a separate offense under this section for each person subjected to the offense outlined in subdivision (a) or (b) and for each separate time a person is subjected to the offense in subdivision (a). (a) or (b).
(c)If the court finds at the time of conviction or sentencing that the person committed the offense in subdivision (a) as a result of sexual compulsion or for purposes of sexual gratification, the court may, pursuant to Section 290.006, order the person to register pursuant to the Sex Offender Registration Act. The court shall state on the record the reasons for its findings and the reasons for requiring registration.(d)This section does not prohibit an individual from being charged and convicted of separate criminal acts committed while violating or attempting to violate this section.(d)Nothing in this section shall preclude prosecution under any other provision of law.
(e)As used in this section, the following terms have the following meanings:
(1)Distribute means to transfer possession of, whether with or without consideration.
(2)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.
(3)Sexual conduct means any of the following:(A)Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals.(B)Penetration of the vagina or rectum by any object.(C)Masturbation for the purpose of sexual stimulation of the viewer.(D)Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.(E)Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.(F)Defecation or urination for the purpose of sexual stimulation of the viewer.(3)Sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, any touching of an intimate body part, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.
SEC. 2.Section 502 of the Penal Code is amended to read:502.(a)It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.
(b)For the purposes of this section, the following terms have the following meanings:
(1)Access means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
(2)Computer network means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.
(3)Computer program or software means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.
(4)Computer services includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.
(5)Computer system means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.
(6)Government computer system means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.
(7)Public safety infrastructure computer system means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.
(8)Data means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.
(9)Supporting documentation includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.
(10)Injury means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
(11)Victim expenditure means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.
(12)Computer contaminant means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.
(13)Internet domain name means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.
(14)Electronic mail means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
(15)Profile means either of the following:
(A)A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.
(B)An Internet Web site users personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.
(c)Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1)Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2)Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3)Knowingly and without permission uses or causes to be used computer services.
(4)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5)Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7)Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8)Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9)Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.
(10)Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.
(11)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.
(12)Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.
(13)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.
(14)Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.
(d)(1)Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.
(2)Any person who violates paragraph (3) of subdivision (c) is punishable as follows:
(A)For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(3)Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(C)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(4)Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
(5)Any person who violates paragraph (9) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e)(1)In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.
(2)In any action brought pursuant to this subdivision the court may award reasonable attorneys fees.
(3)A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.
(4)In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.
(5)No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.
(f)This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.
(g)Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.
(h)(1)Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
(2)Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employees activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).
(i)No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
(j)For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.
(k)In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:
(1)The court shall consider prohibitions on access to and use of computers.
(2)Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)Any person who does either of the following is guilty of sexual extortion:
(1) Threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with an intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).
(2)Knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening physical harm to the person, threatening to injure the property or reputation of the person, or threatening to distribute an image or video of the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b)It is a separate offense under this section for each person subjected to the offense outlined in subdivision (a) and for each separate time a person is subjected to the offense in subdivision (a).
(c)If the court finds at the time of conviction or sentencing that the person committed the offense in subdivision (a) as a result of sexual compulsion or for purposes of sexual gratification, the court may, pursuant to Section 290.006, order the person to register pursuant to the Sex Offender Registration Act. The court shall state on the record the reasons for its findings and the reasons for requiring registration.
(d)This section does not prohibit an individual from being charged and convicted of separate criminal acts committed while violating or attempting to violate this section.
(e)As used in this section, the following terms have the following meanings:
(1)Distribute means to transfer possession of, whether with or without consideration.
(2)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.
(3)Sexual conduct means any of the following:
(A)Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals.
(B)Penetration of the vagina or rectum by any object.
(C)Masturbation for the purpose of sexual stimulation of the viewer.
(D)Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.
(E)Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.
(F)Defecation or urination for the purpose of sexual stimulation of the viewer.
SECTION 1.SEC. 2.Section 502 of the Penal Code is amended to read:502.(a)It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.
(b)For the purposes of this section, the following terms have the following meanings:
(1)Access means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
(2)Computer network means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.
(3)Computer program or software means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.
(4)Computer services includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.
(5)Computer system means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.
(6)Government computer system means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.
(7)Public safety infrastructure computer system means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.
(8)Data means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.
(9)Supporting documentation includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.
(10)Injury means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
(11)Victim expenditure means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.
(12)Computer contaminant means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.
(13)Internet domain name means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.
(14)Electronic mail means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
(15)Profile means either of the following:
(A)A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.
(B)An Internet Web site users personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.
(c)Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1)Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2)Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3)Knowingly and without permission uses or causes to be used computer services.
(4)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5)Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7)Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8)Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9)Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.
(10)Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.
(11)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.
(12)Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.
(13)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.
(14)Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.
(d)(1)Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.
(2)Any person who violates paragraph (3) of subdivision (c) is punishable as follows:
(A)For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(3)Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(C)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(4)Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
(5)Any person who violates paragraph (9) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e)(1)In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.
(2)In any action brought pursuant to this subdivision the court may award reasonable attorneys fees.
(3)A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.
(4)In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.
(5)No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.
(f)This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.
(g)Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.
(h)(1)Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
(2)Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employees activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).
(i)No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
(j)For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.
(k)In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:
(1)The court shall consider prohibitions on access to and use of computers.
(2)Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.
SEC. 2.Section 518 of the Penal Code is amended to read:518.Extortion is the obtaining of property or other things of value, including sexual acts or sexually explicit images, from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.
(b)For the purposes of this section, the following terms have the following meanings:
(1)Access means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
(2)Computer network means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.
(3)Computer program or software means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.
(4)Computer services includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.
(5)Computer system means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.
(6)Government computer system means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.
(7)Public safety infrastructure computer system means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.
(8)Data means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.
(9)Supporting documentation includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.
(10)Injury means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
(11)Victim expenditure means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.
(12)Computer contaminant means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.
(13)Internet domain name means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.
(14)Electronic mail means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
(15)Profile means either of the following:
(A)A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.
(B)An Internet Web site users personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.
(c)Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1)Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2)Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3)Knowingly and without permission uses or causes to be used computer services.
(4)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5)Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7)Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8)Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9)Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.
(10)Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.
(11)Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.
(12)Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.
(13)Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.
(14)Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.
(d)(1)Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.
(2)Any person who violates paragraph (3) of subdivision (c) is punishable as follows:
(A)For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(3)Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(C)For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(4)Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
(5)Any person who violates paragraph (9) of subdivision (c) is punishable as follows:
(A)For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B)For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e)(1)In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.
(2)In any action brought pursuant to this subdivision the court may award reasonable attorneys fees.
(3)A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.
(4)In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.
(5)No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.
(f)This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.
(g)Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.
(h)(1)Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
(2)Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employees activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).
(i)No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
(j)For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.
(k)In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:
(1)The court shall consider prohibitions on access to and use of computers.
(2)Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.
