AB 455: Ex parte orders: connected devices.
- Session Year: 2019-2020
- House: Assembly
- Latest Version Date: 2019-03-12
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Date
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Status
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|---|---|
| Feb 3, 2020 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
| Jan 31, 2020 | Died pursuant to Art. IV, Sec. 10(c) of the Constitution. |
| Apr 2, 2019 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Mar 19, 2019 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 13, 2019 | Re-referred to Com. on JUD. |
| Mar 12, 2019 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Feb 28, 2019 | Referred to Coms. on JUD. and P. & C.P. |
| Feb 12, 2019 | From printer. May be heard in committee March 14. |
| Feb 11, 2019 | Read first time. To print. |
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.
Date of Hearing: April 2, 2019
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 455
Author:(Kiley) – As Amended Ver:March 12, 2019
As Proposed to be Amended
SUBJECT: EX PARTE ORDERS: CONNECTED DEVICES
KEY ISSUE: Should A COURT BE PERMITTED TO issue A DOMESTIC VIOLENCE RESTRAINING ORDER TO PREVENT an alleged abuser from remotely controlling any connected devices AFFECTING THE HOME, VEHICLE, OR PROPERTY OF THeir victim?
SYNOPSIS
This bill expands the range of behaviors that can be prohibited by a court-issued domestic violence protective order to include remote control of connected devices that affect the home, vehicle, or property of the victim. It also requires the Judicial Council to update any forms or Rules of Court necessary to implement the bill’s provisions by January 1, 2021. Current law endows courts with the authority to issue protective orders to enjoin an alleged or potential abuser from engaging in several specified behaviors, including harassing, contacting, threatening, stalking, destroying personal property of, coming within a specified distance of, or disturbing the peace of the victim. Several reports have identified an emerging form of abuse by which abusers will harass, abuse, surveil, or otherwise exert control over victims through remote control of internet-enabled “smart” devices including thermostats, door locks, speakers, sprinklers, lights, and security cameras designed to facilitate one’s daily life. These devices are becoming increasingly prevalent in homes, with nearly 30 million homes in the United States incorporating some form of smart technology. Protective orders can exclude abusers from the dwelling of their victim, keep an abuser a specified distance away from their victim, and prohibit certain actions by which an abuser can molest a victim, but the ability to remotely control these connected devices is not tethered to the physical location of the abuser, making their control a unique form of abuse that, according to the author and bill supporters, justifies explicit authorization for courts to enjoin. By permitting courts to issue ex parte orders to enjoin remote control of devices affecting the home, vehicle, or property of another party, this bill addresses an emerging form of abuse that is of growing public concern, prudently including possible smart technologies that have not yet been developed in its broad scope.
This bill is supported by the Family Law Section of the California Lawyers Association and the Association of Certified Family Law Specialists, who argue “This statute updates the domestic violence statute to address new methods of abusive conduct as society evolves technologically.” Both supporting organizations suggest technical amendments raising the issue of an abuser’s ability to deny the victim access to connected devices despite an enjoinder permitted by this bill, since the victim may not have passwords or access codes necessary to operate them. Both organizations recommend requiring the abuser to surrender user ID and password information to the victim to allow the victim to control these devices as needed. However, this suggested remedy raises concerns about the privacy of the enjoined party, as most people use the same login information for most if not all accounts, as well as the possibility of potential Fifth Amendment violations by compelling a party to provide testimonial information that may allow access to incriminating evidence. Nonetheless, the author may wish to consider addressing the concern raised by these organizations, albeit by other means. There is no registered opposition to this bill.
SUMMARY: Allows a party to request that a court issue a restraining order to prohibit another party from remotely controlling connected devices affecting the protected party’s home, vehicle, or property. Specifically, this bill:
- Permits the court to issue an ex parte order enjoining a party from remotely controlling any connected devices affecting the home, vehicle, or property of the victim.
- Requires Judicial Council to develop or update any forms or rules of court that are necessary to implement this section by January 1, 2021.
EXISTING LAW:
- Permits a court to issue a domestic violence protective order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the other party. (Family Code Section 6200 et seq.)
