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, 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 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, 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)
"Data"
means a representation of information, knowledge,
facts, concepts, computer software, 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.
(7)
"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.
(8)
"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.
(9)
"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.
(10)
"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.
(11)
"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.
(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
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.
(d) (1) Any person who
violates any of the
provisions of paragraph
(1), (2), (4), or (5) of subdivision (c) is
punishable 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.
(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) or (7) 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) 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 one
thousand dollars.
(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, as defined in paragraph (8) of
subdivision (b), to
the
employer or another, or provided that the value
of supplies
or
computer services, as defined in paragraph (4)
of
subdivision (b),
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.
502.01. (a)
As used
in this section:
(1)
"Property
subject to forfeiture" means any property of the
defendant that is illegal telecommunications
equipment as
defined in
subdivision (g) of Section 502.8, or a
computer, computer
system, or
computer network, and any software or data
residing thereon,
if the
telecommunications device, computer, computer
system, or
computer
network was used in committing a violation of,
or conspiracy
to
commit a violation of, subdivision (b) of
Section 272,
Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
311.10, 311.11,
422, 470,
470a, 472, 475, 476, 480, 483.5, 484g, or
subdivision (a),
(b), or
(d) of Section 484e, subdivision (a) of Section
484f,
subdivision (b)
or (c) of Section 484i, subdivision (c) of
Section 502, or
Section
502.7, 502.8, 529, 529a, or 530.5, 537e, 593d,
593e, or
646.9, or was
used as a repository for the storage of
software or data
obtained in
violation of those provisions. Forfeiture shall
not be
available for
any property used solely in the commission of
an infraction.
If the
defendant is a minor, it also includes property
of the
parent or
guardian of the defendant.
(2)
"Sentencing
court" means the court sentencing a person found
guilty of violating or conspiring to commit a
violation of
subdivision (b) of Section 272, Section 288,
288.2, 311.1,
311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470,
470a, 472,
475, 476,
480, 483.5, 484g, or subdivision (a), (b), or
(d) of Section
484e,
subdivision (d) of Section 484e, subdivision
(a) of Section
484f,
subdivision (b) or (c) of Section 484i,
subdivision (c) of
Section
502, or Section 502.7, 502.8, 529, 529a, 530.5,
537e, 593d,
593e, or
646.9, or, in the case of a minor, found to be
a person
described in
Section 602 of the Welfare and Institutions
Code because of
a
violation of those provisions, the juvenile
court.
(3)
"Interest"
means any property interest in the property subject
to forfeiture.
(4)
"Security
interest" means an interest that is a lien,
mortgage, security interest, or interest under
a conditional
sales
contract.
(5)
"Value"
has the following meanings:
(A)
When
counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those
items
shall be equivalent
to the retail price or fair market price of the
true items
that are
counterfeited.
(B)
When
counterfeited but unassembled components of computer
software packages are recovered, including, but
not limited
to,
counterfeited computer diskettes, instruction
manuals, or
licensing
envelopes, the "value" of those components of
computer
software
packages shall be equivalent to the retail
price or fair
market price
of the number of completed computer software
packages that
could
have been made from those components.
(b)
The sentencing
court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or
by agreement
of all
parties, at the time of sentencing, conduct a
hearing to
determine
whether any property or property interest is
subject to
forfeiture
under this section. At the forfeiture hearing,
the prosecuting
attorney shall have the burden of establishing,
by a
preponderance of
the evidence, that the property or property
interests are
subject to
forfeiture. The prosecuting attorney may retain
seized
property that
may be subject to forfeiture until the
sentencing hearing.
(c)
Prior to the
commencement of a forfeiture proceeding, the law
enforcement agency seizing the property subject
to
forfeiture shall
make an investigation as to any person other
than the
defendant who
may have an interest in it. At least 30 days
before the
hearing to
determine whether the property should be
forfeited, the
prosecuting
agency shall send notice of the hearing to any
person who
may have an
interest in the property that arose before the
seizure.
A
person claiming
an interest in the property shall file a motion
for the redemption of that interest at least 10
days before
the
hearing on forfeiture, and shall send a copy of
the motion
to the
prosecuting agency and to the probation
department.
