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Inmate Who Stored Pornographic Images Was Wrongfully Denied Computer Access—C.A.
By a MetNews Staff Writer
The First District Court of Appeal has held that a prison inmate was wrongfully stripped of his clearance for computer access after it was found that he had more than 600 pornographic images on his electronic tablet, reasoning that a committee, in imposing the restriction, made reference to “computer fraud or abuse” which brings into play a Penal Code section, and that statute was not breached.
Although the inmate, Jose Oliveras, has since had his computer-access privileges restored, Div. Three said the matter is not moot because the discipline remains on Oliveras’s record entailing potential future consequences.
It is not in question that the storing of pornographic images violates California Code of Regulations Title 15, §3006(c) which provides: “Except as authorized by the institution head, inmates shall not possess or have under their control any matter which contains or concerns any of the following....Obscene material....”
For that violation, Oliveras received counseling “without reprimand.”
About eight month later, a committee decided that Oliveras could no longer be cleared for computer access. It said that it was acting pursuant to two regulations that “state that inmates who have a history of computer fraud or abuse, including documented institutional disciplinary action involving computer fraud or abuse, shall not be placed in any work assignment that provides access to a computer, or rehabilitative program which provides access to the internet.”
On Sept. 14, 2023, Oliveras filed a petition for a writ of habeas corpus. One week later, Div. Three issued an order requiring the parties to address various issues, among which was the relevance of Penal Code §502.
The justices noted that a department operations manual says:
“Inmates who have a history of computer fraud or abuse, as defined in Penal Code (PC), § 502, shall not be placed in any assignment that provides access to a computer.”
They queried:
“[D]id petitioner’s conduct constitute ‘computer fraud and abuse’?”
On Monday, it answered that question in the negative.
Controlling Data
Most of the provisions in §502 refer to unauthorized access to a computer; Oliveras did have permission to use the tablet. However, one provision renders it a crime to “wrongfully control…data.”
Justice Ioana Petrou wrote:
“Conceivably, Oliveras exerted ‘control’—a term not defined by section 502—over the pornography by mere possession. But non-injurious possession, without more, exceeds any reasonable interpretation of the statute.
“At the time the Legislature enacted Senate Bill No. 255 (S.B. 255), which repealed and rewrote section 502, the Legislature was focused on increased harm to businesses caused by computer crimes. An Assembly analysis of S.B. 255 highlighted concerns regarding the significant financial losses suffered by America’s companies ‘attributable to computer crime,’ and stated the bill ‘was developed by Los Angeles County’s Computer Crime Task Force to provide for increased penalties for computer ‘hackers’ and to provide standardized definitions of terms.’…Oliveras’s conduct does not fall within the scope of conduct the Legislature sought to address.”
Adding Data
The statute also declares it to be a violation where a person “[k]nowingly… adds…any data…which reside or exist…external to a computer….”
That section, according to a legislative analysis, covers “vandalism,” Petrou noted, saying:
“Given the above legislative history, we cannot reasonably conclude the Legislature intended an individual’s use of a personal computer to view images saved on a memory card to qualify as impermissibly “adding data”….Rather, the record expressly indicates the legislative focus was vandalism, e.g., adding malware to a computer. Oliveras’s conduct is more akin to an employee’s improper but non-injurious use of an employer’s computer, which the Legislature expressly excluded from liability under section 502.
She declared:
“The October 2022 revocation of petitioner’s computer clearance and removal from wait lists for programs or job assignments that would allow him computer access by the Unit Classification Committee is reversed and respondent is directed to remove any reference to this revocation from petitioner’s file.”
The case is In re Oliveras, 2024 S.O.S. 2388.
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