- Allows protective orders to be issued ex parte after notice and a hearing, or by a judicial officer if a law enforcement officer recommends that the victim is in immediate danger of domestic violence. (Family Code Sections 6250, 6320, 6340.)
- Permits a court to issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. (Family Code Section 6321.)
- Permits a court to issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties. (Family Code Section 6324.)
- Permits a court to issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders listed in 1) and 3), above. (Family Code Section 6322.)
- Provides that any intentional and knowing violation of a protective order is a misdemeanor punishable by:
- A fine of not more than $1,000, or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. (Penal Code Section 273.6 (a).)
- A fine of not more than $2,000, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment, in the event that a violation results in physical injury. (Penal Code Section 273.6 (b).)
- Defines “connected device” to mean any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address. (Civil Code Section 1798.91.05 (b).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: To provide for the safety and security of victims or those at immediate risk of domestic violence, courts are permitted to issue protective orders to prohibit an alleged or potential abuser from engaging in several specified behaviors, including striking, threatening, stalking, contacting, harassing, destroying the property of, or coming within a specified distance of, the party requesting the order. If the victim is in immediate danger, these orders can be issued ex parte, meaning the party against whom the order is issued need not be present or heard at the proceedings approving the petition for the protective order. However, current law lacks provisions to enjoin the remote control of so-called “smart” devices such as thermostats, cameras, locks, lights, and speakers, the unwanted control or operation of which can severely affect the psychological and physical well-being of a victim. As modern technology moves toward automation, “smart” or “connected” technologies that are capable of remotely controlling devices and conditions in the home and vehicle are increasingly ubiquitous. Several reports suggest these devices have been used malevolently to abuse and exert control over victims of domestic violence. This bill explicitly endows courts with the authority to issue ex parte protective orders to enjoin abusers from remotely controlling connected devices affecting the home, vehicle, or property of the victim in order to provide victims of domestic violence with legal recourse from this emerging form of domestic abuse.
In support of the bill, the author states:
Domestic violence is a problem that affects millions of people regardless of race, gender, ethnic group, socioeconomic status, sexual orientation, or age. In the United States, an estimated twenty-three percent of adult women and fourteen percent of men have experienced an act of severe physical intimate partner violence within their lifetime. In California, the numbers are even higher.
AB 455 will provide additional security to victims, particularly of domestic violence, by [limiting] the ability of their abuser to control certain aspects of their lives. As technology advances, it’s important that our laws keep pace with the changes. Victims of crimes like domestic violence, stalking, and harassment shouldn’t have to fear being tormented on a regular basis through the devices they have come to rely on in their day to day routines.
Technology and domestic violence. In the fall of 2018, the Assembly Committee on Privacy & Consumer Protection and the Select Committee on Domestic Violence held a joint informational hearing to discuss “the intersection between technology and domestic violence.” Several personal stories and expert testimonies indicated that emerging technologies provide new avenues for domestic abuse, and that our existing legal framework concerning domestic violence is ambiguous at best and negligent at worst with respect to these modern forms of abuse. AB 455 was inspired by the recommendations prescribed by experts testifying at that hearing. An article in the New York Times from June 23, 2018, entitled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse, further illuminates the threats associated with new technology, namely smart devices, in domestic violence situations. That article described a number of situations in which abusers exerted remote control over the lives of their victims via connected devices, including the following examples:
One woman had turned on her air-conditioner, but said it then switched off without her touching it. Another said the code numbers of the digital lock at her front door changed every day and she could not figure out why. Still another told an abuse help line that she kept hearing the doorbell ring, but no one was there.
Their stories are part of a new pattern of behavior in domestic abuse cases tied to the rise of smart home technology. Internet-connected locks, speakers, thermostats, lights and cameras that have been marketed as the newest conveniences are now also being used as a means for harassment, monitoring, revenge and control.
In more than 30 interviews with The New York Times, domestic abuse victims, their lawyers, shelter workers and emergency responders described how the technology was becoming an alarming new tool. Abusers — using apps on their smartphones, which are connected to the internet-enabled devices — would remotely control everyday objects in the home, sometimes to watch and listen, other times to scare or show power. Even after a partner had left the home, the devices often stayed and continued to be used to intimidate and confuse.
