BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 451 (Maddox)
As Amended April 15, 1999
Hearing date: June 22, 1999
Penal Code
JM:br
HIGH-TECH CRIME - COMPUTER FORFEITURE
HISTORY
Source: Sacramento County High-tech Crime Task Force
Prior Legislation:SB 438 (Johnston) - Chapter 906, Statutes
of 1997
SB 1734 (Johnston) - Chapter 555, Statutes
of 1998
Support: American Electronics Association; California
Manufacturers Association; California District
Attorneys' Association; Los Angeles County
District Attorney; Concerns of Police Survivors
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 71 - Noes 1
KEY ISSUES
SHOULD THE COMPUTER FORFEITURE LAW SPECIFICALLY LIST THE
CODE SECTIONS DEFINING MOST OR ALL COMPUTER CRIMES, INSTEAD
OF THE MORE GENERAL, AND POSSIBLY AMBIGUOUS, PROVISIONS IN
EXISTING LAW?
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SHOULD THE TERM "SCOPE OF EMPLOYMENT" BE DEFINED FOR
PURPOSES OF COMPUTER CRIMES BY EMPLOYEES NOT COMMITTED
WITHIN THE SCOPE OF THEIR EMPLOYMENT?
(CONTINUED)
SHOULD CRIMINAL PENALTIES NOT APPLY TO MISUSE OF COMPUTER EQUIPMENT OR SYSTEMS
BY AN EMPLOYEE NOT WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT IF NO
DAMAGE/ALTERATION OCCURS AND THE VALUE OF SERVICES TAKEN DOES NOT EXCEED $100?
PURPOSE
The purpose of this bill is to substantially expand the
ability of law enforcement officials to seek forfeiture of
computer equipment used in the commission of crimes.
The purpose of this bill is to clarify certain computer
crime statutes.
Existing law provides that any person who alters, forges,
or counterfeits checks, money orders, promissory notes,
contracts, powers of attorney, stock certificates and other
specified financial instruments is guilty of forgery,
punishable as an alternate misdemeanor/felony. A
misdemeanor violation is punishable up to one year in
county jail; a felony violation is punishable by 16 months,
or 2 or 3 years in state prison. (Pen. Code 470(d) and
473.)
Existing law provides that any person who alters, forges,
duplicates or counterfeits any driver's license or
identification card with the intent to use the license or
care to facilitate a forgery is guilty of forgery,
punishable as an alternate misdemeanor/felony. A
misdemeanor violation is punishable up to one year in
county jail; a felony violation is punishable by 16 months,
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or 2 or 3 years in state prison. (Pen. Code 470a and
473.)
Existing law provides that any person who forges or
counterfeits any of the following seals is guilty of
forgery, punishable as an alternate misdemeanor/felony:
the State, any public officer, any court of record, any
corporation, and any other state, government, or country.
A misdemeanor violation is punishable up to one year in
county jail; a felony violation is punishable by 16 months,
or 2 or 3 years in state prison. (Pen. Code 472 and
473.)
Existing law provides that any person who makes or
possesses any apparatus, paper, metal, or machine used to
counterfeit coin or bills is guilty of a felony punishable
in the state prison for 2, 3 or 4 years, and all implements
mentioned above must be destroyed. (Pen. Code 480.)
Existing law provides that any person who makes, passes, or
publishes, with the intent to defraud, any fictitious or
altered bill, note or check purporting to be authentic, is
guilty of forgery, punishable as an alternate
misdemeanor/felony. A misdemeanor violation is punishable
up to one year in county jail; a felony violation is
punishable by 16 months, or 2 or 3 years in state prison.
(Pen. Code 476 and 473.)
Existing law provides that any person who knowingly
accesses and without permission alters, damages, deletes,
destroys or otherwise uses any data, computer, computer
system, or computer network in order to: (a) devise or
execute any scheme to defraud or extort, or (b) wrongfully
control or obtain money, property or data is guilty of an
alternate misdemeanor/felony. A misdemeanor violation is
punishable by up to one year in county jail, a $5,000 fine,
or both; a felony violation is punishable by 16 months, or
2 or 3 years in state prison, a $10,000 fine, or both.
