Existing law provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy, is guilty of disorderly conduct, a misdemeanor. Existing law provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person, is guilty of disorderly conduct, a misdemeanor.

This bill would allow a court, in a case in which a person violates the above provisions and intentionally distributes or makes the image or recording accessible to any other person, to impose a fine in an amount not to exceed $1,000 in addition to the punishment prescribed for the violation. The bill would require the court to include economic losses suffered by the victim for costs incurred to delete, remove, and eliminate the images and recordings when imposing restitution.

By increasing the punishment for a crime, this bill would impose 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 provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy, is guilty of disorderly conduct, a misdemeanor. Existing law provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person, is guilty of disorderly conduct, a misdemeanor.

By creating a new increasing the punishment for a crime, this bill would impose 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 provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy, is guilty of disorderly conduct, a misdemeanor. Existing law provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person, is guilty of disorderly conduct, a misdemeanor.

This bill would additionally make it a crime to intentionally distribute or disseminate, or to make available or viewable, any image obtained pursuant to the provisions described above, including through publication, posting through electronic media, or by any other means.

By creating a new crime, this bill would impose 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.

 VETO  

Bill No: SB 784

Author:

:

Vote: 7

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/25/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 37-0, 5/22/17

AYES: Allen, Atkins, Bates, Beall, Berryhill, Bradford, Cannella, De León, Dodd, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Anderson, Fuller, Pan

ASSEMBLY FLOOR: 76-0, 9/15/17 - See last page for vote

SUBJECT:

SOURCE: Los Angeles City Attorney

DIGEST:

This bill authorizes an additional fine of up to $1000 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.

ANALYSIS:

Existing law:

1. Makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. (Pen. Code § 647, subd. (j)(1).)
2. States that it is a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code § 647, subd. (j)(2).)
3. Makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code § 647, subd. (j)(3).)
4. Makes it a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647, subd. (j)(4)(A).)
5. Provides that a violation of disorderly conduct is punishable by up to six months imprisonment in county jail or up to a fine of $1000, or both the fine and imprisonment. A second violation of subdivision (j) of Penal Code section 647 is punishable by up to one year in county jail, a fine not exceeding $2000, or both the fine and imprisonment. (Pen. Code § 647, subd. (l).)

This bill:

1. Allows a court, in a case in which a person violates existing provisions of law prohibiting the secret videotaping, filming, photographing, or recording of another person, and who intentionally distributes or makes the image or recording accessible to any other person, to impose an additional fine in an amount not to exceed $1,000.
2. Requires the court to include economic losses suffered by the victim for costs incurred to delete, remove, and eliminate the images and recordings when imposing restitution.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Unknown additional fine and assessment revenues.
2. No additional costs to the trial courts.

SUPPORT: (Verified 10/12/17)

Los Angeles City Attorney (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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles County Professional Peace Officers

Los Angeles Police Protective League

Riverside Sheriffs’ Association

San Diego County District Attorney

OPPOSITION: (Verified 10/12/17)

California Public Defenders Association

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 784 without my signature.

This bill authorizes an increased financial penalty in situations where a person takes photographs or video footage of another person without their consent and intentionally distributes it or makes it available to another person.

I don't believe the additional $1,000 called for in this bill does anything to deter this type of conduct. The underlying crime-the recording of the image-is already punishable by up to six months in jail and a $1,000 fine, and courts currently have discretion to order that any restitution include economic losses incurred by the victim. Moreover, civil remedies are available in these situations.

I believe that current law already provides sufficient criminal and civil liability.

ASSEMBLY FLOOR: 76-0, 9/15/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, 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: Choi, Eggman, Quirk

Prepared by:

1/2/18 9:58:25

**** END ****

SENATE THIRD READING

STR Bill Id:SB 784

Author:(Galgiani)

As Amended Ver:May 2, 2017

Majority vote

SENATE VOTE: 37-0

SUMMARY: Authorizes a new and additional fine for specified forms of disorderly conduct. Specifically, this bill:

1. 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.
2. Requires the court to include in its restitution order economic loss suffered by the victim for costs incurred to delete, remove, and eliminate the images.