Connected smart devices are increasingly present in the home and elsewhere. The role of connected devices, or devices that can connect to the internet and have an Internet Protocol or Bluetooth Address (See Civil Code Section 1798.91.05 (b)), in the daily lives of Americans has skyrocketed in recent years with the emergence of smart technologies designed to increase personal comfort, convenience, and efficiency. These devices are varied in nature, and include Wi-Fi enabled thermostats, speakers, door locks, cameras, lights, security systems, sprinklers, and refrigerators, all of which can be operated remotely from smartphone apps, computer programs, or internet websites. According to a 2017 report by McKinsey, 29 million homes in the United States had some form of smart technology, and this number has been growing at an average rate of 31% per year (K. Ahuja & M. Patel, There’s No Place Like [A Connected] Home, McKinsey & Company, 2017).
Given this rate of growth, it is reasonable to expect that the diversity of smart technology in homes will only increase over time, and as a result, the pervasiveness of connected devices with the capacity to affect lives in the home, vehicle, and otherwise is also likely to increase. Unfortunately, with the possibility for such innovation to improve our lives comes the capacity for malicious use of these devices, as described above and in ways not yet conceived. The ability to harass, abuse, or exert control over another person from anywhere in the world by blasting loud noise through speakers, turning the thermostat up or down to uninhabitable temperatures, denying access to the home or car by changing codes on smart locks, or surveilling activity through smart cameras, lends itself to abuse that can deny victims of these attacks the safe, comfortable lives all humans deserve.
Domestic violence is a frequent occurrence requiring unique opportunities for legal recourse. According to the National Intimate Partner and Sexual Violence Survey, more than one in every three women and one in every four men in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime. Nearly half of all women in the U.S. have experienced some form of psychological aggression by an intimate partner during their lifetime, including 41% who experience some form of coercive control. (Id.) These abuses take various forms, but all of them exert a severe negative impact on the psychological and/or physical health of the victim. To protect those most at risk of suffering the adverse consequences of domestic abuse, courts are permitted to issue domestic violence protective orders that prohibit abusers or potential abusers from engaging in specified behaviors that put the comfort and safety of their victims at risk. These behaviors include molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the victim. (Family Code Section 6200 et seq.) In circumstances in which law enforcement responding to a complaint believe the victim may be in immediate danger, judicial officers are permitted to issue these protective orders without the restrained party being present, otherwise known as an ex parte order.
However, as modern and accelerating advances in technology continue to reshape the nature of our quotidian activities and social engagements, the litany of behaviors that could pose a threat to the security and well-being of a victim in an abusive domestic relationship similarly expands. This bill seeks to address one symptom of modern technology’s potential to facilitate domestic abuse by permitting courts to issue ex parte orders to prohibit remote control of connected devices that affect the home, vehicle, or property of the victim to more appropriately address this new avenue for domestic abuse.
Author’s amendments. The author has prudently agreed to accept negotiated amendments that expand the scope of this bill from connected devices “in the home” of the filing party to connected devices “affecting the home, vehicle, or property” of the filing party to better encapsulate existing and anticipated avenues for this form of abuse.
Supporters identify an important supplementary issue regarding victim access to the connected devices in question. The Association of Certified Family Law Specialists (ACFLS) and the Executive Committee of the Family Law Section of the California Lawyers Association (FLEXCOM) have both expressed support for this bill as introduced, citing the increasing prevalence of domestic abuse and harassment via connected devices and the insufficiency of current law to address the issue. However, both supporting groups point out the unaddressed issue of needing to provide victims with the means to control these devices following enjoinder of the restrained party’s control of the devices, including by giving the protected party the ability to access these devices to update passwords for their own use. While this bill permits a court to prevent an abuser from controlling connected devices affecting the home, vehicle, or property of the victim, it does not explicitly provide a process for how to prevent the abuser from denying the victim use of these devices by changing passwords, not providing access information, etc. This may result in, for instance, the inability of a victim to adjust the thermostat or to lock the doors to their house. This issue is worth noting and the author may wish to consider amending the bill to create, or compel the Judicial Council to create, a process for transferring control of connected devices to the petitioner.