(Pen. Code 502(c)(1) and 502 (d)(1).)
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Existing law provides that any person who knowingly and
without permission accesses or causes to be accessed any
computer, computer system, or computer network is
punishable as follows:
a) For a first violation resulting in no injury, an
infraction with a fine not to exceed $250;
b) For any violation resulting in a victim expense not
greater than $5,000, or for asecond or subsequent
violation, a misdemeanor, punishable up to a year on
county
jail, a $5,000 fine, or both; and,
c) For any violation resulting in a victim expense
greater than $5,000, an alternate misdemeanor/felony.
A misdemeanor violation is punishable up to one year
in county jail, by a $5,000 fine, or both; a felony
violation is punishable by 16 months, or 2 or 3 years
in state prison, a $10,000 fine, or both. (Pen. Code
502(c)(7), 502(d)(3)(A) - (C).)
Existing law provides that any person who knowingly
introduces any computer contaminant into any computer,
computer system, or computer network is guilty of an
alternate infraction/misdemeanor. (Pen. Code 502(c)(8),
502(d)(3)(A) and 502(d)(3)(B).)
Existing law allows forfeiture of telephone, and telegraph
equipment used in fraudulent access to telephone or
telegraph services, and soliciting/advertising such
fraudulent activity. (Pen. Code 502.01.)
Existing law allows forfeiture of computer equipment where
the defendant:
(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
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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 of another individual, corporation, or entity
in connection with the sending of one or more electronic
mail messages, and thereby damages or causes damage to a
computer, computer system, or computer network. (Pen.
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Code 502.01, subd. (c).)
This bill specifically lists, and may expand, the
computer-related crimes for which the computer used in the
commission of the offense may be forfeited to include
virtually any computer crime, as follows:
a) Forgery (Pen. Code<1> 470);
b) Forging a driver's license or identification card (
470a);
c) Counterfeiting public and private seals ( 472);
d) Forging bills, notes, and checks ( 476);
e) Counterfeiting money (480);
f) Acquiring four or more access cards in a 12-month period
( 484e, subd. (b));
g) Acquiring access card account information with intent to
defraud ( 484e, subd. (d));
h) Making or altering a counterfeit access card with intent
to defraud ( 484f, subd. (a));
i) Altering/modifying access card account information with
intent to defraud (484i, subd. (b));
j) Knowingly accessing and without permission using
computer systems to defraud, deceive, extort or obtain
money or property; knowingly accessing and without
permission taking, copying, or using computer data;
knowingly and without permission using computer services;
knowingly accessing and without permission adding, deleting
or destroying data, software, or programs; knowingly and
without permission disrupting or denying computer services
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<1> All statutory references are to the Penal Code unless
otherwise noted.
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to an authorized user; knowingly and without permission
providing a means of accessing a computer; knowingly and
without permission accessing any computer, computer system
or network; knowingly introducing a contaminant into any
computer, computer system or network; knowingly and without
permission using the Internet domain name of another person
to send e-mail which damages a computer, or computer system
or network; ( 502, subd. (c))
k) False impersonation ( 529);
l) Producing, selling or transferring a false birth or
baptism certificate ( 529s);
m) Using personal identifying information without consent.
( 530.5.)
This bill , as does existing law, authorizes a court to
return seized computer-related property to a claimant who
has a valid interest. However, no person shall hold a
valid interest if the prosecutor shows the claimant knew or
should have known the property was being used to commit one
of the violations enumerated above.
This bill provides that if a minor uses computer-related
equipment owned by parents or guardians to commit a
violation listed above, the equipment is subject to
forfeiture. However, the parent or guardian can prevent
the forfeiture by affirming that the minor shall not have
access to any such equipment for two years
This bill provides that if the minor is convicted within
two years of another computer crime, the computer equipment
will be subject to forfeiture. The bill further provides
that if the parent or guardian makes full restitution to
the victim in an amount or manner determined by the court,
the parent's/guardian's computer equipment is not subject
to forfeiture.