EXISTING LAW:

1. Makes it a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
2. Makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside.
3. Makes it a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person's body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent.
4. Makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another person who is in a state of full or partial undress, for the purpose of viewing that person's body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual.
5. Provides, generally, that these forms of disorderly conduct are punishable as a misdemeanor.
6. Provides that, except in cases where a different punishment is prescribed, the punishment for a misdemeanor is imprisonment in the county jail not exceeding six months, a fine not exceeding $1,000, or both the fine and imprisonment.
7. Provides that, if the victim is a minor, a first violation of these forms of disorderly conduct are also punishable by up to one year in county jail, a fine not exceeding $2,000, or both the fine and imprisonment.
8. Provides that a second violation of these forms of disorderly conduct is punishable by up to one year in county jail, a fine not exceeding $2,000, or both the fine and imprisonment.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown additional fine and assessment revenues.
2. No additional costs to the trial courts.

COMMENTS: According to the author, "This country has a growing problem of bullying through body-shaming on social media that needs to be addressed. Having a photo taken of you in a fitting room or locker room when you have a reasonable expectation of privacy is humiliating in and of itself – but when that photo is then shared across social medial the victim can experience long-term harm and embarrassment. This type of behavior is destructive and Senate Bill 784 will make sure our laws keep pace with the ever changing social media environment."

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001095

Date of Hearing: June 28, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 784

Author:(Galgiani) – As Amended Ver:May 2, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill 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 distributing that image. In addition, this bill requires the court to include in its restitution order any economic loss suffered by the victim for costs incurred to delete, remove, and eliminate the images.

FISCAL EFFECT:

1. Unknown additional fine and assessment revenues.
2. No additional costs to the trial courts.

COMMENTS:

1. Background. Current law makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual.

Under current law, it is also a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image will remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

With a few exceptions, these “disorderly conducts” are punishable as misdemeanors with imprisonment in the county jail for up to six months and/or a fine not to exceed $1,000. If the victim is a minor, these forms of disorderly conduct are also punishable by up to one year in county jail and/or a fine not to exceed $2,000.

1. Purpose. According to the author, “This country has a growing problem of bullying through body-shaming on social media that needs to be addressed. Having a photo taken of you in a fitting room or locker room when you have a reasonable expectation of privacy is humiliating in and of itself – but when that photo is then shared across social medial the victim can experience long-term harm and embarrassment….SB 784 will make sure our laws keep pace with the ever changing social media environment.” This bill authorizes an additional fine for distribution on top of the existing fine for recording the image.
2. Existing Penalty Assessments: Current law provides for penalty assessments and fees assessed on the base fine for a crime. Assuming a defendant was fined $1,000, as provided for in this bill, the following penalty assessments would be imposed:

Base Fine: $ 1,000

Penal Code 1464 state penalty on fines: $ 1,000 ($10 for every $10)

Penal Code 1465.7 state surcharge: 200 (20% surcharge)

Penal Code 1465.8 court operation assessment: 40 ($40 fee per offense)

Government Code 70372 court construction penalty: 500 ($5 for every $10)

Government Code 70373 assessment: 30 ($30 for felony or misdemeanor)

Government Code 76000 penalty: 700 ($7 for every $10)

Government Code 76000.5 EMS penalty: 200 ($2 for every $10)

Government Code 76104.6 DNA fund penalty: 100 ($1 for every $10)

Government Code 76104.7 addt'l DNA fund penalty: 400 ($4 for every $10)

Total Fine with Assessments: $4,170

Concerns have been raised regarding the rise in criminal fines and fees. In many instances, criminal defendants can generally not produce a substantial flow of money for fines, and it has become resource intensive to collect those fines and fees. Chief Justice Cantil-Sakauye has also commented on the issue of increasing fines and fees, “We have a system of fines and fees that has morphed from a system of accountability to a system that raises revenue for essential government services. For example, we raise approximately 1.7 billion dollars in fines, fees, and assessments. More than 60 percent of that money goes to fund programs and services at the local and state level. The rest goes to the court system. This is an inequity when we have taken a fines, fees, and assessment accountability system and turned it into a revenue-generating system for government services.”

1. Related Legislation. AB 324 (Kiley) eliminates the requirement that a victim be "identifiable" from the crimes of using a camera or similar device to photograph or otherwise record an identifiable person under or through their clothing, for the purpose of viewing their body or undergarments. AB 324 is pending in the Senate Public Safety Committee.
2. Prior Legislation. SB 1255 (Canella), Chapter 683, Statutes of 2014, expanded the crime of “revenge porn” to include images a person takes of himself or herself.
   

