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SB-500 Extortion.(2017-2018)

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Date Published: 03/21/2017 04:00 AM
SB500:v98#DOCUMENT

Amended  IN  Senate  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 500


Introduced by Senator Leyva
(Principal coauthor: Assembly Member Cristina Garcia)
(Coauthor: Assembly Member Bocanegra)

February 16, 2017


An act to amend Sections 502 and 518 of Section 502 of, and to add Section 267.5 to, the Penal Code, relating to extortion.


LEGISLATIVE COUNSEL'S DIGEST


SB 500, as amended, Leyva. Extortion.
Existing law makes it a crime for any person to knowingly access and without permission alter, damage, delete, destroy, or otherwise use any data, computer, computer system, or computer network to, among other things, wrongfully control or obtain money, property, or data. Existing law additionally makes it a crime to knowingly access and without permission take, copy, or make use of any data from a computer, computer system, or computer network.
This bill would specify that data, for purposes of these crimes includes sexually explicit recordings or images.
Existing law defines extortion as the obtaining of property from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

This bill would expand that definition to include obtaining property or other things of value, including sexual acts or sexually explicit images, from another person, induced by a wrongful use of force or fear, or under color of official right. By expanding the definition of a crime, this bill would create a state-mandated local program.

This bill would create the crime of sexual extortion. The bill would make a person guilty of sexual extortion if he or she, with intent to coerce any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, threatens physical harm to the person or threatens the person in specified ways. The bill would make a violation of that provision punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding $2,000, or by imprisonment in the state prison for 16 months or 2 or 3 years, and by a fine not exceeding $10,000.
This bill would additionally make a person guilty of sexual extortion if he or she knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening the person in specified ways. The bill would make a violation of that provision punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 267.5 is added to the Penal Code, to read:

267.5.
 (a) Any person who does either of the following is guilty of sexual extortion:
(1)  Threatens physical harm to a person, threatens to injure the property or reputation of a person, or threatens to distribute an image or video of the intimate body part or parts of a person or of a person engaged in sexual conduct with an intent to coerce the person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months or two or three years, and by a fine not exceeding ten thousand dollars ($10,000).
(2) Knowingly causes any person to engage in sexual conduct or to produce, provide, or distribute any image, video, or other recording which depicts the intimate body part or parts of the person or of the person engaged in sexual conduct, by threatening physical harm to the person, threatening to injure the property or reputation of the person, or threatening to distribute an image or video of the intimate body part or parts of the person or of the person engaged in sexual conduct. A violation of this paragraph is punishable by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b) It is a separate offense under this section for each person subjected to the offense outlined in subdivision (a) and for each separate time a person is subjected to the offense in subdivision (a).
(c) If the court finds at the time of conviction or sentencing that the person committed the offense in subdivision (a) as a result of sexual compulsion or for purposes of sexual gratification, the court may, pursuant to Section 290.006, order the person to register pursuant to the Sex Offender Registration Act. The court shall state on the record the reasons for its findings and the reasons for requiring registration.
(d) This section does not prohibit an individual from being charged and convicted of separate criminal acts committed while violating or attempting to violate this section.
(e) As used in this section, the following terms have the following meanings:
(1) “Distribute” means to transfer possession of, whether with or without consideration.
(2) “Intimate body part” means any portion of the genitals, the anus, and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.
(3) “Sexual conduct” means any of the following:
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals.
(B) Penetration of the vagina or rectum by any object.
(C) Masturbation for the purpose of sexual stimulation of the viewer.
(D) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.
(E) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.
(F) Defecation or urination for the purpose of sexual stimulation of the viewer.

SECTION 1.SEC. 2.

 Section 502 of the Penal Code is amended to read:

502.
 (a) It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.
(b) For the purposes of this section, the following terms have the following meanings:
(1) “Access” means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
(2) “Computer network” means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.
(3) “Computer program or software” means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions.
(4) “Computer services” includes, but is not limited to, computer time, data processing, or storage functions, Internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network.
(5) “Computer system” means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.
(6) “Government computer system” means any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity.
(7) “Public safety infrastructure computer system” means any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies.
(8) “Data” means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. Data includes, but is not limited to, sexually explicit recordings or images.
(9) “Supporting documentation” includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software.
(10) “Injury” means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
(11) “Victim expenditure” means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access.
(12) “Computer contaminant” means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, that are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.
(13) “Internet domain name” means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost character string specifying the top of the hierarchy.
(14) “Electronic mail” means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
(15) “Profile” means either of the following:
(A) A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer.
(B) An Internet Web site user’s personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.
(c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3) Knowingly and without permission uses or causes to be used computer services.
(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9) Knowingly and without permission uses the Internet domain name or profile of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages or posts and thereby damages or causes damage to a computer, computer data, computer system, or computer network.
(10) Knowingly and without permission disrupts or causes the disruption of government computer services or denies or causes the denial of government computer services to an authorized user of a government computer, computer system, or computer network.
(11) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a public safety infrastructure computer system computer, computer system, or computer network.
(12) Knowingly and without permission disrupts or causes the disruption of public safety infrastructure computer system computer services or denies or causes the denial of computer services to an authorized user of a public safety infrastructure computer system computer, computer system, or computer network.
(13) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or public safety infrastructure computer system computer, computer system, or computer network in violation of this section.
(14) Knowingly introduces any computer contaminant into any public safety infrastructure computer system computer, computer system, or computer network.
(d) (1) Any person who violates any of the provisions of paragraph (1), (2), (4), (5), (10), (11), or (12) of subdivision (c) is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years and a fine not exceeding ten thousand dollars ($10,000), or a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.
(2) Any person who violates paragraph (3) of subdivision (c) is punishable as follows:
(A) For the first violation that does not result in injury, and where the value of the computer services used does not exceed nine hundred fifty dollars ($950), by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B) For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds nine hundred fifty dollars ($950), or for any second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(3) Any person who violates paragraph (6), (7), or (13) of subdivision (c) is punishable as follows:
(A) For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B) For any violation that results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(C) For any violation that results in a victim expenditure in an amount greater than five thousand dollars ($5,000), by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(4) Any person who violates paragraph (8) or (14) of subdivision (c) is punishable as follows:
(A) For a first violation that does not result in injury, a misdemeanor punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(B) For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
(5) Any person who violates paragraph (9) of subdivision (c) is punishable as follows:
(A) For a first violation that does not result in injury, an infraction punishable by a fine not exceeding one thousand dollars ($1,000).
(B) For any violation that results in injury, or for a second or subsequent violation, by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e) (1) In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.
(2) In any action brought pursuant to this subdivision the court may award reasonable attorney’s fees.
(3) A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect.
(4) In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.
(5) No action may be brought pursuant to this subdivision unless it is initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.
(f) This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws.
(g) Any computer, computer system, computer network, or any software or data, owned by the defendant, that is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01.
(h) (1) Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
(2) Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employee’s activities do not cause an injury, to the employer or another, or provided that the value of supplies or computer services which are used does not exceed an accumulated total of two hundred fifty dollars ($250).
(i) No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
(j) For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.
(k) In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following:
(1) The court shall consider prohibitions on access to and use of computers.
(2) Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense.

SEC. 2.Section 518 of the Penal Code is amended to read:
518.

Extortion is the obtaining of property or other things of value, including sexual acts or sexually explicit images, from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.