This bill provides an exemption to specified
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computer-related violations for any person who accesses his
or her employer's computer system, network, program or data
when acting within the scope of lawful employment, and
defines "scope of employment."
This bill provides that using computer services without
permission does not penalize any acts committed outside a
person's employment, provided that the acts do not cause an
injury to any computer system, or provided that the value
of supplies used does not exceed $100.
COMMENTS
1. Need for This Bill
Author's statement:
Many Penal Code sections do not include
provisions allowing for the disposal of a
computer system used to perpetrate a crime.
Incredibly, when a computer crime prosecution
falls under one of these statutes law enforcement
is obligated to return the computer used to
commit the crime. As a result, after conviction
criminals now demand their computers back and the
police are required to return the systems. This
loophole does nothing to prevent future criminal
behavior, instead it allows a criminal to "get
back to work" as soon as they are free. The
Sacramento County District Attorney's office
reports that high-tech criminals are some of the
worst recidivists and putting the computer back
in their hands only expedites their return to
criminal conduct.
AB 451 allows the court to confiscate computer
systems used to commit high-tech crime regardless
of the Penal Code section that crime is
prosecuted under. Because the bill uses the same
process currently in place for other forfeitures,
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adequate safeguards exist to protect against
constitutional violations.
AB 451 also closes a loophole that allows
disaffected employees to maliciously tamper with
a company's database. For example, if an
employee's job involves modifying or deleting
files from a computer and that employee decides
to delete an entire database out of malice, the
employee could avoid prosecution by claiming the
deletion of files was within the scope of their
employment. AB 451 closes this loophole by
providing a definition of "scope of employment."
Society should not encourage a computer
criminal's illegal activity or a malicious
employee's victimization of an employer. AB 451
prevents this type of criminal behavior.
This legislation is named in honor of California
Highway Patrol Officer Don Burt who was brutally
murdered in 1996 when, on a routine traffic stop,
Officer Burt discovered computer manufactured
counterfeit checks in a suspect's vehicle.
2. Is This Law Necessary to Guarantee Forfeiture of Computer
Equipment Used in Fraud and Forgery Cases?
The author's stated goal is to make certain that computers
and computer systems used to commit "high-tech" crimes can
be forfeited to the state. The author's background
information states that courts are often forced to return
computer equipment back to criminals who used the equipment
"to perpetrate a crime." However, the circumstances of
such cases are not set out in the background information.
West's Annotated Penal Code includes no appellate cases
interpreting the telecommunications and computer forfeiture
provisions.
Penal Code section 502, subdivision (c), contains nine
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paragraphs detailing a variety of computer-related crimes
that subject the computer equipment used to forfeiture.
Section 502, subdivision (c)(1) is particularly broad. It
expressly includes situations where a person "knowingly
accesses and without permission alters, damages, destroys
or uses computer systems or data to defraud, deceive,
extort, or wrongfully obtain money, property or data." It
would appear that this language arguably covers the use of
a computer to make access cards, currency, identification
cards etc., where those documents or things are used to
defraud or deceive.
The analysis of the Assembly Public Safety Committee noted
that the forfeiture provisions may turn on the
interpretation of the term "knowingly accesses." The
analysis raised the issue of whether a court might narrowly
interpret this term to mean unauthorized access of
another's computer, not the fraudulent or illegal use of
the perpetrator's computer. Any ambiguity in the provision
may flow from the term "without permission." The provision
could perhaps be clarified to state that forfeiture applies
where a person uses his or her own computer to deceive,
defraud etc., and that the lack of permission language
applies to damaging, destroying or altering equipment or
data.