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

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 20, 2017

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

SBPCA Bill Id:SB 784

Author:(Galgiani) – As Amended Ver:May 2, 2017

SENATE VOTE: 37-0

SUBJECT: Crimes: disorderly conduct: invasion of privacy

SUMMARY: Authorizes a court to impose an additional fine not to exceed $1,000 when an individual intentionally distributes or makes available secretly recorded images of a person’s body in a manner that violates the privacy of that individual. Specifically, this bill:

1. Authorizes a court to impose an additional fine not to exceed $1,000 when a person intentionally distributes an image or recording of another, identifiable person’s body or undergarments without consent, under circumstances in which that person has a reasonable expectation of privacy, as specified.
2. Requires a court to include in its restitution order economic losses suffered by the victim for costs incurred to delete, remove, or eliminate distributed images or recordings.

EXISTING LAW:

1. Makes it is a misdemeanor for any person who uses a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a salacious or sexual intent. (Penal Code Section 647(j)(2))
2. Makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record by electronic means another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (PC 647(j)(3))
3. Provides that a violation of disorderly conduct is punishable by up to six months imprisonment in county jail or up to a fine of $1000, or both the fine and imprisonment. A second violation is punishable by up to one year in county jail, a fine not exceeding $2000, or both the fine and imprisonment. (PC 19 & 647(l)(1))

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, any additional state costs are not significant, and do not and will not require the appropriation of additional state funds, and the bill will cause no significant reduction in revenues.

COMMENTS:

1. Purpose of this bill: This bill is intended to deter the use of technology and social media for harmful purposes like ”body-shaming” by creating an additional fine for intentionally distributing images or recordings of a person’s body or undergarments without his or her consent or knowledge. SB 784 is sponsored by the Los Angeles City Attorney's Office.
2. Author’s statement: According to the author, “This country has a growing problem of bullying through body-shaming on social media that needs to be addressed. Having a photo taken of you in a fitting room or locker room when you have a reasonable expectation of privacy is humiliating in and of itself -- but when that photo is then shared across social media the victim can experience long-term harm and embarrassment. This type of behavior is destructive and Senate Bill 784 will make sure our laws keep pace with the ever changing social media environment.”
3. Online harassment: The existing law which defines violations of disorderly conduct has been amended multiple times in recent years to address privacy issues that have emerged with the widespread use of the internet. Online harassment takes multiple forms that can range from purposeful embarrassment to stalking and sexual harassment. The October 2014 PEW Research Center Report, “Online Harassment” found that 40% of internet users have experienced online harassment and 73% of users have witnessed it occur to others.

Subsequently, lawmakers across the US have tackled internet issues including cyberbullying, “revenge porn” and other types of cyber abuses. In California, a person who intentionally distributes “revenge porn,” which is an image of an identifiable person’s intimate body parts which had been taken with the understanding that the image would remain private, can be charged with a misdemeanor. Current law makes it a misdemeanor for a person to secretly record another person in a state of full or partial undress for the purpose of viewing that person’s body or undergarments without consent, under circumstances in which that person has a reasonable expectation of privacy. However, current law does not explicitly prohibit distributing that image. It should be noted that this bill authorizes, but does not require, an additional fine for distribution of the image on top of the existing penalty for recording the image.

1. Body shaming: Another type of online harassment, which is prevalent both off- and online is “body-shaming,” which involves humiliating someone by making mocking or critical comments about the person’s body. Many of these incidents take place on social media and can have negative impacts on confidence and self-esteem. Eating disorder advocates including Claire Mysko, the CEO of the National Eating Disorders Association (NEDA), have blamed the mass media for creating a body-shaming culture. According to the NEDA, the best known contributor to the development of eating disorders like anorexia and bulimia is body dissatisfaction.

In this era of social media, body-shaming has become a common problem, but legal ramifications are rare. However, in one incident in Los Angeles, a woman, who is also a Playboy model, took a picture of another naked woman in a gym locker room and posted it to her social media account with a mocking comment about the woman's body – and was criminally charged for it. Los Angeles City Attorney Mike Feuer, the sponsor of this bill, prosecuted the model for misdemeanor disorderly conduct by invading another person’s privacy. The picture taker pleaded no contest and was sentenced to three years of probation and ordered to complete 30 hours of graffiti removal service.