SEC. 2.Section 518 of the Penal Code is amended to read:518.Extortion is the obtaining of property or other things of value, including sexual acts or sexually explicit images, from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| Oct 5, 2017 | Chaptered by Secretary of State. Chapter 518, Statutes of 2017. |
| Oct 5, 2017 | Approved by the Governor. |
| Sep 22, 2017 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 15, 2017 | Assembly amendments concurred in. (Ayes 38. Noes 0.) Ordered to engrossing and enrolling. |
| Sep 15, 2017 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 14, 2017 | Read third time. Passed. Ordered to the Senate. |
| Sep 5, 2017 | Read second time. Ordered to third reading. |
| Sep 1, 2017 | From committee: Do pass. (Ayes 16. Noes 0.) (September 1). |
| Jul 19, 2017 | July 19 set for first hearing. Placed on APPR. suspense file. |
| Jul 6, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 5, 2017 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 6. Noes 0.) (June 27). |
| Jun 12, 2017 | Referred to Com. on PUB. S. |
| Jun 1, 2017 | In Assembly. Read first time. Held at Desk. |
| May 31, 2017 | Read third time. Passed. (Ayes 40. Noes 0. Page 1329.) Ordered to the Assembly. |
| May 26, 2017 | Read second time and amended. Ordered to third reading. |
| May 25, 2017 | From committee: Do pass as amended. (Ayes 5. Noes 0. Page 1185.) (May 25). |
| May 19, 2017 | Set for hearing May 25. |
| May 1, 2017 | May 1 hearing: Placed on APPR. suspense file. |
| Apr 21, 2017 | Set for hearing May 1. |
| Apr 18, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 17, 2017 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 4. Noes 0. Page 599.) (April 4). |
| Mar 20, 2017 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB. S. |
| Mar 15, 2017 | Set for hearing April 4. |
| Mar 2, 2017 | Referred to Com. on PUB. S. |
| Feb 17, 2017 | From printer. May be acted upon on or after March 19. |
| Feb 16, 2017 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 15, 2017 | Unfinished Business SB500 Leyva et al. Concurrence | Senate Floor |
Passed |
|
| Sep 14, 2017 | SB 500 Leyva Senate Third Reading By GARCIA, C. | Assembly Floor |
Passed |
|
| Sep 1, 2017 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 27, 2017 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
|
| May 31, 2017 | Senate 3rd Reading SB500 Leyva et al. | Senate Floor |
Passed |
|
| May 25, 2017 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 1, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 4, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 1. Need For This Bill | ** Against | Apr 3, 2017 |
| 2. Reported Incidents Of Sexual Extortion | ** Against | Apr 3, 2017 |
| 20-Year-Old-Rosemead-Man-Gets-Nearly-40-Years-Behind-Bars-For-Revenge-Porn | ** Against | Apr 3, 2017 |
| 2017 | ** Against | Apr 3, 2017 |
| 3. First Amendment Restrictions On Criminalizing Threatening Speech | ** Against | Apr 3, 2017 |
| According To The Author Of This Bill: | ** Against | Apr 3, 2017 |
| American Civil Liberties Union of California | ** Against | Sep 15, 2017 |
| Association of Deputy District Attorneys | ** Support | Sep 15, 2017 |
| California Association Of Code Enforcement Officers | ** Support | Sep 15, 2017 |
| California College And University Police Chiefs Association | ** Support | Sep 15, 2017 |
| California District Attorneys Association | ** Against | Sep 15, 2017 |
| California Legislative Women's Caucus | ** Support | Jun 26, 2017 |
| California Narcotic Officers Association | ** Support | Sep 15, 2017 |
| California Public Defenders Association | * Against | Apr 4, 2017 |
| California State Sheriffs' Association | ** Support | Sep 15, 2017 |
| Common Sense Kids Action | ** Support | Jun 26, 2017 |
| legal momentum | ** Support | Sep 15, 2017 |
| Los Angeles County Professional Peace Officers Association | ** Support | Sep 15, 2017 |
| Los Angeles Deputy Sheriffs | ** Support | Sep 15, 2017 |
| Los Angeles Police Protective League | ** Support | Sep 15, 2017 |
| Losangeles.Cbslocal.Com | ** Against | Apr 3, 2017 |
| Orrick, Herington & Sutcliffe | * Support | Jun 27, 2017 |
| PURPOSE | ** Against | Apr 3, 2017 |
| Riverside Sheriffs' Association | ** Support | Sep 15, 2017 |
| San Diego County District Attorney | ** Support | Jun 26, 2017 |
| Temecula-Student-Sentenced-Federal-Prison-Sextortion-Case [As Of Mar. 27, 2017].) | ** Against | Apr 3, 2017 |
| Usao-Cdca | ** Against | Apr 3, 2017 |
| Woodside Homes | * Support | Apr 4, 2017 |
| Www.Justice.Gov | ** Against | Apr 3, 2017 |
| [As Of Mar. 27, 2017].) | ** Against | Apr 3, 2017 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 500
:
SENATE PUBLIC SAFETY COMMITTEE: 4-0, 4/4/17
AYES: Skinner, Jackson, Stone, Wiener
NO VOTE RECORDED: Anderson, Bradford, Mitchell
SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/25/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NO VOTE RECORDED: Bates, Nielsen
SENATE FLOOR: 40-0, 5/31/17
AYES: Allen, Anderson, Atkins, Bates, Beall, Berryhill, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk
ASSEMBLY FLOOR: 75-0, 9/14/17 - See last page for vote
DIGEST:
This bill expands the crime of extortion to include not only the obtaining of property, but also the obtaining of other consideration, including sexual conduct or images of intimate body parts.
Assembly Amendments
recast the provisions of this bill to be incorporated into the existing extortion statute and provide new definitions for the terms “extortion” and “consideration.”
Existing law:
- Defines "extortion" as the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. (Pen. Code, § 518.)
- States that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in county jail for two, three or four years. (Pen. Code, § 520.)
- Specifies that fear, sufficient to constitute extortion, may be induced by a threat of any of the following:
- To do an unlawful injury to the person or property of the individual threatened or of a third person;
- To accuse the individual threatened, or any relative of his, or member of his family, of any crime;
- To expose, or to impute to him or them any deformity, disgrace or crime; or,
- To expose, any secret affecting him or them. (Pen. Code, § 519.)
- Defines rape to include an act of sexual intercourse accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (Pen. Code, § 261, subd. (a)(2).)
- Defines “duress” for purposes of rape to mean a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (Pen. Code, § 261, subd. (b).)
- Provides that any person who knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data is guilty of a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(1) and (d)(1).)
- Provides that any person who knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network is guilty of a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(2) and (d)(1).)
This bill:
- Redefines "extortion" as "the obtaining of property or other consideration from another, with his or her consent."
- Defines "consideration" as anything of value, including sexual conduct, or an image of an intimate body part, as specified.
- Provides that notwithstanding the definition of extortion, a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part is not guilty of extortion.
- Makes conforming cross-references to other extortion statutes.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Assembly Appropriations Committee:
- Unknown, potentially moderate costs (GF), to the California Department of Corrections (CDCR) for new commitments to state prison.
For example, if three individuals per year are convicted of the expanded definition of extortion and are committed to state prison, based on their prior criminal history, for the mid-sentence of three years, the first year costs will be $87,000, the second year cost will be $174,000, and third year costs, and every year thereafter, will be $261,000, assuming $29,000 per year for a contract bed. In 2016, over 20 individuals were committed to CDCR for extortion as the principal offense, and over 60 were admitted for extortion as a subordinate offense.
- Potential increase in local incarceration costs, offset to degree by fine revenue.