Recommended remedy for restoring victim access to connected devices presents privacy concerns. Both supporting groups suggest that the bill should be amended to include a provision allowing a court to order the restrained party to “provide the petitioner, in a writing, with the user ID, password or similar access information necessary for the petitioner to control these devices if [the restrained party] has knowledge of this information.” This solution presents serious privacy concerns and potential issues of constitutionality under the Fifth Amendment, discussed below. Notably, most people employ the same login information across multiple accounts, providing the petitioner, and potentially the courts, access to accounts that are not related to the protective enjoinder. A 2018 study by the password management firm LogMeIn surveyed 2,000 users across the United States, Australia, France, Germany, and the United Kingdom to assess habits relating to password diversity. The study found that over 58% of those surveyed “mostly or always” reuse the same password or a similar variation across all accounts. While the respondent could change passwords on accounts not relevant to enjoined devices, fear of forgetfulness was cited as the leading reason for password reuse, with 61% of respondents concerned about losing access to accounts with distinct passwords. Requiring the respondent to provide username and password information to the petitioner gives no assurance that the petitioner will not access other accounts, known or unknown to the respondent at the time of information transfer, that belong to the respondent, thus resulting in a breach of the respondent’s privacy that may be significantly broader than the scope of the claim.
Possible Fifth Amendment concerns with the recommended remedy for restoring victim access to connected devices. The Fifth Amendment guarantees that “no person shall be…compelled in any criminal case to be a witness against himself.” The United State Supreme Court, in United States v. Hubbell (2000) 530 U.S. 27, held that a successful invocation of the self-incrimination privilege prescribed by the Fifth Amendment requires all three of the following: 1) compulsion; 2) testimonial communication; and 3) self-incrimination. The Court noted in Hubbell that compelled entry of a safe’s combination would be considered testimonial, as it requires use of the “contents of [one’s] own mind.” (Id., at p. 34.). Compelling the written surrender of login information similarly requires revealing the contents of one’s own mind, thereby fulfilling the first two requirements. Although this information as it relates to the protective order may not itself incriminate the respondent, it may provide access to information that could bear on judgements of guilt or liability, including location and behavioral data from the connected devices themselves as well as potential access to accounts for which the respondent uses similar login credentials (e.g. email, social media, etc.). Evidence derived from access to these resources could reasonably incriminate the respondent in criminal proceedings if provided to the court directly or accessed by the petitioner and subsequently provided to the court.
Though the jurisprudence surrounding the application of Fifth Amendment rights in non-criminal proceedings is murky, domestic violence protective orders are typically issued concurrent to ongoing or pending criminal proceedings. The alleged behavior prompting a domestic violence protective order may also result in civil claims or custody decisions for which certain evidence provided in the protective order proceeding could disadvantage the respondent in other legal matters. Thus, the evidence obtained in the course of a hearing on a domestic violence restraining order could provide the petitioner with legal ammunition that could be used in another civil or custodial claim relating to the behavior that prompted the protective order, fulfilling the condition of self-incrimination. Ordering the respondent to surrender login information either to the court or to the petitioner could therefore be found to violate the respondent’s Fifth Amendment’s protections against compelled self-incrimination. For these reasons, the issue of how to restore a domestic violence victim’s control of connected devices affecting their home, vehicle, or other property, while critically important, likely requires a more nuanced solution than the statutory remedy suggested by the bill’s supporters.
ARGUMENTS IN SUPPORT: This bill is supported by the ACFLS, who contend:
Remotely controlling connected devices in the home of the other party can be a way for an abuser to use modern technology to engage in domestic abuse against his or her victim, especially if they are ordered to move out of the house. This statute updates the domestic violence statute to address new methods of abusive conduct as society evolves technologically.