In a November 6, 2016 Los Angeles Times article, the Mr. Feuer stated, “Body-shaming is humiliating, with often painful, long-term consequences," he said. “It mocks and stigmatizes its victims, tearing down self-respect and perpetuating the harmful idea that our unique physical appearances should be compared to air-brushed notions of 'perfect.' What really matters is our character and humanity. While body-shaming, in itself, is not a crime, there are circumstances in which invading one's privacy to accomplish it can be. And we shouldn’t tolerate that.”

This bill allows the court to impose an additional fine of up to $1,000 for disseminating the body-shaming images and provides restitution costs to victims to hire professionals to remove the images from the internet.

1. Arguments in support: According to the sponsor, the Los Angeles City Attorney, “SB 784 retains an appropriately high bar for prosecutors who must be able to prove that the image was taken in violation of current law and intentionally distributed. It does not reach uninvolved third parties and is consistent with First Amendment principles. A person who criminally invades an individual’s privacy by unlawfully (and, likely, surreptitiously) taking illicit images should not be allowed to further harm the victim by distributing those images without added consequences."

“SB 784 would add a critical provision to State law ensuring that victim restitution includes the costs, determined by a court, to hire professional services to attempt to have the images removed. This surgical update to State law addresses technological advances and provides a greater measure of justice to a victim.”

1. Related legislation: AB 324 (Kiley) eliminates the requirement that a victim be “identifiable” from the crimes of using a camera or similar device to photograph or record an identifiable person under or through their clothing, without the consent or knowledge of the other person, under circumstances in which the other person has a reasonable expectation of privacy. AB 324 is currently pending in the Senate Public Safety Committee.
2. Previous legislation: SB 1255 (Canella), Chapter 683, Statutes of 2014, expanded the elements of the misdemeanor offense which prohibits the unlawful distribution of consensually taken image of identifiable person’s intimate body parts.

SB 255 (Cannella) Chapter 466, Statutes of 2013, created a new misdemeanor for the distribution of an image of an identifiable person’s intimate body parts which had been taken with the understanding that the image would remain private.

AB 665 (Torres) Chapter 658, Statutes of 2011, doubled the misdemeanor penalties, to a maximum of one year in jail and $2,000 fine, for a second or subsequent conviction of violating another person’s reasonable expectation of privacy, or the first conviction where the victim is a minor.

SB 1484 (Ackerman), Chapter 666, Statutes of 2004, expanded the crime of disorderly conduct to include the use of a concealed instrumentality to secretly videotape another fully or partially undressed person for the purpose of viewing that person’s body or undergarments without the consent while that person is inside a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or in any other area in which that other person has a reasonable expectation of privacy, with the intent to invade that person’s privacy.

AB 2051 (Alpert) Chapter 1020, Statutes of 1996, expanded the misdemeanor of disorderly conduct to include looking through an opening or viewing a person who has a reasonable expectation of privacy.

1. Double-referral: This bill was double-referred to Assembly Public Safety, where it passed on June 13, 2017, by a 7 to 0 vote.

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles City Attorney (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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

Crime Victims United of California

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Riverside Sheriffs’ Association

San Diego County District Attorney

Opposition

None on file.

Analysis Prepared by: Jennifer Chase / P. & C.P. / (916) 319-2200

Date of Hearing: June 13, 2017

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 784

Author:(Galgiani) – As Amended Ver:May 2, 2017

SUMMARY: Authorizes a new and additional fine for specified forms of disorderly conduct. Specifically, this bill:

1. 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.
   
2. Requires the court to include in its restitution order economic loss suffered by the victim for costs incurred to delete, remove, and eliminate the images.

EXISTING LAW:

1. Makes it a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647, subd. (j)(4)(A).)
   
2. Makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. (Pen. Code, § 647, subd. (j)(1).)
   
3. Makes it a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code, § 647, subd. (j)(2).)
   
4. Makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code, § 647, subd. (j)(3).)
   
5. Provides, generally, that these forms of disorderly conduct are punishable as a misdemeanor. (Pen. Code, § 647.)
   
6. Provides that, except in cases where a different punishment is prescribed, the punishment for a misdemeanor is imprisonment in the county jail not exceeding six months, a fine not exceeding $1,000, or both the fine and imprisonment. (Pen. Code, § 19.)
   