Legal Momentum (source)
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California State Sheriffs’ Association
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
Riverside Sheriffs’ Association
OPPOSITION: (Verified 9/14/17)
American Civil Liberties Union of California
California District Attorneys Association
ASSEMBLY FLOOR: 75-0, 9/14/17
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Daly, Gloria, Muratsuchi, Quirk
Prepared by: Stella Choe / PUB. S. /
9/15/17 9:11:25
**** END ****
SENATE THIRD READING
STR Bill Id:SB 500
Author:(Leyva)
As Amended Ver:July 6, 2017
Majority vote
SENATE VOTE: 40-0
Committee | Votes | Ayes | Noes |
Public Safety | 6-0 | Jones-Sawyer, Lackey, Flora, Gonzalez Fletcher, Rubio, Santiago | |
Appropriations | 16-0 | Gonzalez Fletcher, Bigelow, Bloom, Bocanegra, Bonta, Brough, Calderon, Chau, Eggman, Fong, Friedman, Gallagher, Eduardo Garcia, Jones-Sawyer, Obernolte, Reyes |
|
SUMMARY: Expands the crime of extortion to include not only the obtaining of property, but also the obtaining of other consideration, including sexual conduct or images of intimate body parts. Specifically, this bill:
- Redefines "extortion" as "the obtaining of property or other consideration from another, with his or her consent."
- Defines "consideration" as anything of value, including sexual conduct, or an image of an intimate body part, as specified.
- Provides that notwithstanding the definition of extortion, a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part is not guilty of extortion.
- Makes conforming cross references to other extortion statutes.
EXISTING LAW:
- Defines "extortion" as the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
- Specifies that fear, sufficient to constitute extortion, may be induced by a threat of any of the following:
- To do an unlawful injury to the person or property of the individual threatened or of a third person;
- To accuse the individual threatened, or any relative of his, or member of his family, of any crime;
- To expose, or to impute to him or them any deformity, disgrace or crime; or,
- To expose, any secret affecting him or them.
- States that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in county jail for two, three or four years.
- Provides that every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing expressing or implying, or adapted to imply, any threat, as specified, is punishable in the same manner as if such money or property were actually obtained by means of such threat.
- Provides that every person who, with intent to extort money or other consideration from another, introduces ransomware into any computer, computer system, or computer network is punishable in the same manner as if such money or other consideration were actually obtained by means of the ransomware.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
- Unknown, potentially moderate costs (General Fund), to the California Department of Corrections (CDCR) for new commitments to state prison.
For example, if three individuals per year are convicted of the expanded definition of extortion and are committed to state prison, based on their prior criminal history, for the mid-sentence of three years, the first year costs will be $87,000, the second year cost will be $174,000, and third year costs, and every year thereafter, will be $261,000, assuming $29,000 per year for a contract bed. In 2016, over 20 individuals were committed to CDCR for extortion as the principal offense, and over 60 were admitted for extortion as a subordinate offense.
- Potential increase in local incarceration costs, offset to degree by fine revenue.
COMMENTS: According to the author, "As perpetrators have found new ways to target their victims, we must make sure that California law keeps up with these new forms of extortion that can directly victimize young adults. Faced with the fear of having their private images shared on the Internet or sent to family or friends, victims—often teens and young women—are forced to comply with the perpetrators' demands. It is simply that, because of ambiguity in California law, perpetrators of sextortion can currently be charged with a lesser crime and victims do not receive the justice that they deserve. Senate Bill 500 will correct this injustice."
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001702
Date of Hearing: July 19, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 500
Author:(Leyva) – As Amended Ver:July 6, 2017
Policy Committee: | Public Safety | Vote: | 6 - 0 |
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Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill redefines extortion to also include obtaining specified sexual conduct or an image of an intimate body part, as defined, induced by wrongful use of force or fear, or under color of official right.
FISCAL EFFECT:
- Unknown, potentially moderate costs (GF), to the California Department of Corrections (CDCR) for new commitments to state prison.
For example, if three individuals per year are convicted of the expanded definition of extortion and are committed to state prison, based on their prior criminal history, for the mid-sentence of three years, the first year costs will be $87,000, the second year cost will be $174,000, and third year costs, and every year thereafter, will be $261,000, assuming $29,000 per year for a contract bed. In 2016, over 20 individuals were committed to CDCR for extortion as the principal offense, and over 60 were admitted for extortion as a subordinate offense.
- Potential increase in local incarceration costs, offset to degree by fine revenue.
COMMENTS:
- Background. Current law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by the wrongful use of force or fear, or under color of official right. Current law states that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, must be punished by imprisonment in county jail for two, three or four years, or state prison pursuant to Realignment, i.e. if the individual had a prior qualifying felony conviction.
- People v. Bollaert. Recently, in People v. Bollaert (2016) 48 Cal.App.4th 699, the Court of Appeal upheld an extortion conviction based on the defendant’s conduct of obtaining and displaying nude photographs and private information on one Web site, while taking payments from victims on another Web site to remove the contents. The court reasoned that the defendant committed extortion based on threatening to expose a secret because the photographs were secret to anyone who had not viewed defendant's Web site.
- Purpose. According to the author, “As perpetrators have found new ways to target their victims, we must make sure that California law keeps up with these new forms of extortion that can directly victimize young adults. Faced with the fear of having their private images shared on the Internet or sent to family or friends, victims—often teens and young women—are forced to comply with the perpetrators’ demands.”
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing: June 27, 2017
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SBPCA Bill Id:SB 500
Author:(Leyva) – As Amended Ver:May 26, 2017
SUMMARY: Creates the crime of “sextortion” which prohibits a threat to distribute an image of a person’s intimate body parts of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce additional images. Specifically, this bill:
- Provides that any person 18 years of age or older who threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct and the threat causes the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct is guilty of sexual extortion.
- Punishes sexual extortion by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000; or by imprisonment in the county jail pursuant to realignment for two, three, or four years, and by a fine not exceeding $10,000.
- A person 18 years of age or older is guilty of attempted sexual extortion if a person threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct.
- Punishes attempted sexual extortion by imprisonment in the county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the county jail under realignment for 16 months, or two, or three years, and by a fine not exceeding $10,000.
- Provides a separate offense of sexual extortion occurs for each separate victim and each separate incident.
- Provides that nothing in this section precludes prosecution under any other law.
- Defines the following terms for purposes of this crime;
- “Distribute” means “to transfer possession of, whether with or without consideration.”
- “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.”
- “Sexual conduct” means any of the following, whether actual or simulated: “sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, any touching of an intimate body part, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.”
- “Distribute” means “to transfer possession of, whether with or without consideration.”
- Revises the definition of “data” in existing provisions of law related to computer hacking to include sexually-explicit recordings or images.
EXISTING LAW:
- Defines “extortion” as the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. (Pen. Code, § 518.)
- Specifies that fear, sufficient to constitute extortion, may be induced by a threat of any of the following:
- To do an unlawful injury to the person or property of the individual threatened or of a third person;
- To accuse the individual threatened, or any relative of his, or member of his family, of any crime;
- To expose, or to impute to him or them any deformity, disgrace or crime; or,
- To expose, any secret affecting him or them. (Pen. Code, § 519.)
- To do an unlawful injury to the person or property of the individual threatened or of a third person;
- States that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in county jail for two, three or four years. (Pen. Code, § 520.)
- Defines rape to include an act of sexual intercourse accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (Pen. Code, § 261, subd. (a)(2).)
- Defines “duress” for purposes of rape to mean a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have bene performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (Pen. Code, § 261, subd. (b).)
- Criminalizes other sexual conduct accomplished by means of duress. (See Pen. Code, §§ 286, subd. (c)(2)(A) [sodomy]; 288, subd. (b)(1) [lewd or lascivious acts on a child under 14 years of age]; 288a, subd. (c)(2)(A) [oral copulation]; 289, subd. (a)(1)(A) [sexual penetration].)
- Provides that every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit specified sex offenses involving the minor shall be punished by imprisonment in state prison. (Pen. Code, § 288.3.)
