CALIFORNIA COMPUTER CRIME LAW AS OF JANUARY 2014

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).