FLEXCOM adds the following:
In our experience, this bill addresses an ongoing issue that is going to become more pervasive over time. A broad array of connected devices can be remotely controlled, including security cameras, household appliances, and a wide range of other devices. FLEXCOM notes the importance of providing ongoing peace of mind and protections for victims of domestic violence, which AB 455 strives to accomplish.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of Certified Family Law Specialists
Family Law Section of the California Lawyers Association
Opposition
None on file
Analysis Prepared by: Landon Klein / JUD. / (916) 319-2334
Date of Hearing: March 19, 2019
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 455
Author:(Kiley) – As Amended Ver:March 12, 2019
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: EX PARTE ORDERS: CONNECTED DEVICES
KEY ISSUE: Should A COURT BE PERMITTED TO issue A DOMESTIC VIOLENCE RESTRAINING ORDER TO PREVENT an alleged abuser from remotely controlling any connected devices AFFECTING THE HOME, VEHICLE, OR PROPERTY OF THeir victim?
SYNOPSIS
This bill expands the range of behaviors that can be prohibited by a court-issued domestic violence protective order to include remote control of connected devices that affect the home, vehicle, or property of the victim. It also requires the Judicial Council to update any forms or Rules of Court necessary to implement the bill’s provisions by January 1, 2021. Current law endows courts with the authority to issue protective orders to enjoin an alleged or potential abuser from engaging in several specified behaviors, including harassing, contacting, threatening, stalking, destroying personal property of, coming within a specified distance of, or disturbing the peace of the victim. Several reports have identified an emerging form of abuse by which abusers will harass, abuse, surveil, or otherwise exert control over victims through remote control of internet-enabled “smart” devices including thermostats, door locks, speakers, sprinklers, lights, and security cameras designed to facilitate one’s daily life. These devices are becoming increasingly prevalent in homes, with nearly 30 million homes in the United States incorporating some form of smart technology. Protective orders can exclude abusers from the dwelling of their victim, keep an abuser a specified distance away from their victim, and prohibit certain actions by which an abuser can molest a victim, but the ability to remotely control these connected devices is not tethered to the physical location of the abuser, making their control a unique form of abuse that, according to the author and bill supporters, justifies explicit authorization for courts to enjoin. By permitting courts to issue ex parte orders to enjoin remote control of devices affecting the home, vehicle, or property of another party, this bill addresses an emerging form of abuse that is of growing public concern, prudently including possible smart technologies that have not yet been developed in its broad scope.
This bill is supported by the Family Law Section of the California Lawyers Association and the Association of Certified Family Law Specialists, who argue “This statute updates the domestic violence statute to address new methods of abusive conduct as society evolves technologically.” Both supporting organizations suggest technical amendments raising the issue of an abuser’s ability to deny the victim access to connected devices despite an enjoinder permitted by this bill, since the victim may not have passwords or access codes necessary to operate them. Both organizations recommend requiring the abuser to surrender user ID and password information to the victim to allow the victim to control these devices as needed. However, this suggested remedy raises concerns about the privacy of the enjoined party, as most people use the same login information for most if not all accounts, as well as the possibility of potential Fifth Amendment violations by compelling a party to provide testimonial information that may allow access to incriminating evidence. Nonetheless, the author may wish to consider addressing the concern raised by these organizations, albeit by other means. There is no registered opposition to this bill.
SUMMARY: Allows a party to request that a court issue a restraining order to prohibit another party from remotely controlling connected devices affecting the protected party’s home, vehicle, or property. Specifically, this bill:
- Permits the court to issue an ex parte order enjoining a party from remotely controlling any connected devices affecting the home, vehicle, or property of the victim.
- Requires Judicial Council to develop or update any forms or rules of court that are necessary to implement this section by January 1, 2021.
EXISTING LAW:
- Permits a court to issue a domestic violence protective order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the other party. (Family Code Section 6200 et seq.)
- Allows protective orders to be issued ex parte after notice and a hearing, or by a judicial officer if a law enforcement officer recommends that the victim is in immediate danger of domestic violence. (Family Code Sections 6250, 6320, 6340.)
- Permits a court to issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. (Family Code Section 6321.)
- Permits a court to issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties. (Family Code Section 6324.)