- Provides that every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, with intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct shall be punished by either by imprisonment in the county jail for up to one year, by a fine not exceeding $1,000, or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not exceeding $10,000, or by both the fine and imprisonment. (Pen. Code, § 311.1.)
- Provides that every person who knowingly possesses or controls any matter, representation of information, data, or image, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding $2,500, or by both the fine and imprisonment. (Pen. Code, § 311.14.)
- Provides that any person who knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data is guilty a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(1) & (d)(1).)
- Provides that any person who knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network is guilty of is guilty a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(2) & (d)(1).)
FISCAL EFFECT: Unknown
COMMENTS:
- Author's Statement: According to the author, “As perpetrators have found new ways to target their victims, we must make sure that California law keeps up with these new forms of extortion that can directly victimize young adults. Faced with the fear of having their private images shared on the Internet or sent to family or friends, victims—often teens and young women—are forced to comply with the perpetrators’ demands. It is simply that, because of ambiguity in California law, perpetrators of sextortion can currently be charged with a lesser crime and victims do not receive the justice that they deserve. Senate Bill 500 will correct this injustice.”
- Extortion: The crime of extortion consists of obtaining property from another with consent but induced by a wrongful use of force or fear. (Pen. Code, § 518.) Fear, for purposes of the crime of extortion, can be induced by a threat of exposing or impute to the person “a deformity, disgrace, or crime” or by threat of exposing a secret affecting him or her. (Pen. Code, § 519; see also People v. Lavine (1931) 115 Cal.App 289 [The threat to make public "certain secrets" about another may be the basis for extortion].)
The thing held secret must be unknown to general public or to part of public which might be interested in finding out about it. Additionally, the secret must affect the threatened person in some way so unfavorable to his or her reputation or other interest that he would probably pay out money or property to avoid its threatened exposure. (People v. Peniston (1966) 242 Cal.App.2d 719, 722.) Thus, where the defendant possessed partially nude studio photographs of the complaining witness, and told her that unless she gave him money he would take them to her family, the court upheld an extortion conviction. (Id. at pp. 722-723.)
Recently, in People v. Bollaert (2016) 48 Cal.App.4th 699, the Court of Appeal upheld an extortion conviction based on the defendant’s conduct of obtaining and displaying nude photographs and private information on one Web site, while taking payments from victims on another Web site to remove the contents. The court reasoned that the defendant committed extortion based on threatening to expose a secret because the photographs were secret to anyone who had not viewed defendant's Web site. (Ibid.)
The U.S. Attorney’s Office for the Central District of California defines “sextortion” as “a type of extortion or blackmail of a victim who is usually asked for a nude image. The perpetrator typically threatens to publicly release a nude image unless a victim performs a sexual act or complies with other demands.” (https://www.justice.gov/usao-cdca/pr/glendale-man-who-admitted-hacking-hundreds-computers-sextortion-case-sentenced-five)
For example, in U.S. v Abrahams (C.D. Cal 2014) No. SA 13-422M, the defendant took control of victims’ email accounts, social media accounts, and their computers – which allowed him to remotely turn on web cameras and take pictures of them naked. The defendant used the nude photos to threaten the women to publicly post the compromising photos to the victims’ social media accounts – unless they either sent more nude photos or videos, or engaged in a Skype session with him and complied with his demands. Based on this conduct, the defendant was convicted of one count of computer hacking and three counts of extortion and was sentenced to 18 months in federal prison. (http://www.scpr.org/news/2014/03/17/42876/temecula-student-sentenced-in-miss-teen-usa-extort/ )
Thus, the conduct this bill seeks to criminalize is already covered by the extortion statute. - Duress as Applied to Forcible Sex Offenses: If a person obtains sex through duress, or attempts to do so, he or she could be prosecuted for the underlying sex offense or the attempted commission of that offense.
For example, rape is defined as an act of sexual intercourse accomplished with a person under various circumstances, including “when it is accomplished against a person’s will by means of force, violence, duress….” (Pen. Code, § 261, subd. (a)(2).) Other sex offenses have similar provisions proscribing the sexual conduct when the act is accomplished against the victim’s will by means of duress. (See e.g., Pen. Code, § 286, subd. (c)(2) [sodomy]; Pen. Code, § 288, subd. (b) [lewd acts]; Pen. Code, § 288a, subd. (c)(2) [oral copulation].)
In this context, “duress” means “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.” (See e.g. Pen. Code, § 261, subd. (b).)
Thus, if the perpetrator causes a victim to acquiesce to a sex act based on a threat to distribute explicit images, the perpetrator can be charged with the sex offense.
Additionally, the California Supreme Court has held that an attempted rape can occur without an actual touching. (People v. Marshall (1997) 15 Cal.4th 1, 39.) An attempt occurs when there is an effort to commit a crime, but it fails, is prevented, or is intercepted. Forcible rape is defined act of sexual intercourse accomplished by means of force, violence, duress, menace, or fear of bodily injury. An attempted forcible rape is an unsuccessful effort directed towards accomplishing an act of sexual intercourse by force or fear. (Ibid.) Thus, for purposes of the conduct addressed by this bill, whether or not the victim actually submits to sexual intercourse or other sexual conduct under duress, the perpetrator can be found guilty of attempt.
For example, in Serrano v. Butler (N.D. Cal 2010) No. C 06-04433 JW, 2010 U.S. Dist. LEXIS 137617, the defendant stole a sex video that his ex-girlfriend had made with a former boyfriend and threatened to e-mail copies of the video to her employer, her school contacts and to pornography websites if she did not make a sex video with him. He said he would return the prior video to her if she made a new sex video with him. Based on these facts, Serrano was charged and convicted of attempted rape under the theory that he tried to coerce the victim to engage in sexual intercourse by threatening to disseminate a sex video. (Ibid.) - Other Applicable Statutes: In addition to the crimes mentioned above, the conduct proscribed by this bill can be prosecuted under other criminal statutes as well, depending on the facts of the case.
For example, if the perpetrator is an adult and the victim is a minor, and the perpetrator seeks to have the minor participate in sexual conduct, the perpetrator could be charged with contacting or communicating with a minor with the intent to commit an enumerated sex offense. (Pen. Code, § 288.3) If the perpetrator seeks to have the minor send him or her sexually-explicit images, then the perpetrator could be charged under child pornography laws. (See e.g., Pen. Code, §§ 311.1, 311.14.)
Regardless of the age of the victim, if the perpetrator hacked into a computer to obtain digital images of the victim, the perpetrator can be charged with computer hacking. (Pen. Code, § 502.)
Therefore, while current law does not explicitly have a criminal statute prohibiting “sextortion” the conduct is nevertheless already illegal.
- Recent Veto Messages Regarding Particularization of Crimes: As noted above, the offense of sexual extortion is criminal behavior already prohibited by existing laws such as extortion, computer hacking, and attempted rape. In the 2015-2016 Legislative Session, the Governor vetoed nearly a dozen bills which redefined conduct that was already criminal.
For example, in his veto messages for SB 110 and SB 456 of 2015, the Governor stated:
“While I'm sympathetic and utterly committed to ensuring maximum safety for California's school children, the offensive conduct covered by this bill is already illegal.
In recent decades, California has created an unprecedented number of new and detailed criminal laws. Before we keep enacting more, I think we should pause and reflect on the fact that our bulging criminal code now contains in excess of 5,000 separate provisions, covering almost every conceivable form of human misbehavior.”
Similarly, in his 2015 veto message for AB 144, AB 849, SB 168, SB 170, SB 271, SB 333, SB 347, SB 716, and SB 722 the Governor said:
“Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
“Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
“Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.”