7. Provides that, if the victim is a minor, a first violation of these forms of disorderly conduct are also punishable by up to one year in county jail, a fine not exceeding $2,000, or both the fine and imprisonment. (Pen. Code § 647, subd. (l)(2).)
   
8. Provides that a second violation of these forms of disorderly conduct is punishable by up to one year in county jail, a fine not exceeding $2,000, or both the fine and imprisonment. (Pen. Code § 647, subd. (l)(1).)
   

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, “This country has a growing problem of bullying through body-shaming on social media that needs to be addressed. Having a photo taken of you in a fitting room or locker room when you have a reasonable expectation of privacy is humiliating in and of itself – but when that photo is then shared across social medial the victim can experience long-term harm and embarrassment. This type of behavior is destructive and Senate Bill 784 will make sure our laws keep pace with the ever changing social media environment.
   
2. Double Punishment: Penal Code section 654 provides "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of the statute "is to ensure that a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
   
   Although on its face section 654 precludes multiple punishments for a single act or omission, case law also applies it to an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal v. State of California (1960) 55 Cal.2d 11, 19.)" (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.) "Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court.” (Id. at pp. 1252–1253.)
   
   Fines are penal in nature and therefore subject to the limitations of Penal Code section 654. (People v. Tarris (2009) 180 Cal.App.4th 612, 628 [fining defendant under section 25189.5, subdivision (e), for both the disposal and transportation crimes (§ 25189.5, subds. (b), (c)) is improper under Penal Code section 654 since such an order would constitute multiple punishment for a single act or omission]; see also Ralph’s Grocery Co. v. Department of Food and Agriculture (2003) 110 Cal.App.4th 694, 701.)
   
   The bill authorizes, but does not require, an additional fine for distribution on top of the existing fine for recording the image. Arguably imposition of both fines would violate Penal Code section 654, at least in many cases, because the image would be recorded with the intent to distribute it.
   
3. Existing Penalty Assessments: There are penalty assessments and fees assessed on the base fine for a crime. Assuming a defendant was fined $1,000, as provided for in this bill, the following penalty assessments would be imposed pursuant to the Penal Code and the Government Code:

Base Fine: $ 1,000

Penal Code 1464 state penalty on fines: $ 1,000 ($10 for every $10)

Penal Code 1465.7 state surcharge: 200 (20% surcharge)

Penal Code 1465.8 court operation assessment: 40 ($40 fee per offense)

Government Code 70372 court construction penalty: 500 ($5 for every $10)

Government Code 70373 assessment: 30 ($30 for felony or misdemeanor)

Government Code 76000 penalty: 700 ($7 for every $10)

Government Code 76000.5 EMS penalty: 200 ($2 for every $10)

Government Code 76104.6 DNA fund penalty: 100 ($1 for every $10)

Government Code 76104.7 addt'l DNA fund penalty: 400 ($4 for every $10)

Total Fine with Assessments: $4,170

It should be noted that this figure does not include victim restitution, or the restitution fine, and that other fines and fees, such as the jail booking fee, attorney fees, OR release fees, probation department fees, may also be applicable.

1. Practical Considerations:  Criminal fines and penalties have climbed steadily in recent decades.  Government entities tasked with collecting these fines have realized diminishing returns from collection efforts.  Government resources can be wasted in futile collection attempts.  A San Francisco Daily Journal article noted, "When it comes to collecting fines, superior court officials in several counties describe the process as 'very frustrating,' 'crazy complicated' and 'inefficient.'"  (See State Judges Bemoan Fee Collection Process, San Francisco Daily Journal, 1/5/2015 by Paul Jones and Saul Sugarman.)
   
   Simply put, criminal defendants can generally not produce a substantial flow of money for fines.  That well will quickly run dry.  In the same Daily Journal article, the Presiding Judge of San Bernardino County was quoted as saying "the whole concept is getting blood out of a turnip."   (Daily Journal, supra.)   The annual growth in delinquent debt partly reflects a supply of money that doesn't exist to be collected."  (Ibid.)
   
   More recently, in her March 2016 State of the Judiciary address to the Legislature, Chief Justice Cantil-Sakauye also addressed concerns with increasing fines and fees:
   

“We have a system of fines and fees that has morphed from a system of accountability to a system that raises revenue for essential government services. For example, we raise approximately 1.7 billion dollars in fines, fees, and assessments. More than 60 percent of that money goes to fund programs and services at the local and state level. The rest goes to the court system.