- Permits a court to issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders listed in 1) and 3), above. (Family Code Section 6322.)
- Provides that any intentional and knowing violation of a protective order is a misdemeanor punishable by:
- A fine of not more than $1,000, or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. (Penal Code Section 273.6 (a).)
- A fine of not more than $2,000, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment, in the event that a violation results in physical injury. (Penal Code Section 273.6 (b).)
- Defines “connected device” to mean any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address. (Civil Code Section 1798.91.05 (b).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: To provide for the safety and security of victims or those at immediate risk of domestic violence, courts are permitted to issue protective orders to prohibit an alleged or potential abuser from engaging in several specified behaviors, including striking, threatening, stalking, contacting, harassing, destroying the property of, or coming within a specified distance of, the party requesting the order. If the victim is in immediate danger, these orders can be issued ex parte, meaning the party against whom the order is issued need not be present or heard at the proceedings approving the petition for the protective order. However, current law lacks provisions to enjoin the remote control of so-called “smart” devices such as thermostats, cameras, locks, lights, and speakers, the unwanted control or operation of which can severely affect the psychological and physical well-being of a victim. As modern technology moves toward automation, “smart” or “connected” technologies that are capable of remotely controlling devices and conditions in the home and vehicle are increasingly ubiquitous. Several reports suggest these devices have been used malevolently to abuse and exert control over victims of domestic violence. This bill explicitly endows courts with the authority to issue ex parte protective orders to enjoin abusers from remotely controlling connected devices affecting the home, vehicle, or property of the victim in order to provide victims of domestic violence with legal recourse from this emerging form of domestic abuse.
In support of the bill, the author states:
Domestic violence is a problem that affects millions of people regardless of race, gender, ethnic group, socioeconomic status, sexual orientation, or age. In the United States, an estimated twenty-three percent of adult women and fourteen percent of men have experienced an act of severe physical intimate partner violence within their lifetime. In California, the numbers are even higher.
AB 455 will provide additional security to victims, particularly of domestic violence, by [limiting] the ability of their abuser to control certain aspects of their lives. As technology advances, it’s important that our laws keep pace with the changes. Victims of crimes like domestic violence, stalking, and harassment shouldn’t have to fear being tormented on a regular basis through the devices they have come to rely on in their day to day routines.
Technology and domestic violence. In the fall of 2018, the Assembly Committee on Privacy & Consumer Protection and the Select Committee on Domestic Violence held a joint informational hearing to discuss “the intersection between technology and domestic violence.” Several personal stories and expert testimonies indicated that emerging technologies provide new avenues for domestic abuse, and that our existing legal framework concerning domestic violence is ambiguous at best and negligent at worst with respect to these modern forms of abuse. AB 455 was inspired by the recommendations prescribed by experts testifying at that hearing. An article in the New York Times from June 23, 2018, entitled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse, further illuminates the threats associated with new technology, namely smart devices, in domestic violence situations. That article described a number of situations in which abusers exerted remote control over the lives of their victims via connected devices, including the following examples:
One woman had turned on her air-conditioner, but said it then switched off without her touching it. Another said the code numbers of the digital lock at her front door changed every day and she could not figure out why. Still another told an abuse help line that she kept hearing the doorbell ring, but no one was there.
Their stories are part of a new pattern of behavior in domestic abuse cases tied to the rise of smart home technology. Internet-connected locks, speakers, thermostats, lights and cameras that have been marketed as the newest conveniences are now also being used as a means for harassment, monitoring, revenge and control.
In more than 30 interviews with The New York Times, domestic abuse victims, their lawyers, shelter workers and emergency responders described how the technology was becoming an alarming new tool. Abusers — using apps on their smartphones, which are connected to the internet-enabled devices — would remotely control everyday objects in the home, sometimes to watch and listen, other times to scare or show power. Even after a partner had left the home, the devices often stayed and continued to be used to intimidate and confuse.