Does creating the new crime of sexual extortion further complicate California’s criminal code by particularizing crimes that are already illegal without any commensurate benefit?
- Punishment for Attempted Sexual Extortion: Generally under existing law attempts to commit a crime are punishable by imprisonment for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (Pen. Code, § 664, subd. (a).)
This bill deviates from this general principle. A completed offense of sexual extortion would be punishable by imprisonment in the county jail for two, three, or four years. An attempted sexual extortion would be punishable by imprisonment in the county jail for 16 months, or two, or three years.
Should the punishment for attempted sexual extortion be consistent with punishment for other attempts in accordance with Penal Code section 664? - Argument in Support: According to Legal Momentum, a co-sponsor of this bill, “Sexual extortion occurs when a perpetrator obtains sexual images of a victim and then uses the threat of distributing the sexual images to demand additional images or in-person sexual acts. Presented with this threat, victims- often teenagers and young women- have no real choice but to comply with the predator’s demands. Victims of sexual extortion experience the same irreparable harm as other sexual assault victims and rape victims.
“We recently published a report, ‘A Call to Action: Ending Sextortion in the Digital Age,’ together with the Thompson Reuters Foundation and Orrick, Herrington & Sutcliffe LLP. Our report examines how sexual extortion had proliferated in the digital age. As the report discusses, the FBI has designated sexual extortion as the fastest growing threat to Internet safety for children, teens and women. The National Center for Missing and Exploited Children received more than 800 sextortion-related tips between 2013 and 2015. 78% of reported victims were girls, with an average age of 15, and more than 20% of reported sexual incidents involved multiple victims. These statistics are alarming, particularly because like other sexual assault crimes, sexual extortion is likely underreported.
“Given how easily sexual extortion can be proliferated digitally, and the harm it causes, it is critical that California laws address the issue head-on. Because only a handful of states have expressly criminalized sexual extortion, when sexual extortion occurs, it usually is not prosecuted, and victims have no recourse.” - Argument in Opposition: According to the American Civil Liberties Union of California, “Without discounting the serious harms such conduct may cause, we believe existing law already adequately punishes this much of this behavior.
“Under current law, a person can already be convicted of rape if an act of sexual intercourse is ‘accomplished against a person’s will by…duress…’ (Penal Code, § 61, subd. (a)(2).) Under the statute, ‘duress’ is defined as ‘a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.’ (Penal Code, §261, subd. (b).) The statute goes on to provide that, ‘[t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.’ (Id.) Likewise, if a person is convicted of a lewd and lascivious act on a child under 14 through ‘duress’ or convicted of oral copulation accomplished against a person under 14 through ‘duress,’ the person would be guilty of a felony and punished by up to 10 or 14 years, respectively, in prison. (Penal Code, §§288, subd. (b)(1); 288a, subd. (c)(2).) If the person, with the intent to commit one of these crimes, takes a ‘direct but ineffectual act done toward its commission,’ the person can be convicted of an attempt to commit one of the aforementioned crimes. (Penal Code, §21a.)
“In addition, any act in which the person, ‘through force, fear, coercion, deceit, violence duress, menace, or threat of unlawful injury to the victim or to another person, causes a person under 18 years of age to engage in a commercial sex act’ could, under certain circumstances, constitute criminal profiteering. (Penal Code, § 186.2, subd. (a)(30).) For purposes of the criminal profiteering statute, ‘commercial sex act’ is defined to means ‘any sexual conduct on account of which anything of value is given or received by any person.’ (Id.) A person can also be convicted of human trafficking if the person causes a minor to engage in a commercial sex act through ‘…violence, duress, menace, or threat of unlawful injury…’ and can be punished by 15-years-to-life in prison. (Penal Code, §236.1, subd. (c).)
“Other acts described by SB 500 can be charged under other existing statutes, such as hacking (Penal Code, §502), possession of child pornography (see, e.g. Penal Code, §§311.1, 311.2), or extortion (Penal Code, §518).” - Related Legislation:
- AB 324 (Kiley) deletes the requirement that a victim be identifiable for the crimes of invasion of privacy by means of secret recording. AB 324 is pending hearing in the Senate Public Safety Committee.
- SB 784 (Galgiani) authorizes an additional fine of up to $1,000 where a defendant has been convicted of invading another person’s privacy by secretly taking photographs or recording images of that person, as specified, and intentionally distributes that image. SB 784 is pending hearing in the Assembly Committee on Privacy and Consumer Protection.
- AB 324 (Kiley) deletes the requirement that a victim be identifiable for the crimes of invasion of privacy by means of secret recording. AB 324 is pending hearing in the Senate Public Safety Committee.
- Prior Legislation:
- SB 1137 (Hertzberg), Chapter 725, Statutes of 2016, separately defines as a felony the crime of placing a contaminant or lock on a computer or computer system for the purpose of locking or controlling the computer, computer system or data files, coupled with a demand for payment of money or other consideration before the lock will be removed of control returned to owner or authorized user; and specifically defines such a contaminant or lock as “ransomware.”
- SB 1255 (Canella), Chapter 863, Statutes of 2014, expanded the elements of “revenge porn.”
- SB 255 (Canella), Chapter 466, Statutes of 2013, created the crime of “revenge porn” which prohibits 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.
- SB 1137 (Hertzberg), Chapter 725, Statutes of 2016, separately defines as a felony the crime of placing a contaminant or lock on a computer or computer system for the purpose of locking or controlling the computer, computer system or data files, coupled with a demand for payment of money or other consideration before the lock will be removed of control returned to owner or authorized user; and specifically defines such a contaminant or lock as “ransomware.”
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Co-Sponsor)
Legal Momentum (Co-Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Legislative Women’s Caucus
California Narcotic Officers Association
California State Sheriffs’ Association
Common Sense Kids Action
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs’ Association
San Diego County District Attorney
Opposition
American Civil Liberties Union
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 500
:
SENATE PUBLIC SAFETY COMMITTEE: 4-0, 4/4/17
AYES: Skinner, Jackson, Stone, Wiener
NO VOTE RECORDED: Anderson, Bradford, Mitchell
SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/25/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NO VOTE RECORDED: Bates, Nielsen
SOURCE: California District Attorneys Association
Legal Momentum
DIGEST:
This bill creates the crime of sexual extortion and makes it punishable as either a misdemeanor or county jail-eligible felony.
Existing law:
- Provides that any person who knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data is guilty of a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(1) and (d)(1).)
- Provides that any person who knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network is guilty of is guilty of a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(2) and (d)(1).)
- Defines “data” for purposes of the above provisions to mean a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. (Pen. Code, § 502, subd. (b)(8).)
- States that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in county jail for two, three or four years. (Pen. Code, § 520.)
- Defines rape to include an act of sexual intercourse accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (Pen. Code, § 261, subd. (a)(2).)
- Defines “duress” for purposes of rape to mean a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (Pen. Code, § 261, subd. (b).)
This bill:
- Provides that any person, 18 years of age or older, who threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct and the threat causes the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct is guilty of sexual extortion.
- Specifies that sexual extortion is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in county jail for two, three, or four years, and by a fine not exceeding $10,000.
- Provides that attempted sexual extortion is punishable by imprisonment in the county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in county jail for 16 months or two or three years, and by a fine not exceeding $10,000.