One case cited in the Assembly Public Safety Committee
analysis (People v. Lamonte (1997) 53 Cal.App.4th 544)
involved a defendant who had been convicted of burglary and
possession of a firearm by a convicted felon. Lamonte had
originally been charged with computer crimes related to
access (ATM and similar) cards. These crimes were
dismissed in a negotiated plea. The prosecutor then asked
the court at sentencing to order confiscation of Lamonte's
computer and phone equipment which had been found in the
van in which Lamonte lived. The trial court granted the
request, but the Court of Appeal overturned the order.
(Id, at 546-553.) It appears that forfeiture would have
been available if the computer crimes had been part of the
plea agreement or if confiscation of the computer equipment
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had been made part of the agreement.
However, oddly enough, the court in Lamonte did not discuss
the computer forfeiture provisions in Penal Code section
502.01. It appears further that forfeiture would not have
been allowed even under this bill, as the bill only allows
forfeiture for specified computer offenses, not burglary.
3. Forfeiture for Infractions
Existing law allows forfeiture of computer equipment used
in violation of Penal Code section 502, subdivision (c).
It appears that this subdivision includes four infractions
for first-time acts of 1) assisting another in accessing a
computer to violate computer use laws, 2) the use of a
computer without permission, 3) the introduction of a
contaminant into a computer and, 4) the use of an Internet
domain name to send harmful e-mail, where these acts do not
cause injury to the computer system. Violations that
result in injury or second violations are misdemeanors and
felonies. (Injury is widely defined in section 502,
subdivision (b)(8) as alteration, deletion, or destruction
of a computer, computer program or data.) The fine for
these infractions is a fine of no more than $250.
Forfeiture effectively acts as a substantial increase in
the fine, perhaps more than 10 times the fine.
DOES CURRENT LAW ADEQUATELY ALLOW FORFEITURE OF COMPUTERS
USED TO COMMIT CRIMES?
IF THE CURRENT LAW IS AMBIGUOUS IS USING THE TERM
"KNOWINGLY ACCESSES" A COMPUTER TO DECEIVE DEFRAUD OR
WRONGFULLY OBTAIN PROPERTY OR DATA, COULD THE AMBIGUITY BE
CURED BY AMENDING THE PHRASE TO READ, "KNOWINGLY ACCESSES
OR USES" A COMPUTER?
SHOULD EXPANSION OF COMPUTER FORFEITURE BE LIMITED TO
FELONIES, AND IF NOT LIMITED TO FELONIES, SHOULD
INFRACTIONS BE EXCLUDED FROM FORFEITURE?
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4. Effectiveness of Forfeiture to Eliminate or Reduce
Computer Crime
Computer equipment is virtually omnipresent in California.
Information and methods for computer fraud may be easily
downloaded from the Internet. Forfeiture of computer
equipment will likely only inconvenience those who are
determined to commit computer crimes, particularly in view
of the sponsor's statement that computer criminals are
notorious recidivists. Computer forfeiture provisions
likely are more akin to mandatory fines, as the perpetrator
loses the value of his or her equipment and must thereafter
purchase new equipment.
Further, as computer crimes do not involve violence,
defendants are likely to receive probation. Conditions of
probation could, and would, almost certainly include
limitations on a defendant/probationer's use of computers.
A probationer could likely be required to surrender his or
her computer for the duration of probation, or even be
required to sell the computer to pay restitution.
IS FORFEITURE EFFECTIVE IN PREVENTING COMPUTER CRIME?
5. Summary of the Proposed, Expanded Forfeiture Provisions
-Procedures and Standards
The existing forfeiture provisions for computers and
telephone equipment extends only to telecommunications
equipment, including cellular phone cloning equipment.