“This is an inequity when we have taken a fines, fees, and assessment accountability system and turned it into a revenue-generating system for government services.” (http://www.courts.ca.gov/34477.htm.)

1. Argument in Support: None submitted.
   
2. Related Legislation: AB 324 (Kiley) eliminates the requirement that a victim be "identifiable" from the crimes of using a camera or similar device to photograph or otherwise record an identifiable person under or through their clothing, for the purpose of viewing their body or undergarments, for the purpose of sexual gratification, or to record an identifiable person who is in a state of full or partial undress in an area in which they have a reasonable expectation of privacy, without their consent. AB 324 is pending in the Senate Public Safety Committee.
   
3. Prior Legislation:
   
   1. AB 32 (Waldron), Chapter 614, Statutes of 2015, as introduced, added a second fine of up to $10,000 per image for illegally obtaining the photos by hacking into a computer system, when the image in question is of an intimate body part. In lieu of the additional fine, the maximum fine for the offense was raised to $10,000.
      
   2. SB 1255 (Canella), Chapter 683, Statutes of 2014, expanded the crime of “revenge porn” to include images a person takes of himself or herself.
      
   3. SB 255 (Cannella), Chapter 466, Statutes of 2013, created a new misdemeanor for the distribution of an image of an identifiable person's intimate body parts which had been taken with an understanding that the image would remain private, commonly referred to as “revenge porn.”
      

REGISTERED SUPPORT / OPPOSITION:

Support

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 District Attorneys Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs’ Association
Crime Victims United of California
Los Angeles City Attorney
Los Angeles County Probation Officers Union
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
San Diego County District Attorney

Opposition

None

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 784

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/25/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Los Angeles City Attorney

DIGEST:

This bill authorizes an additional fine of up to $1000 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.

ANALYSIS:

Existing law:

1. Makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. (Pen. Code § 647, subd. (j)(1).)
2. States that it is a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code § 647, subd. (j)(2).)
3. Makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code § 647, subd. (j)(3).)
4. Makes it a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647, subd. (j)(4)(A).)
5. Provides that a violation of disorderly conduct is punishable by up to six months imprisonment in county jail or up to a fine of $1000, or both the fine and imprisonment. A second violation of subdivision (j) of Penal Code section 647 is punishable by up to one year in county jail, a fine not exceeding $2000, or both the fine and imprisonment. (Pen. Code § 647, subd. (l).)

This bill:

1. Allows a court, in a case in which a person violates existing provisions of law prohibiting the secret videotaping, filming, photographing, or recording of another person, and who intentionally distributes or makes the image or recording accessible to any other person, to impose an additional fine in an amount not to exceed $1,000.
2. Requires the court to include economic losses suffered by the victim for costs incurred to delete, remove, and eliminate the images and recordings when imposing restitution.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/16/17)

Los Angeles City Attorney (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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles County Professional Peace Officers

Los Angeles Police Protective League

Riverside Sheriffs’ Association

San Diego County District Attorney

OPPOSITION: (Verified 5/16/17)

California Public Defenders Association

Prepared by:

5/17/17 10:33:48

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 784 Hearing Date: April 18, 2017

Subject: Crimes: Disorderly Conduct: Invasion of Privacy

HISTORY

Source: Los Angeles City Attorney’s Office

Prior Legislation: SB 1255 (Canella) Ch. 683, Stats. 2014

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

AB 665 (Torres) Ch. 658, Stats. 2011

AB 182 (Ackerman) Ch. 231, Stats. 1999

Support: 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 District Attorneys Association; California Narcotic Officers Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles County Professional Peace Officers; Los Angeles Police Protective League; Riverside Sheriffs’ Association; San Diego County District Attorney

Opposition: California Attorneys for Criminal Justice; California Newspaper Publishers Association (oppose unless amended); California Public Defenders Association; Motion Picture Association of America, Inc. (oppose unless amended)

PURPOSE

The purpose of this bill is to make it a misdemeanor for a person to intentionally distribute or disseminate any image of an identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the other person’s consent or knowledge.

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

Existing law makes it a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code § 647, subd. (j)(2).)

Existing law makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code § 647, subd. (j)(3).)