- Revises the definition of “data” in existing provisions of law related to computer hacking to include sexually explicit recordings or images.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee:
- State prison: Potential increase in state costs (General Fund) for new commitments to state prison for persons who otherwise would not have been convicted under the extortion or other sex crime statutes. To the extent that the provisions of this bill lead to even one additional commitment to state prison, it would result in additional General Fund costs of $75,560 annually to house that person in a state institution.
- County jail: Potential increase in local incarceration costs (local funds) to the extent persons otherwise would not have been convicted of the offense of extortion or other offenses under existing law.
California District Attorneys Association (co-source)
Legal Momentum (co-source)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California State Sheriffs’ Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs’ Association
OPPOSITION: (Verified 5/25/17)
American Civil Liberties Union of California
5/27/17 17:21:33
**** END ****
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 500 (Leyva) - Extortion
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 25, 2017
Bill Summary:
SB 500 would create the crime of sexual extortion.
Fiscal Impact:
- State prison: Potential increase in state costs (General Fund) for new commitments to state prison for persons who otherwise would not have been convicted under the extortion or other sex crime statutes. To the extent that the provisions of this measure lead to even one additional commitment to state prison, it would result in additional General Fund costs of $75,560 annually to house that person in a state institution.
- County jail: Potential increase in local incarceration costs (local funds) to the extent persons otherwise would not have been convicted of the offense of extortion or other offenses under existing law.
Committee Amendments:
Limit the offense to persons 18 years of age or older.
-- END --
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 500 (Leyva) - Extortion
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 500 would create the crime of sexual extortion.
Fiscal Impact:
- State prison: Potential increase in state costs (General Fund) for new commitments to state prison for persons who otherwise would not have been convicted under the extortion or other sex crime statutes. To the extent that the provisions of this measure lead to even one additional commitment to state prison, it would result in additional General Fund costs of $75,560 annually to house that person in a state institution.
- County jail: Potential increase in local incarceration costs (local funds) to the extent persons otherwise would not have been convicted of the offense of extortion or other offenses under existing law.
Background:
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.
Additionally, existing law defines rape to include an act of sexual intercourse accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. “Duress” for purposes of rape is defined to mean a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have bene performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
Proposed Law:
This bill creates the new crime of sexual extortion punishable by imprisonment in a county jail for not more than one year and a fine not exceeding $2,000 or by imprisonment pursuant to the 2011 Realignment Legislation for two, three, or four years and by a fine not exceeding $10,000 if the person:
- Threatened physical harm to a person, threatened to injure the property or reputation of a person, or threatened to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct;
- With the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct.
Additionally, SB 500 provides that a person guilty of attempted sexual extortion is punishable by imprisonment in the county jail for up to a year or pursuant to the 2011 Realignment Legislation for 16 months or two or three years and by a fine not exceeding $10,000.
Staff Comments:
By separately establishing the offense of sexual extortion, this bill potentially could result in new commitments and longer sentences being imposed, both to state prison and county jail. Pursuant to Penal Code section 1170, subdivision (h)(3), felony sentences imposed on defendants with the following criminal history must be served in state prison: 1) a defendant has a prior or current felony conviction for a serious or violent felony; 2) a defendant is required to register as a sex offender; or 3) a defendant is convicted of a crime and as part of the sentence an enhancement pursuant to Penal Code section 186.11 is imposed.
The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. To the extent that defendants convicted of the conduct that is the subject of this bill are already largely reflected in the historical commitments to state prison and county jail under the existing extortion and sex crime statutes, the impact of this bill would be somewhat mitigated. However, while a defendant cannot be punished for an offense under more than one provision of law (Pen. Code, § 654.), he or she could be charged with both offenses, which could potentially have an impact on the outcome of the proceedings that otherwise may not have occurred under existing law.
In 2015, the Governor vetoed a number of criminal justice bills because they created new crimes for conduct that was prohibited already. In the veto message for those bills, the Governor stated:
Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.
The offense of sexual extortion is criminal behavior already prohibited by existing law as either extortion, rape, or another sex crime.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: SB 500 Hearing Date: April 4, 2017
Author: | Leyva | ||
Version: | March 20, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Sexual Extortion
HISTORY
Source: California District Attorneys Association
Legal Momentum
Prior Legislation: SB 1137 (Hertzberg), Ch. 725, Stats. 2016
SB 1255 (Canella), Ch. 863, Stats. 2014
SB 255 (Canella), Ch. 466, Stats. 2013
AB 919 (Houston), Ch. 583, Stats. 2008
SB 1484 (Ackerman), Ch. 666, Stats. 2004
Support: California State Sheriffs’ Association
Opposition: American Civil Liberties Union of California
PURPOSE
The purpose of this bill is to create the new crime of sexual extortion punishable as either a felony or an alternate felony-misdemeanor, depending on the circumstances, and makes the new crime a registerable offense under the Sex Offender Registration Act.
Existing law provides that any person who knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data is guilty a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment.. (Pen. Code, § 502, subds. (c)(1) and (d)(1).)
Existing law provides that any person who knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network is guilty of is guilty a felony punishable by imprisonment in county jail for 16 months, or two or three years and a fine not exceeding $10,000, or a misdemeanor punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment. (Pen. Code, § 502, subds. (c)(2) and (d)(1).)
Existing law defines “data” for purposes of the above provisions to mean a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. (Pen. Code, § 502, subd. (b)(8).)
This bill specifies that data includes, but is not limited to, sexually explicit recordings or images.
Existing law states that any person who extorts money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in county jail for two, three or four years. (Pen. Code, § 520.)
Existing law defines fear for purposes of extortion to include a threat of any of the following:
- To do an unlawful injury to the person or property of the individual threatened or of a third person;
- To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime;
- To expose or to impute to him, her, or them a deformity, disgrace or crime.
- To expose a secret affecting him or her, or them;
- To report his, her or their immigration status or suspected immigration status. (Pen. Code, § 519.)
This bill creates the new crime of sexual extortion punishable as follows:
- By imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the state prison for 16 months or two or three years, and by a fine not exceeding $10,000 if the person:
- Threatened physical harm to a person, threatened to injure the property or reputation of a person, or threatened to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct;
- With the intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct.
- By imprisonment in the state prison for two, three, or four years, and by a fine not exceeding $10,000 if the person:
- Knowingly caused any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct,
- By threatening physical harm to the person, threatening to injure the property or reputation of the person, or threatening to distribute an image or video of the intimate body part or parts of the person or of the person engaged in sexual conduct.
This bill provides that it is a separate offense for each victim and each incident of sexual extortion.
This bill provides the following definitions for purposes of sexual extortion:
- “Distribute” means to transfer possession of, whether with or without consideration.
- “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.
- “Sexual conduct” means any of the following: (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals; (2) Penetration of the vagina or rectum by any object; (3) Masturbation for the purpose of sexual stimulation of the viewer; (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer; (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer; and (6) Defecation or urination for the purpose of sexual stimulation of the viewer.
This bill states that the provisions of this bill do not prohibit an individual from being charged and convicted of separate criminal acts committed while violating or attempting to violate the new section.
Existing law defines rape to include an act of sexual intercourse accomplished against a victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (Pen. Code, § 261, subd. (a)(2).)
Existing law defines “duress” for purposes of rape to mean a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have bene performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (Pen. Code, § 261, subd. (b).)
Existing law generally punishes rape by imprisonment in state prison for three, six or eight years. (Pen. Code, § 264, subd. (a).)
Existing law punishes attempts to commit a crime by imprisonment for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (Pen. Code, § 664, subd. (a).)
