BILL ANALYSIS
SB 1796
Page 1
Date of Hearing: June 30, 1998
ASSEMBLY COMMITTEE ON JUDICIARY
Martha Escutia, Chair
SB 1796 (Leslie) - As Amended: June 25, 1998
SUBJECT : CYBERSTALKING: ELECTRONIC HARASSMENT
KEY ISSUE : SHOULD ELECTRONIC COMMUNICATIONS BE INCLUDED IN THE
ACTIONS THAT CAN CONSTITUTE THE CRIMES OF STALKING AND HARASSMENT?
SUMMARY : Updates stalking and harassment laws to accommodate new
electronic communications technology. Specifically, this bill :
1) Expands the definition of "credible threat" in the tort of
stalking to include threats communicated by means of an
electronic communication device. It also defines "electronic
communication device" to include, but not be limited to,
telephones, cellular telephones, computers, video recorders,
televisions, fax machines, or pagers.
2) Clarifies that the provisions of the "terrorist threat" offense
apply to threats made by means of an electronic communication
device.
3) Expands provisions of the offense related to harassing phone
calls to include repeated contact by means of an electronic
communication device with specified intent. It also exempts
electronic contacts made in good faith with respect to the
above provision.
4) Provides that any offense committed by use of an electronic
communication device or medium, including the Internet, may be
deemed to have been committed where the electronic
communication or communications were originally sent or first
viewed by the recipient.
5) Provides this bill will become operative only if AB 2351
(Hertzberg) is also enacted.
EXISTING LAW :
1) Provides that a person is liable for the tort of stalking when
the defendant engaged in a pattern of conduct intended to
follow, alarm, or harass, resulting in the plaintiff reasonably
fearing for his or her safety or the safety of an immediate
family member, where the defendant has either made a credible
threat or violated a restraining order. (Civil Code section
1708.7.)
2) Prohibits the willful issuance of a threat to commit a crime
which will result in the death or great bodily injury of
another, with the specific intent that the statement be taken
as a threat even if there is no actual intent of carrying out
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the crime, where the threat is so unequivocal, immediate and
specific so as to cause the recipient to reasonably be in
sustained fear for his or her own safety or the safety of his
or her immediate family. (Penal Code section 422.)
3) Prohibits stalking, defined as the willful, malicious, and
repeated following or harassing of another, where a credible
threat, as defined, has been communicated to the victim with
the intent of placing the victim in reasonable fear for his or
her own safety. (Penal Code section 646.9.)
4) Prohibits, regardless of the good faith of the caller, the
making of telephone calls to others with the intent to annoy,
where the caller either uses obscene language or makes threats
to the other parties person or property. Prohibits the
repeated telephoning of another at the recipient's residence
or, under certain circumstances, place of work, with intent to
annoy, except where the repeated telephoning is conducted in
good faith. (Penal Code section 653m.)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, SB 1796 seeks to make
electronic communication used to stalk or harass victims
punishable under current stalking and harassment laws. New
"high-tech stalking" can take the form of threatening, obscene or
hateful e-mail, pages, and voice mail messages. California was
the first state in the nation to pass an anti-stalking law in
1990. Since then, every state in the nation has followed
California's lead and have passed similar anti-stalking
legislation; at least seven other states have already updated
their laws to include electronic communication. He states that
California needs to update its own laws to protect Californians
from electronic harassment and stalking as we enter the 21st
century.
Overview . In 1990, California became the first state in the
nation to enact making stalking a crime. (Penal Code Section
946.9.) This law was prompted by the murders of a prominent
actress and five other women in Orange County slain by former
intimates who stalked them. That law made it a crime to
repeatedly harass or follow another person combined with making a
"credible threat" that puts that person in reasonable fear for
his/her immediate family. Since that time, 49 other states have
enacted similar laws.
