BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 1411 (Simitian)
          As Amended March 25, 2010
          Hearing Date: April 20, 2010
          Fiscal: Yes
          Urgency: No
          KB:jd
                    

                                        SUBJECT
                                           
                               Impersonation: Internet

                                     DESCRIPTION  

          This bill would create a new misdemeanor for when a person  
          knowingly and without consent credibly impersonates another  
          person on the Internet, or other electronic means in order to  
          harm, intimidate, threaten, or defraud another person.  This  
          bill would also provide that an aggrieved party may bring a  
          civil action against the violator for compensatory damages and  
          injunctive relief or equitable relief.  

          (This analysis reflects author's amendments to be offered in  
          committee)

                                      BACKGROUND  

          In the recent case of United States v. Drew (2009) 259 F.R.D.  
          449, the defendant was the mother of a 13-year-old girl in  
          Missouri.  Drew created a MySpace profile in which she pretended  
          to be a teenage boy.  In the persona of this character, the  
          defendant initially flirted with Megan, a classmate of Drew's  
          daughter, Sarah.  Eventually, the defendant sent an e-mail  
          telling Megan that the world would be a better place without  
          her, and Megan subsequently committed suicide.  

          The prosecution was based on the defendant's alleged violation  
          of the MySpace Terms of Service Agreement as a violation of  
          federal law on computer services.  The indictment specifically  
          alleged that Drew conspired with others to intentionally inflict  
          emotional distress on Megan.  In dismissing the case, the court  
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          noted that the terms of service are so expansive and elaborate,  
          and that violations are very likely to occur frequently.  (For  
          example, urging friends to buy Girl Scout cookies from one's  
          daughter would violate prohibitions on advertising of products).  
           As such, prosecutions could be brought arbitrarily, without any  
          real notice to the user, and in a very broad manner.  Further,  
          the court repeatedly noted that notions of harm and deception in  
          electronic communications are inherently vague.  
          This bill is intended to close perceived statutory loopholes in  
          current law by specifically criminalizing the false  
          impersonation of a person through electronic means and providing  
          specific remedies for those who are victimized.

          This bill was approved by the Senate Public Safety Committee on  
          April 13, 2010 by a vote of 7-0.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that any person who falsely personates  
          another person is guilty of an alternate felony-misdemeanor.   
          False personation involves intentionally assuming the identity  
          of another person where it is likely that the person whose  
          identity was assumed could become liable to criminal prosecution  
          or a lawsuit, or be subject to a debt or penalty.  The crime is  
          also committed where the defendant intentionally assumed the  
          identity of another person under circumstances where a benefit  
          "might accrue" to the defendant or any other person.  (Pen. Code  
          Sec. 529.)

           Existing law  provides that one also commits false personation  
          where he or she assumes the identity of another person to 1)  
          become a bail or surety for any party, or 2) verify, publish,  
          acknowledge, or prove any written instrument, with the intent  
          that the writing be recorded, delivered, or used as true.  (Pen.  
          Code Sec. 529.)

           Existing law  provides that it is an alternate felony-misdemeanor  
          for a person to willfully obtain the personal identifying  
          information, as defined, of another person and to use such  
          information to obtain, or attempt to obtain, credit, goods, or  
          services in the name of the other person without consent.  (Pen.  
          Code Sec. 530.5(a).)

           Existing law  , the California Political Cyberfraud Abatement Act,  
          provides that it is unlawful for a person, with intent to  
          mislead, deceive, or defraud, to commit an act of political  
                                                                      



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          cyberfraud.  "Political cyberfraud" is defined as an act  
          concerning a political Web site of a statewide ballot measure  
          that is committed with intent to do one of the following:  (1)  
          deny a person access to a political Web site; (2) deny a person  
          the opportunity to register a domain name for a  political Web  
          site; or (3) cause a person reasonably to believe that a  
          political Web site has been posted by a person other than the  
          person who posted the Web site.  (Elec. Code Sec. 18320 et seq.)

           Existing federal law  , the CAN-SPAM Act, preempts state law on  
          unsolicited e-mail transmissions, except for cases that involve  
          fraud or misleading messages.  (Public Law 108-187.)  

           Existing state law  (Bus. & Prof. Code Sec. 17529 et seq.)  
          defines what constitutes an illegal commercial e-mail  
          advertisement sent from or to California and provides specified  
          remedies.


           Existing law  provides that violation of the CAN-SPAM act is a  
          misdemeanor.  (Bus. & Prof. Code Sec.17529.5.)

           Existing law  , the Anti-Phishing Act of 2005, makes it unlawful  
          for any person, by means of a Web page, electronic mail message,  
          or otherwise through use of the Internet, to solicit, request,  
          or take any action to induce another person to provide  
          identifying information by representing itself to be a business  
          without the authority or approval of the business.  (Bus. &  
          Prof. Code Sec. 22948.2.)  Existing law further provides that  
          specified persons who are adversely affected by a violation of  
          the Anti-Phishing law may bring an action for damages against  
          the violator.  (Bus. & Prof. Code Sec. 22948.3, subd.  (a)(2).)   
          Existing law also provides that the Attorney General or a  
          district attorney may bring an action for civil penalties and  
          injunctive relief against a person who violates the  
          anti-phishing law.  (Bus. & Prof. Code Sec. 22948.3, subd. (b).)  