Connected smart devices are increasingly present in the home and elsewhere. The role of connected devices, or devices that can connect to the internet and have an Internet Protocol or Bluetooth Address (See Civil Code Section 1798.91.05 (b)), in the daily lives of Americans has skyrocketed in recent years with the emergence of smart technologies designed to increase personal comfort, convenience, and efficiency. These devices are varied in nature, and include Wi-Fi enabled thermostats, speakers, door locks, cameras, lights, security systems, sprinklers, and refrigerators, all of which can be operated remotely from smartphone apps, computer programs, or internet websites. According to a 2017 report by McKinsey, 29 million homes in the United States had some form of smart technology, and this number has been growing at an average rate of 31% per year (K. Ahuja & M. Patel, There’s No Place Like [A Connected] Home, McKinsey & Company, 2017).
Given this rate of growth, it is reasonable to expect that the diversity of smart technology in homes will only increase over time, and as a result, the pervasiveness of connected devices with the capacity to affect lives in the home, vehicle, and otherwise is also likely to increase. Unfortunately, with the possibility for such innovation to improve our lives comes the capacity for malicious use of these devices, as described above and in ways not yet conceived. The ability to harass, abuse, or exert control over another person from anywhere in the world by blasting loud noise through speakers, turning the thermostat up or down to uninhabitable temperatures, denying access to the home or car by changing codes on smart locks, or surveilling activity through smart cameras, lends itself to abuse that can deny victims of these attacks the safe, comfortable lives all humans deserve.
Domestic violence is a frequent occurrence requiring unique opportunities for legal recourse. According to the National Intimate Partner and Sexual Violence Survey, more than one in every three women and one in every four men in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime. Nearly half of all women in the U.S. have experienced some form of psychological aggression by an intimate partner during their lifetime, including 41% who experience some form of coercive control. (Id.) These abuses take various forms, but all of them exert a severe negative impact on the psychological and/or physical health of the victim. To protect those most at risk of suffering the adverse consequences of domestic abuse, courts are permitted to issue domestic violence protective orders that prohibit abusers or potential abusers from engaging in specified behaviors that put the comfort and safety of their victims at risk. These behaviors include molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the victim. (Family Code Section 6200 et seq.) In circumstances in which law enforcement responding to a complaint believe the victim may be in immediate danger, judicial officers are permitted to issue these protective orders without the restrained party being present, otherwise known as an ex parte order.
However, as modern and accelerating advances in technology continue to reshape the nature of our quotidian activities and social engagements, the litany of behaviors that could pose a threat to the security and well-being of a victim in an abusive domestic relationship similarly expands. This bill seeks to address one symptom of modern technology’s potential to facilitate domestic abuse by permitting courts to issue ex parte orders to prohibit remote control of connected devices that affect the home, vehicle, or property of the victim to more appropriately address this new avenue for domestic abuse.
Author’s amendments. The author has prudently agreed to accept negotiated amendments that expand the scope of this bill from connected devices “in the home” of the filing party to connected devices “affecting the home, vehicle, or property” of the filing party to better encapsulate existing and anticipated avenues for this form of abuse.
Supporters identify an important supplementary issue regarding victim access to the connected devices in question. The Association of Certified Family Law Specialists (ACFLS) and the Executive Committee of the Family Law Section of the California Lawyers Association (FLEXCOM) have both expressed support for this bill as introduced, citing the increasing prevalence of domestic abuse and harassment via connected devices and the insufficiency of current law to address the issue. However, both supporting groups point out the unaddressed issue of needing to provide victims with the means to control these devices following enjoinder of the restrained party’s control of the devices, including by giving the protected party the ability to access these devices to update passwords for their own use. While this bill permits a court to prevent an abuser from controlling connected devices affecting the home, vehicle, or property of the victim, it does not explicitly provide a process for how to prevent the abuser from denying the victim use of these devices by changing passwords, not providing access information, etc. This may result in, for instance, the inability of a victim to adjust the thermostat or to lock the doors to their house. This issue is worth noting and the author may wish to consider amending the bill to create, or compel the Judicial Council to create, a process for transferring control of connected devices to the petitioner.