Existing law provides that every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit specified sex offenses involving the minor shall be punished by imprisonment in state prison. (Pen. Code, § 288.3.)
Existing law provides that any person ordered by a court to register as a sex offender for any offense not specifically enumerated in the Sex Offender Registration Act shall so order if the court finds that the person committed the offense as a result of sexual compulsion or for the purposes of sexual gratification. The court shall state on the record for its findings and the reasons for requiring registration. (Pen. Code, § 290.006.)
This bill specifies that a court may order a person convicted of sexual extortion to register as a sex offender pursuant to the above provision.
COMMENTS
1. Need for This Bill
According to the author of this bill:
Sexual extortion is not a new concept, but it is increasing in the digital age. Today, perpetrators can hack into a stranger’s computer by pretending to be a friend or peer and obtain private, often sexually explicit, images of their victims. Perpetrators then use the threat of distribution of these images to demand sex or additional sexually explicit images. Concerned over this threat and worried that these images will be posted online or sent to friends or family, the victims – often teens and young women – comply with the perpetrators’ demands. The National Center for Missing and Exploited Children has reported that 78% of reported sexual extortion victims were girls, with an average age of 15, and more than 20% of reported incidents involved multiple victims.
Currently, California has a revenge porn law which criminalized the distribution of sexually explicit images without consent. The problem is that with sexual extortion cases there is no actual distribution, just the threat of distribution. Due to this law enforcement and prosecutors are hampered by the absence of a clear offense that specifically targets sexual extortion offenses. The lack of consistency in the prosecution of sexual extortion cases and the lack of a specific statue that criminalizes sexual extortion leaves prosecutors little choice but to proceed under a hodgepodge of statutes. Since California law does not currently allow for full or uniform prosecution of sexual extortion cases, perpetrators go unpunished or are charged with lesser crimes in many cases. SB 500 will criminalize sexual extortion and give prosecutors an important tool to combat these offenses and protect victims.
2. Reported Incidents of Sexual Extortion
There have been several reported incidents that could constitute sexual extortion in California and most have been prosecuted by the federal government. One of the more publicized incidents involved Miss Teen USA and other women who had been hacked. The defendant, college student Jarred James Abrahams, age 20, took control of victims’ email accounts, social media accounts, and their computers – which allowed him to remotely turn on web cameras and take pictures of them naked. Abrahams used the nude photos to extort his victims by threatening to publicly post the compromising photos or videos to the victims’ social media accounts – unless they either sent more nude photos or videos, or engaged in a Skype session with him and did what he said for five minutes. Abrahams pleaded guilty to one count of computer hacking and three counts of extortion and was sentenced to 18 months in federal prison. (See <https://www.justice.gov/usao-cdca/pr/temecula-student-sentenced-federal-prison-sextortion-case> [as of Mar. 27, 2017].)
In a more recent case, defendant Cesar Estrada-Davila found his victims on social media by posing as a modeling agent and asked them for nude photos. When Estrada-Davila received the images, he threatened to send the photos to their friends and family if he did not receive more nude photos. Prosecutors said there were 21 female victims between the ages of 12 and 17 years old from California, Utah, Texas, Michigan, Washington, Colorado, Nevada, and Florida. Estrada-Davila pleaded no contest to a total of 38 felony counts: one count of lewd act upon a child, 21 counts of distributing or showing child or youth pornography to a minor, and 16 counts of possession of child pornography. He was sentenced to 39 years and 8 months in state prison, and must register as a sex offender. (See http://losangeles.cbslocal.com/2017/02/17/20-year-old-rosemead-man-gets-nearly-40-years-behind-bars-for-revenge-porn/> [as of Mar. 27, 2017].)
Another case involved defendant Mark Serrano who stole a sex video that his ex-girlfriend had made with her old boyfriend and threatened that if she did not make a sex video with him he would e-mail copies of the prior video to her employer, her school contacts and to amateur pornography websites. He said he would return the prior video to her if she made a new sex video with him. Serrano was charged and convicted of attempted rape under the theory that he tried to coerce the victim to engage in sexual intercourse by threatening to disseminate a sex video the victim had previously produced with a prior boyfriend. Serrano was also ordered to register as a sex offender. (Serrano v. Butler, No. C 06-04433 JW, 2010 U.S. Dist. LEXIS 137617 (N.D. Cal., Dec. 20, 2010).)
California does not have a specific sexual extortion statute so these incidents have been charged under different statutes, such as hacking, possession of child porn, or attempted rape. This bill would create the new crime of sexual extortion.
3. First Amendment Restrictions on Criminalizing Threatening Speech
The First Amendment to the United States Constitution states: "Congress shall make no law . . . abridging the freedom of speech . . . ." This fundamental right is applicable to the states through the due process clause of the Fourteenth Amendment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 133-134, citing Gitlow v. People of New York (1925) 268 U.S. 652, 666.) Article I, section 2, subdivision (a) of the California Constitution provides that: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
While these guarantees are stated in broad terms, "the right to free speech is not absolute." (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708; and Stromberg v. California (1931) 283 U.S. 359.) As the United States Supreme Court has acknowledged: "Many crimes can consist solely of spoken words, such as soliciting a bribe (Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a terrorist threat (Pen. Code, § 422)." (Ibid.) In In re M.S. (1995) 10 Cal. 4th 698, 710, the court held that "the state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection." Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. (People v. Mirmirani (1981) 30 Cal. 3d 375, 388, fn. 10.)
The First Amendment permits states to ban a true threat. (Watts v. United States (1969) 394 U.S. 705, 708.) True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (Virginia v. Black (2003) 538 U.S. 343, 359, citing Watts v. United States, supra, 394 U.S. at 708.) Alleged threats should be considered in light of their entire factual context, including the surrounding events and reactions of the listeners. … A threat made such that “a reasonable person would foresee that the listener will believe he will be subjected to physical violence… is unprotected by the First Amendment.” (Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists (2002) 290 F.3rd 1058, 1077.) The statute must require “more than the mere utterance of threatening words—some level of intent is required. . . . it is not enough that a reasonable person might have understood the words as a threat—a jury must find that the speaker actually intended to convey a threat.” (Perez v. Florida, No. 16-6250, 2017 U.S. LEXIS 1570, *4 (U.S., Mar. 6, 2017).)
Also related to true threats are conditional threats such as blackmail and extortion. “[E]xtortionate threats, which are true threats . . . [are] not protected speech.” (United States v. Coss (6th Cir. 2012) 677 F.3d 278, 289.) “[N]ot all threats to engage in speech that will have the effect of damaging another person’s reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television “on-the-side-of-the-consumer” program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.” (United States v. Jackson (2d Cir. 1999) 180 F.3d 55, 67.) In order to pass constitutional muster, a statute must require both a wrongful threat and an intent to extort. (United States v. Coss, supra, 677 F.3d at 290.)
One of the provisions in this bill criminalizes speech by making it unlawful to” threaten physical harm to a person, threaten to injure the property or reputation of a person, or threaten to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with an intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct.” As such, it implicates a First Amendment analysis of whether the proposed statute criminalizes protected speech.
As discussed above, the right to free speech is not absolute. Examples of speech that are not protected under the First Amendment are true threats and speech that incites imminent violence. Similar to true threats, extortionate threats may be regulated as long as it requires both wrongful threats and the intent to extort. The bill’s provision referred to above specifies the type of harm that must be threatened and the intent that is required, so at least on its face, this provision does not appear to be unconstitutional. Whether it is unconstitutional as applied to certain defendants would depend on the facts and circumstances of those individual cases.