If
a motion to
redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all
persons who
possess valid
interests in the property. No person shall hold
a valid
interest in
the property if, by a preponderance of the
evidence, the
prosecuting
agency shows that the person knew or should
have known that
the
property was being used in violation of, or
conspiracy to
commit a
violation of, subdivision (b) of Section 272,
Section 288,
288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10,
311.11, 470,
470a, 472,
475, 476, 480, 483.5, 484g, or subdivision (a),
(b), or (d)
of
Section 484e, subdivision (a) of Section 484f,
subdivision
(b) or (c)
of Section 484i, subdivision (c) of Section
502, or Section
502.7,
502.8, 529, 529a, 530.5, 537e, 593d, 593e, or
646.9, and
that the
person did not take reasonable steps to prevent
that use, or
if the
interest is a security interest, the person
knew or should
have known
at the time that the security interest was
created that the
property
would be used for a violation.
(d)
If the
sentencing court finds that a person holds a valid
interest in the property, the following
provisions shall
apply:
(1)
The court shall
determine the value of the property.
(2)
The court shall
determine the value of each valid interest in
the property.
(3)
If the value of
the property is greater than the value of the
interest, the holder of the interest shall be
entitled to
ownership
of the property upon paying the court the
difference between
the
value of the property and the value of the
valid interest.
If
the holder of
the interest declines to pay the amount
determined under paragraph (2), the court may
order the
property sold
and designate the prosecutor or any other
agency to sell the
property. The designated agency shall be
entitled to seize
the
property and the holder of the interest shall
forward any
documentation underlying the interest,
including any
ownership
certificates for that property, to the
designated agency.
The
designated agency shall sell the property and
pay the owner
of the
interest the proceeds, up to the value of that
interest.
(4)
If the value of
the property is less than the value of the
interest, the designated agency shall sell the
property and
pay the
owner of the interest the proceeds, up to the
value of that
interest.
(e)
If the
defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to
forfeiture
that is the
property of the parent or guardian of the
minor.
(1)
The prosecuting
agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before
the date set
for the
hearing.
(2)
The computer or
telecommunications device shall not be subject
to forfeiture if the parent or guardian files a
signed
statement
with the court at least 10 days before the date
set for the
hearing
that the minor shall not have access to any
computer or
telecommunications device owned by the parent
or guardian
for two
years after the date on which the minor is
sentenced.
(3)
If the minor is
convicted of a violation of Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
311.10, 311.11,
470, 470a,
472, 476, 480, or subdivision (b) of Section
484e,
subdivision (d) of
Section 484e, subdivision (a) of Section 484f,
subdivision
(b) of
Section 484i, subdivision (c) of Section 502,
or Section
502.7,
502.8, 529, 529a, or 530.5, within two years
after the date
on which
the minor is sentenced, and the violation
involves a
computer or
telecommunications device owned by the parent
or guardian,
the
original property subject to forfeiture, and
the property
involved in
the new offense, shall be subject to forfeiture
notwithstanding
paragraph (2).
(4)
Notwithstanding
paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent
or guardian
makes full
restitution to the victim of a crime enumerated
in this
chapter in
an amount or manner determined by the court,
the forfeiture
provisions of this chapter do not apply to the
property of
that
parent or guardian if the property was located
in the
family's
primary residence during the commission of the
crime.
(f)
Notwithstanding
any other provision of this chapter, the court
may exercise its discretion to deny forfeiture
where the
court finds
that the convicted defendant, or minor
adjudicated to come
within
the jurisdiction of the juvenile court, is not
likely to use
the
property otherwise subject to forfeiture for
future illegal
acts.
(g)
If the
defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be
distributed
as
follows:
(1)
First, to the
victim, if the victim elects to take the
property as full or partial restitution for
injury, victim
expenditures, or compensatory damages, as
defined in paragraph
(1) of
subdivision (e) of Section 502. If the victim
elects to
receive the
property under this paragraph, the value of the
property
shall be
determined by the court and that amount shall
be credited
against the
restitution owed by the defendant. The victim
shall not be
penalized
for electing not to accept the forfeited
property in lieu of
full or
partial restitution.
(2)
Second, at the
discretion of the court, to one or more of the
following agencies or entities:
(A)
The prosecuting
agency.
(B) The public entity
of which the
prosecuting agency is a part.
(C)
The public
entity whose officers or employees conducted the
investigation resulting in forfeiture.
(D)
Other state and
local public entities, including school
districts.
(E)
Nonprofit
charitable organizations.
(h)
If the property
is to be sold, the court may designate the
prosecuting agency or any other agency to sell
the property
at
auction. The proceeds of the sale shall be
distributed by
the court
as follows:
(1)
To the bona
fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the
property up to
the
amount of his or her interest in the property,
if the court
orders a
distribution to that person.
(2)
The balance, if
any, to be retained by the court, subject to
the provisions for distribution under
subdivision (g).