Recommended remedy for restoring victim access to connected devices presents privacy concerns. Both supporting groups suggest that the bill should be amended to include a provision allowing a court to order the restrained party to “provide the petitioner, in a writing, with the user ID, password or similar access information necessary for the petitioner to control these devices if [the restrained party] has knowledge of this information.” This solution presents serious privacy concerns and potential issues of constitutionality under the Fifth Amendment, discussed below. Notably, most people employ the same login information across multiple accounts, providing the petitioner, and potentially the courts, access to accounts that are not related to the protective enjoinder. A 2018 study by the password management firm LogMeIn surveyed 2,000 users across the United States, Australia, France, Germany, and the United Kingdom to assess habits relating to password diversity. The study found that over 58% of those surveyed “mostly or always” reuse the same password or a similar variation across all accounts. While the respondent could change passwords on accounts not relevant to enjoined devices, fear of forgetfulness was cited as the leading reason for password reuse, with 61% of respondents concerned about losing access to accounts with distinct passwords. Requiring the respondent to provide username and password information to the petitioner gives no assurance that the petitioner will not access other accounts, known or unknown to the respondent at the time of information transfer, that belong to the respondent, thus resulting in a breach of the respondent’s privacy that may be significantly broader than the scope of the claim.
Possible Fifth Amendment concerns with the recommended remedy for restoring victim access to connected devices. The Fifth Amendment guarantees that “no person shall be…compelled in any criminal case to be a witness against himself.” The United State Supreme Court, in United States v. Hubbell (2000) 530 U.S. 27, held that a successful invocation of the self-incrimination privilege prescribed by the Fifth Amendment requires all three of the following: 1) compulsion; 2) testimonial communication; and 3) self-incrimination. The Court noted in Hubbell that compelled entry of a safe’s combination would be considered testimonial, as it requires use of the “contents of [one’s] own mind.” (Id., at p. 34.). Compelling the written surrender of login information similarly requires revealing the contents of one’s own mind, thereby fulfilling the first two requirements. Although this information as it relates to the protective order may not itself incriminate the respondent, it may provide access to information that could bear on judgements of guilt or liability, including location and behavioral data from the connected devices themselves as well as potential access to accounts for which the respondent uses similar login credentials (e.g. email, social media, etc.). Evidence derived from access to these resources could reasonably incriminate the respondent in criminal proceedings if provided to the court directly or accessed by the petitioner and subsequently provided to the court.
Though the jurisprudence surrounding the application of Fifth Amendment rights in non-criminal proceedings is murky, domestic violence protective orders are typically issued concurrent to ongoing or pending criminal proceedings. The alleged behavior prompting a domestic violence protective order may also result in civil claims or custody decisions for which certain evidence provided in the protective order proceeding could disadvantage the respondent in other legal matters. Thus, the evidence obtained in the course of a hearing on a domestic violence restraining order could provide the petitioner with legal ammunition that could be used in another civil or custodial claim relating to the behavior that prompted the protective order, fulfilling the condition of self-incrimination. Ordering the respondent to surrender login information either to the court or to the petitioner could therefore be found to violate the respondent’s Fifth Amendment’s protections against compelled self-incrimination. For these reasons, the issue of how to restore a domestic violence victim’s control of connected devices affecting their home, vehicle, or other property, while critically important, likely requires a more nuanced solution than the statutory remedy suggested by the bill’s supporters.
ARGUMENTS IN SUPPORT: This bill is supported by the ACFLS, who contend:
Remotely controlling connected devices in the home of the other party can be a way for an abuser to use modern technology to engage in domestic abuse against his or her victim, especially if they are ordered to move out of the house. This statute updates the domestic violence statute to address new methods of abusive conduct as society evolves technologically.
FLEXCOM adds the following:
In our experience, this bill addresses an ongoing issue that is going to become more pervasive over time. A broad array of connected devices can be remotely controlled, including security cameras, household appliances, and a wide range of other devices. FLEXCOM notes the importance of providing ongoing peace of mind and protections for victims of domestic violence, which AB 455 strives to accomplish.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of Certified Family Law Specialists
Family Law Section of the California Lawyers Association
Opposition
None on file
Analysis Prepared by: Landon Klein / JUD. / (916) 319-2334
Bill Author
Bill Co-Author(s):