This bill would extend forfeiture provisions, including the
current court procedures and standards of proof, to
virtually any computers used to commit crimes.
a) Conviction is Required The procedures in the current
forfeiture telecommunication provisions require a
conviction and sentence before forfeiture can be
requested by the prosecutor.
b) Burden of Proof is Preponderance of the Evidence The
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prosecutor has the burden of establishing, by a
preponderance of the evidence, that the computer or
phone equipment was used in the underlying offense.
c) Notice to Innocent Third Parties There are provisions
for notifying parties who have an ownership interest in
the property and for their response. Where a minor
illegally uses a computer that is owned by his or her
parents, the property need not be forfeited if the
parent, in a signed statement filed 10 days before the
forfeiture hearing, states that the minor shall not
have access to the computer for 2 years. However, if
the minor is thereafter "convicted" of a
forfeiture-eligible computer crime within two years of
another such offense, the equipment must be forfeited.
Under the terms of this bill, the computer need not be
forfeited if the parents/guardian make full restitution
to the victim and the equipment is located in the
primary residence of the family.
d) Disposition and Sale of Forfeited Property The
property or the proceeds from the sale of the property
go first to any interest-holder, then to the victim in
full or partial restitution for injury, victim
expenditures, or compensatory damages. If any money
remains, the court has discretion to award it to the
prosecutor, the public entity for whom the prosecutor
represents, the public entity whose officers or
employees conducted the investigation resulting in
forfeiture, other state and local public entities,
including school districts, or to nonprofit charitable
organizations.
6. Use of Term "Conviction" and Sentence in the Bill and in
Existing Law for Crimes Committed by Minors
Minors, unless found not fit to be treated as juveniles,
are not convicted of crimes, but rather are adjudicated as
wards of the juvenile court. (Welf. & Inst. Code 602 et
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seq.) The bill and current law states that a "sentencing
court" includes a juvenile court that finds a minor to be a
ward (within the jurisdiction of the court). However,
other provisions in the forfeiture law and this bill are
not so defined.
The law provides: "If a minor is convicted of a violation
[of forfeiture eligible offenses] within two years after
the date on which the minor is sentenced, and the violation
involves a computer or telecommunications device . . . the
property . . . shall be subject to forfeiture despite" the
provisions allowing parents to keep the equipment if the
minor shall not use it. (Pen. Code 501.01.)
This provision is confusing and inconsistent with other
laws. Minors are not convicted of crimes, nor are they
sentenced for crimes. The language can easily be
interpreted to apply only to an adult who commits a
computer crime (with his or her parents' computer) after
having committed such an offense as a minor. This is not
likely the intent of this law. This language is in a
subdivision that, according to the opening paragraph,
applies to a forfeiture "defendant [who] was a minor at the
time of the offense." If this subdivision applies only to
offenses committed by minors, adult criminal law terms
should not be used.
SHOULD THE FORFEITURE PROVISIONS IN THIS BILL AND CURRENT
LAW RELATED TO MINORS BE CLARIFIED?
7. Arguments in Support and Opposition
The American Electronics Association argues in support:
High tech is the largest manufacturing industry in
California . . . AB 451 will update California law
relative to counterfeiting money, corporate seals,
drivers' licenses and other identification cards.
The provisions of AB 451 clarify that computer
systems are covered by the general counterfeiting
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statutes and the application of forfeiture statutes
top computer equipment and computer networks used to
counterfeit the items specified above. This will
assure that when a crime is committed using a
computer, the implement of the crime does not have
to be returned to the criminal.
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Further, AB 451 adds a definition of "scope of
employment" to Penal Code section 502. This will
assure that an employee who damages an employer's
computer system cannot later claim that the act was
within the scope of employment, and thereby avoid
prosecution.
The California Attorneys for Criminal Justice argue in
opposition:
The forfeiture provisions in this bill would result
in a governmental taking of property that is not
justified by the goal of preventing future crime.
There is nothing inherently dangerous or
illegitimate about computers. Computers may be used
for illegitimate purposes or for many legitimate,
productive ones. Taking someone's computer because
they once used it for an illegitimate purpose might
simply prevent them from running their legitimate
business. Unlike the days when counterfeiters used
engraved plates that had no legitimate purpose and
could not be easily replaced, computers are not hard
to come by and confiscating them is simply adding
another financial penalty to the already existing
penalties for the offense.
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