4. Governor’s Veto Message Regarding “Multiplication” and “Particularization” of Crimes
In 2015, the Governor vetoed a number of criminal justice bills because they created new crimes for conduct that was already prohibited. The bills the Governor vetoed on this basis included: AB 144, AB 849, SB 168, SB 170, SB 271, SB 333, SB 347, SB 716, SB 722.
The Governor vetoed those bills and issued this statement applying to all the bills:
Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.
As pointed out above, incidents of sexual extortion have been prosecuted under existing law as hacking or attempted rape. Does creating the new crime of sexual extortion further complicate California’s criminal code by particularizing crimes that are already illegal?
5. Ongoing Concerns over 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.
The court also ordered California to implement the following population reduction measures in its prisons:
- Increase prospective credit earnings for non‑violent second‑strike inmates as well as minimum custody inmates.
- Allow non‑violent second‑strike inmates who have reached 50 percent of their total sentence to be referred to the Board of Parole Hearings (BPH) for parole consideration.
- Release inmates who have been granted parole by BPH but have future parole dates.
- Expand the CDCR’s medical parole program.
- Allow inmates age 60 and over who have served at least 25 years of incarceration to be considered for parole.
- Increase its use of reentry services and alternative custody programs.
(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).) Following the implementation of these measures along with the passage of Proposition 47, approved by California voters in November 2014, California met the federal court’s population cap in December 2015. (Defendants’ December 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.) The administration’s most recent status report states that as “of December 14, 2016, 114,031 inmates were housed in the State’s 34 adult institutions” which amounts to approximately 135.3% of design capacity, and 4,704 inmates were housed in out-of-state facilities. (Defendants’ December 2016 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 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).
This bill creates the new crime of sexual extortion and provides that the offense is punishable by imprisonment in the state prison. Although the state is currently in compliance with the court-ordered population cap, creating new state prison crimes reverses the progress made in reducing the state prison population. This is contrary to the court's order for a durable solution to prison overcrowding.
6. Penalty Assessments on Criminal Fines
This bill specifies fines of up to $2000 if a person is convicted of misdemeanor sexual extortion and up to $10,000 if a person is convicted of felony sexual extortion. As described in detail below, when a fine is imposed in a criminal case, that base amount is increased by over 300% because of penalty assessments required for each criminal fine.
Assuming a defendant was fined $10,000 as the maximum fine, the following penalty assessments would be imposed pursuant to the Penal Code and the Government Code which would substantially increase the total fine:
Base Fine: $ 10,000
State Penalty Assessment: | $10 for every $10 | $10,000 |
County Penalty Assessment: | $7 for every $10 | $7,000 |
Court Construction Penalty Assessment: | $5 for every $10 | $5,000 |
Proposition 69 DNA Penalty Assessment: | $1 for every $10 | $1000 |
DNA Identification Fund Penalty Assessment: | $4 for every $10 | $4000 |
EMS Penalty Assessment: | $2 for every $10 | $2000 |
EMAT Penalty Assessment: | $4 per conviction | $4 |
State Surcharge: | 20% of base fine | $2,000 |
Court Operations Assessment: | $40 per conviction | $40 |
Conviction Assessment Fee: | $30 per felony or misdemeanor conviction | $30 |
Night Court Fee: | $1 per fine and fee imposed | $1 |
Restitution Fine: | $150 minimum per misdemeanor,$300 minimum per felony | $300 |
Total Fine with Assessments: $41,375
7. Intent Required under this Bill
This bill contains two provisions that criminalize threats against another person for the purpose of coercing them to engage in sexual acts or send over nude or sexually explicit images or videos. One of the provisions requires that the person had specific intent to coerce the other person to do one of the enumerated acts, while the other provision only requires that the person knowingly caused the person to do one of these acts. Proving that someone knowingly did something is a lower thresh hold than proving that they had certain intent when doing it. Considering that the knowingly caused requirement is an element in the provision that provides for the harsher penalty, should that provision also require specific intent?
8. Arguments in Support
Legal Momentum, the sponsor of this bill, writes,
Sexual extortion occurs when a perpetrator obtains sexual images of a victim and then uses the threat of distributing the sexual images to demand additional images or in-person sexual acts. Presented with this threat victims – often teenagers and young women – have no real choice but to comply with the perpetrator’s demands. Victims of sexual extortion experience the same irreparable harm as other sexual assault victims and rape victims
We recently published a report, “A Call to Action: Ending Sexual Extortion in the Digital Age,” together with Orrick, Herrington & Sutcliffe LLP. Our report examines how sexual extortion has proliferated in the digital age. As the report discusses, the FBI has designated sexual extortion as the fastest growing threat to Internet safety for children, teens and women. The National Center for Missing and Exploited Children received more than 800 sextortion-related tops between 2013 and 2015. 78% of reported victims were girls, with an average age of 15, and more than 20% of reported incidents involved multiple victims. These statistics are alarming, particularly because like other sexual assault crimes, sexual extortion is likely underreported.
Given how easily sexual extortion can be proliferated digitally, and the harm it causes, it is critical that California laws address the issue head-on. . . .
9. Arguments in Opposition
According to the American Civil Liberties Union of California,
Much of the conduct at issue in this bill can generally be criminalized under existing law. Under current law, a person can already be convicted of rape if an act of sexual intercourse is “accomplished against a person’s will by…duress…” (Penal Code, § 61, subd. (a)(2).) Under the statute, “duress” is defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.” (Penal Code, §261, subd. (b).) The statute goes on to provide that, “[t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.” (Id.) Likewise, if a person is convicted of a lewd and lascivious act on a child under 14 through “duress,” or convicted of oral copulation accomplished against a person under 14 through “duress,” the person would be guilty of a felony and punished by up to 10 or 14 years, respectively, in prison. (Penal Code, §§288, subd. (b)(1); 288a, subd. (c)(2).)
In addition, any act in which the person, “through force, fear, coercion, deceit, violence duress, menace, or threat of unlawful injury to the victim or to another person, causes a person under 18 years of age to engage in a commercial sex act” could, under certain circumstances, constitute criminal profiteering. (Penal Code, § 186.2, subd. (a)(30).) For purposes of the criminal profiteering statute, “commercial sex act” is defined to means “any sexual conduct on account of which anything of value is given or received by any person.” (Id.) A person can also be convicted of human trafficking if the person causes a minor to engage in a commercial sex act through “…violence, duress, menace, or threat of unlawful injury…” and can be punished by 15-years-to-life in prison. (Penal Code, §236.1, subd. (c).)
We also fear that the proscriptions in this bill could inadvertently end up criminalizing more youth, who engage in the proscribed behavior. While their conduct may very well be misguided and inappropriate, it frequently should not be penalized as specified in this bill.
Given the state’s historic prison overcrowding problems, now is not the time for California to begin creating new prison-term felonies, particularly when existing penalties appear sufficient. Corrections spending remains high; the Governor’s proposed 2017-18 Budget provides $11.3 billion. The proposed budget already projects an increase in the daily adult inmate population, and unnecessarily sending more people to prison for longer periods of time will continue the upward trajectory in spending. California needs to use more sensible and cost-effective ways to address criminal justice, as the rest of the world already does.
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Discussed in Hearing
2MIN
Senate Floor
2MIN
Assembly Floor
1H
Assembly Standing Committee on Appropriations
12MIN
Assembly Standing Committee on Public Safety
2MIN
Senate Floor
48MIN
Senate Standing Committee on Appropriations
27MIN
Senate Standing Committee on Public Safety
Bill Author