Of those states that have enacted stalking laws, seven have also
enacted language that deals directly with electronic
communications, or stalking via computer network, pagers, faxes,
etc. These states include Arizona, Alaska, Connecticut, Michigan,
New York, Oklahoma, and Wyoming.
In 1996, the Federal Government passed an amendment as part of the
"Communications Decency Act" to the Communications Act of 1934 to
change language from "interstate or foreign communication by means
of a telephone" to "interstate or foreign communication by means
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of a telecommunications device," which includes computers using
on-line services, pagers, cell phones, and faxes. This change was
prompted by the increase in harassment on the rapidly growing
Internet, and the subsequent lack of legislation dealing with that
harassment.
Cyberstalking . This bill seeks to make "cyberstalking" punishable
under current harassment and stalking laws. Cyberstalking is a
new high-tech version of stalking. At its worst, cyberstalking
can become "real world" stalking, with potentially dangerous and
even deadly consequences. Cyberstalking can take the form of
threatening, obscene, or hateful e-mail; pages; faxes; and voice
mail messages.
Specifically, this bill amends law relating to stalking, terrorist
threats, and telephone harassment, as well as the tort of
stalking. By adding "electronic communication" to these code
sections, it will not matter if the
harasser is capable of carrying out the threat--it will be enough
that the target believes the threat to be credible and "had
reasonable fear for his or her safety or the safety of his or her
immediate family."
Credible Threat . According to the author, "Law enforcement and
prosecutors find that the largest problem in handling
cyberstalking cases within the stalking laws in California, is
proving that there is a 'credible threat'. A threat made to
physically attack a person, that comes from another state, or
outside the country, would be hard to prove as 'credible' in a
court of law, as the probability of someone traveling a
significant distance to physically attack someone is unlikely.
However, someone threatened on-line has no way of knowing if the
person making the threat can carry it out or not."
ARGUMENTS IN SUPPORT : The California Chapter of the National
Organization of Women (California NOW) supports this bill because
"many people in California have experienced the terror of knowing
that someone is stalking them or someone close to them. The
increasing popularity of electronic communication has resulted in
giving stalkers a new medium in which they may terrorize their
victims. SB 1796 would give law enforcement the tools to stop
these stalkers."
The California Psychiatric Association (CPA) supports this bill
because a "credible threat is no less threatening when given using
the internet or other new technology than by use of any other
means. It should be treated the same as any other stalking."
Cyber Angels, the Internet safety organization, states that there
are an "estimated 40,000 cyberstalkers in the USA using and
abusing Internet technology to stalk, trace, invade privacy,
harass and abuse their victims."
ARGUMENTS IN OPPOSITION : The California Attorneys for Criminal
Justice (CACJ) opposes this bill because the "Internet is at
present a place of relatively free and open communications, in
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part because of the safety of such communications: no one need
know who you are. It is rightfully much more difficult to show
that a threat by computer reasonably puts someone into fear, as
such a threat can be made without even knowing where the target of
the threat lives. Explicitly including electronic communications
among those which may constitute stalking or harassment, then, is
both unnecessary, as such communications are already covered where
appropriate under existing law, and potentially harmful, by making
it more likely that persons will be convicted in situations were
no truly credible threat was made."
Related Pending Legislation : AB 2351 (Hertzberg), a complimentary
measure which is designed to deter a number of computer crimes,
including making false personation, threats, or annoying
communication through the Internet a crime, is pending in the
Senate Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
CA National Organization for WomenCA Attorneys for Criminal
Justice
CA Psychiatric Association
Sacramento Area Stalking Survivors
KIDS Safe
CA State Sheriffs' Association
CA Peace Officers' Association
CA Police Chiefs' Association
CA District Attorneys Association
Santa Clara County District Attorney
Attorney General's Office
Cyber Angels Internet Safety
Organization
CA for Consumer Protection
The Adult Entertainment Industry
Education Fund
Commission on the Status of Women
Analysis prepared by : Dan Pone / ajud / (916) 319-2334