Existing law makes it a misdemeanor for any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sexual act, as specified, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647, subd. (j)(4)(A).)

Existing law generally provides that a violation of disorderly conduct is punishable by up to six months imprisonment in county jail or up to a fine of $1000, or both the fine and imprisonment. A second violation of subdivision (j) of Penal Code section 647 is punishable by up to one year in county jail, a fine not exceeding $2000, or both the fine and imprisonment. (Pen. Code § 647, subd. (l).)

This bill states that it is a misdemeanor for a person who intentionally distributes or disseminates or who makes available to, or viewable by, any other person, including through publication, posting through electronic media, or by any other means, any image obtained using a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress for the purpose of viewing that person’s body or undergarments in a place where the person depicted has a reasonable expectation of privacy.

This bill provides that a person intentionally distributes an image when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.

This bill exempts the following:

• The distribution is made in the course of reporting an unlawful activity;
• The distribution is made in the compliance of other court order for use in a legal proceeding; or,
• The distribution is made in the course of a lawful public proceeding.

Existing law states that an act or omission punishable in different ways by different provisions of law may be punished under any provision that applies. However, in no case may the same act or omission be punished under more than one provision of law. (Pen. Code § 654.)

COMMENTS

1. Need for This Bill

According to the author:

Penal Code sections 647(j) (2) and 647(j) (3) make it a misdemeanor to take photographs or images of an individual when that person has a reasonable expectation of privacy in locations traditionally not open to public view. These important statutes provide the public with protection against invasions of their privacy. Violating these code sections is punishable by imprisonment in county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Senate Bill 1255 (2014), is a related provision that prohibits the distribution of sexually explicit images (intimate body parts or images depicting the person engaged in one of several specified sexual acts) -- images that were taken voluntarily, but were intended between the parties to remain private.

While an important advance in the protection of privacy, SB 1255 did not amend Section 647 of the Penal Code (disorderly conduct) to prohibit the distribution of images taken in violation of Penal Code sections 647(j) (2) or 647(j) (3). Although Penal Code sections 647(j)(2) and 647(j)(3) prohibit the recording of partially or fully nude images, taken without consent when there is a reasonable expectation of privacy, there is no penalty for distributing these illegally captured images.

With a rapidly evolving and expanding social media landscape, state law should continue to evolve to protect the privacy of Californians. Current law prohibits the taking of images and photographs of an individual in a situation where they have a reasonable expectation of privacy but does not prohibit the distribution of that image.

The purpose of this proposed law is to prohibit the distribution of images involving an individual in a partial or full state of undress (whether or not sexual in nature), taken without the consent of the individual. Violation would be a misdemeanor and punishable by imprisonment in county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

2. Constitutional Prohibitions on Double Punishment

The United States Constitution prohibits a person from being punished multiple times for the same incident or course of conduct. (Blockburger v. United States (1932) 284 U.S. 299.) This prohibition is also codified in Penal Code section 654 which states that in no case may the same act or omission be punished under more than one provision of law. This statute prohibits multiple “punishment” for a single act or course of conduct, thus a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In determining the appropriate punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. (People v. Ortega (1998) 19 Cal.4th 686, 692.)

However, an exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (People v. Correa (2012) 54 Cal. 4th 331, 337, citing People v. Lopez (1998) 19 Cal.4th 282, 288.)

This bill creates a new crime that includes existing subdivision (j) of Penal Code section 647, and adds the element of distribution. Because all of the elements of Penal Code section 647(j) are included in the new crime created by this bill, it is a lesser included offense of the new crime and therefore a person who surreptitiously took the image or photo cannot be convicted of both.

3. Purpose of this Bill is to Criminalize “Body Shaming”

The purpose of this bill is to criminalize “body shaming” which is essentially the act of humiliating someone by making mocking or critical comments about their body shape or size.

The act of body shaming, which often occurs when someone makes critical comments about another person’s body or overall appearance, usually on social media, typically does not rise to the level of a criminal act. One particular incident, however, did result in criminal charges. The incident involved a model who took a photo of a naked woman in the gym locker room and posted it to her Snapchat account mocking the woman’s body.