           This bill  would create a new misdemeanor for when a person  
          knowingly and without consent credibly impersonates another  
          person on the Internet, or other electronic means in order to  
          harm, intimidate, threaten, or defraud another person.  

           This bill  would define "electronic means" to include opening an  
          e-mail account or an account or a profile on a social networking  
          Internet Web site in another person's name.
                                                                      



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           This bill  would provide that an impersonation is credible where  
          another person would reasonably believe, or did reasonably  
          believe, that the defendant was or is the person who was  
          impersonated.

           This bill  would provide that a violation of this bill is  
          punishable by a fine not exceeding $10,000, or by imprisonment  
          in a county jail not exceeding one year, or by both that fine  
          and imprisonment.

           This bill  would provide that in addition to any other civil  
          remedy available, an aggrieved party who suffers damage or loss  
          by reason of a violation of this bill may bring a civil action  
          against the violator for compensatory damages and injunctive  
          relief or other equitable relief.

                                        COMMENT
           
              1.   Stated need for the bill
           
          The author states:

            Existing law addressing false impersonation was written in  
            1872 without the modern technologies of today in mind.  SB  
            1411 would expand upon existing statute by making it a crime  
            to falsely impersonate another person through or on an  
            Internet Web site or by other electronic means.  

            As our reliance on the Internet to rapidly access, collect and  
            disseminate information increases, many opportunities for  
            abuse have and will present themselves.  The victims of such  
            harassment and defamation as a result of false impersonation  
            perpetrated through the Internet are typically left without  
            adequate legal protection to stop this abuse.  SB 1411 will  
            rectify this problem by expanding the current false  
            impersonation statute to include impersonation done on an  
            Internet Web site or through other electronic means such as  
            email, Facebook, Twitter, and other social media websites.

              2.   Amendments taken in Senate Public Safety address  
               concerns

           As currently in print, this bill raised numerous concerns with  
          respect to whether it comported with constitutional standards  
          controlling for vagueness and overbreadth in statutes that  
                                                                      



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          criminalize conduct.  In particular, the bill would have  
          established "bad faith" as an element of the crime for false  
          impersonation.  As detailed in the Senate Public Safety  
          Committee's analysis, bad faith has generally been used in the  
          civil context, such as those arising under laws prohibiting  
          unfair business practices.  Bad faith would be difficult to  
          prove in a criminal prosecution, and would likewise be difficult  
          to incorporate into jury instructions.  Accordingly, the author  
          accepted amendments to remove "bad faith" from the bill, and  
          provide that the crime is committed when a person falsely  
          impersonates another person in order to harm, intimidate,  
          threaten, or defraud another person.  The author also accepted  
          amendments to provide that the impersonation actually be  
          credible.

          In addition, concerns were previously expressed that this bill  
          would inhibit law enforcement from impersonating a fictitious  
          person during sting operations utilized to capture criminals.   
          Accordingly, the author accepted amendments to provide that a  
          person is guilty of false impersonation if they credibly  
          impersonate another actual person.  This is consistent with  
          existing false impersonation statutes.  

              3.   Bill would create a civil action for damages
           
          This bill would authorize an aggrieved party who suffers damage  
          or loss due to a violation of the bill's provisions to bring a  
          civil action against the violator for compensatory damages and  
          injunctive relief or other equitable relief pursuant to Penal  
          Code Section 502, which pertains to computer crimes.  The  
          injured party would be able to recover attorney's fees, and the  
          court would be authorized to award punitive damages when it is  
          established that the defendant is guilty of oppression, fraud,  
          or malice, as defined in Civil Code Section 3294.  The statute  
          of limitations for the civil action would have to be initiated  
          within three years of the date of the act complained of, or the  
          date of the discovery of the damage, whichever is later.  

          In order to clarify that the actual victim of the false  
          impersonation would be the person authorized to bring the civil  
          action, this Committee may wish to consider whether this bill  
          should be amended to replaced the term "aggrieved party" with  
          "victim."
             Suggested amendment  :

            In subdivision (e), strike "an aggrieved party" and insert "a  
                                                                      



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          victim."


           Support  :  None Known

           Opposition  :  None Known (as proposed to be amended)

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation :  None Known

           Prior Legislation  :

          SB 1319 (Burton, Chapter 218, Statutes of 2000) provided that it  
          is an unfair business practice to register, traffic in, or use a  
          domain name that is identical or confusingly similar to the  
          personal name of another living person or deceased personality,  
          with bad faith intent and without regard to the goods or  
          services of the parties. 

          SB 412 (Vasconcellos, Chapter 927, Statutes of 2001) prohibited  
          a person, with intent to mislead, deceive, or defraud, from  
          committing an act of political cyberfraud.

          SB 277 (Dutra, Chapter 277, Statutes of 2003) allowed a court to  
          consider an individual's intent to mislead, deceive, or defraud  
          voters in determining whether the individual engaged in the bad  
          faith registration of a domain name on the internet.

           Prior Vote  :  Senate Public Safety Committee (Ayes 7, Noes 0)

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