The Los Angeles City Attorney, the sponsor of this bill, prosecuted the model for disorderly conduct, specifically by invading another person’s privacy, which is a misdemeanor. In a statement to the press, the City Attorney stated: “Body-shaming is humiliating, with often painful, long-term consequences," he said. “It mocks and stigmatizes its victims, tearing down self-respect and perpetuating the harmful idea that our unique physical appearances should be compared to air-brushed notions of 'perfect.' What really matters is our character and humanity. While body-shaming, in itself, is not a crime, there are circumstances in which invading one's privacy to accomplish it can be. And we shouldn’t tolerate that.” (Winton and Rocha, Los Angeles Prosecutors Charge Former Playboy Playmate in Gym “Body-Shaming” Case (Nov. 6, 2016) < http://www.latimes.com/local/lanow/la-me-body-shaming-20161104-story.html> [as of Apr. 11, 2017].)

4. Proposed Amendments

This bill as currently written applies to both the original distribution of the image by the person who surreptitiously took the video or recording, and to any secondary distribution of the image. Because the secondary distribution may punish sources such as newspapers that may report on such incidents as a matter of public concern and thus implicates First Amendment protections, the bill should be amended to remove criminal liability for secondary distribution.

Additionally, it creates a new misdemeanor for conduct that is covered under existing law. This new misdemeanor cannot be applied to the distribution of the image by the person who surreptitiously took the video or recording because of double punishment prohibitions in the U.S. Constitution, as discussed above. But applying the new misdemeanor to secondary distribution has additional concerns, as discussed above.

Thus, the Committee proposes to amend the bill to delete the new misdemeanor and instead authorize an additional fine of up to $1000 in cases where a defendant has been convicted of invading another person’s privacy by surreptitiously taking photographs or images of that person as specified, and further intentionally distributes that image. The amendment would also specify that a victim is entitled to restitution which shall include economic losses for costs incurred to delete, remove and eliminate all such distributed images and recordings, including but not limited to, retaining professional assistance to delete, remove and eliminate all such distributed images and recordings to the extent possible and practicable, in an amount determined by the court.

5. Arguments in Support

The Los Angeles City Attorney, the sponsor of this bill, writes in support:

SB 784 sets an appropriately high bar for prosecutors who must be able to prove that the image was taken in violation of current law and intentionally distributed. It does not reach uninvolved third parties and is consistent with First Amendment principles. A person who invades an individual’s privacy by taking an illicit image should not be allowed to further harm the victim by distributing the image without added consequences. SB 784 will act as a powerful deterrent and mark an important evolution in our State’s privacy laws.

The San Diego District Attorney’s Office writes in support of this bill:

Current law provides that a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in the state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of the bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior or any area in which that other person has a reasonable expectation to privacy, with the intent to invade the privacy of that other person, is guilty of disorderly conduct, a misdemeanor. This bill would additionally make it a crime to intentionally distribute or disseminate, or to make available or viewable, any image obtained pursuant to the provisions described above, including through publication, posting through electronic media, or by any other means.

6. Arguments in Opposition

The California Public Defenders Association, in opposition, writes:

SB 784 proposes to amend section 647, subdivision (j) to add an additional subparagraph (5), which duplicates the crime set forth in the preceding paragraph (4) but limits the offense to circumstances where the images are obtained by peeping. In other words, the conduct proposed to be made specifically punishable by the proposed amendment to the statute is already encompassed within an existing broader provision of the statute.

The California Newspaper Publishers Association is opposed to the bill unless amended stating:

Existing law makes it unlawful for a person to film or record another person in a private place, like a locker room or bathroom, with the intent to invade the privacy of another. (Penal Code 647(j)(3).) It also makes unlawful voyeuristic “up-skirt” photography, taken with the intent to invade a person’s privacy and or appeal to a prurient interest. (Penal Code 647(j)(2).

SB 784 expands the law to make it a new crime for any person to distribute an image that was taken in violation of section (2) or (3). This is troubling on several fronts. First, while the underlying crime of capturing this type of image contains a specific intent requirement, this intent standard is not included in the new crime of distribution. Second, the expansive criminalization of secondary distribution—the publishing of an image by any person, not just the person who illegally obtained the image— is inconsistent with the seminal U.S. Supreme Court case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), and would bar coverage of newsworthy stories.

We understand that your office is interested in eliminating the secondary distribution element of SB 784, and narrowing the bill to criminalize only distribution of the image by the person who violated Penal Code Section 647(j)(2) or (3) to unlawfully obtain the image.

-- END –