BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1411
                                                                  Page 1

          Date of Hearing:   June 22, 2010
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 1411 (Simitian) - As Amended:  May 11, 2010


           SUMMARY  :   Creates a misdemeanor punishable by up to one year in  
          the county jail, a fine of not more than $1,000 or by  
          imprisonment and fine for any person who knowingly and without  
          consent credibly impersonates another actual person through or  
          on an Internet Web site or by other electronic means for  
          purposes of harming, intimidating, threatening or defrauding  
          another person.  Specifically,  this bill  :   

          1)States than an impersonation is credible if another person  
            would reasonably believe, or did reasonably believe, that the  
            defendant was or is the person who was impersonated and  
            defines "electronic means" as opening an e-mail account or an  
            account or profile on a social networking Internet Web site in  
            another person's name.

          2)Provides that in addition to any other civil remedy available,  
            a person who suffers damage or loss by reason of  
            impersonation, as specified, may bring a civil action against  
            the violator for compensatory damages and injunctive relief or  
            other equitable relief pursuant to provisions of law related  
            to remedies for unlawful computer or computer system access,  
            as specified. 

          3)Provides that this penalty shall not preclude prosecution  
            under any other law. 

           EXISTING LAW  :

          1)Provides that every person who falsely personates another in  
            either his or her private or official capacity, and in such  
            assumed character either:

             a)   Becomes bail or surety for any party in any proceeding  
               whatever, before any court or officer authorized to take  
               such bail or surety;








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             b)   Verifies, publishes, acknowledges, or proves, in the  
               name of another person, any written instrument, with intent  
               that the same may be recorded, delivered, or used as true;  
               or,

             c)   Does any other act whereby, if done by the person  
               falsely personated, he might, in any event, become liable  
               to any suit or prosecution, or to pay any sum of money, or  
               to incur any charge, forfeiture, or penalty, or whereby any  
               benefit might accrue to the party personating, or to any  
               other person;

             d)   Is punishable by a fine not exceeding $10,000, or by  
               imprisonment in the state prison, or in a county jail not  
               exceeding one year, or by both such fine and imprisonment.   
               [Penal Code Section 529(1) to (3).]

          2)Provides that every person who willfully obtains personal  
            identifying information, as defined, of another person and  
            uses that information for any unlawful purpose, including to  
            obtain, or attempt to obtain, credit, goods, services, or  
            medical information in the name of the other person without  
            the consent of that person, is guilty of a public offense; and  
            upon conviction therefore, shall be punished either by  
            imprisonment in a county jail not to exceed one year, a fine  
            not to exceed $1,000, or both that imprisonment and fine; or  
            by imprisonment in the state prison, a fine not to exceed  
            $10,000, or both that imprisonment and fine.  [Penal Code  
            Section 530.5(a).]

          3)Defines "personal identifying information" as the name;  
            address; telephone number; health insurance identification  
            number; taxpayer identification number; school identification  
            number; state or federal driver's license number or  
            identification number; social security number; place of  
            employment; employee identification number; mother's maiden  
            name; demand deposit account number; savings account number;  
            checking account number; PIN (personal identification number)  
            or password; alien registration number; government passport  
            number; date of birth; unique biometric data including  
            fingerprint, facial scan identifiers, voice print, retina or  
            iris image, or other unique physical representation; unique  
            electronic data including identification number, address, or  
            routing code; telecommunication identifying information or  








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            access device; information contained in a birth or death  
            certificate; or credit card number of an individual person.   
            [Penal Code Section 530.5(b).]

          4)Provides that in any case in which a person willfully obtains  
            personal identifying information of another person, uses that  
            information to commit a crime in addition to a violation of  
            Penal Code Section 530.5(a), and is convicted of that crime,  
            the court records shall reflect that the person whose identity  
            was falsely used to commit the crime did not commit the crime.  
             [Penal Code Section 530.5(c).]

          5)Provides that every person who, with the intent to defraud,  
            acquires, transfers, or retains possession of the personal  
            identifying information, as defined in Penal Code 530.5(b), of  
            another person is guilty of a public offense; and upon  
            conviction therefore, shall be punished by imprisonment in a  
            county jail not to exceed one year; a fine not to exceed one  
            $1,000; or by both that imprisonment and fine.  [Penal Code  
            Section 530.5(d).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Someone on  
            Twitter impersonated St. Louis Cardinals manager Tony LaRussa  
            and made him appear to mock the deaths of two Cardinal  
            players.  A sports reporter in Texas pretended to be two  
            locally prominent college football players and sent obscene  
            messages to underage girls.  A 40-year-old woman harassed the  
            17-year-old daughter of her ex-husband's girlfriend by posting  
            the daughter's photo, workplace, e-mail and cell phone on a  
            Craigslist forum where people go to pursue sexual encounters.   
            The 17-year-old subsequently received lewd calls, e-mails and  
            even photos soliciting sexual acts, causing much emotional  
            distress to the young girl.  (This occurred in St. Peters,  
            Missouri after the Lori Drew case and after Missouri had  
            enacted laws against impersonation done through the Internet).  
             A mother creates a Facebook page claiming to be a young man  
            and develops a 'cyber' relationship with one of her daughter's  
            peers, a 13-year-old girl who at the time was engaged in a  
            quarrel with her daughter.  After weeks of friendly messaging  
            back and forth the mother, in the guise of this young man,  
            tells the girl that 'the world would be a better place without  








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            you.'  The 13-year-old girl then committed suicide by hanging  
            herself.  (This is the famous Lori Drew case, also occurring  
            in Missouri.  Our bill makes it clear that one has to  
            impersonate an actual person to be a crime, so it wouldn't  
            have applied in this instance.  However, a similar scenario  
            can easily be imagined where an actual person is impersonated,  
            resulting in the same tragic ending.)

          "These are real crimes that have to be addressed, and our  
            current statutes do not do so in a thorough enough manner.  It  
            is imperative that we specifically address false impersonation  
            done on an Internet Web site or through other electronic means  
            in order to prevent instances like these from repeating  
            themselves.

          "SB 1411 will address these issues by making it unlawful to  
            knowingly and without consent credibly impersonate another  
            person through or on an Internet Web site or by other  
            electronic means with the intent to harm, intimidate, threaten  
            or defraud another person.  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."

           2)Existing law Related to Harassment  :  Existing law punishes any  
            person who "annoys or harasses" another by means of electronic  
            communication.  Penal Code Section 653m states "Every person  
            who, with intent to annoy, telephones or makes contact by  
            means of an electronic communication device with another and  
            addresses to or about the other person any obscene language or  
            addresses to the other person any threat to inflict injury to  
            the person or property of the person addressed or any member  
            of his or her family, is guilty of a misdemeanor."  [Penal  
            Code Section 653m(a).]  This statute requires direct contact  
            with the victim.  Existing law also punishes use of a Web site  
            or electronic communication device with the intent to threaten  
            or intimidate another person.  Penal Code Section 653.2  
            states:

          "Every person who, with intent to place another person in  
            reasonable fear for his or her safety, or the safety of the  
            other person's immediate family, by means of an electronic  
            communication device, and without consent of the other person,  
            and for the purpose of imminently causing that other person  
            unwanted physical contact, injury, or harassment, by a third  








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            party, electronically distributes, publishes, e-mails,  
            hyperlinks, or makes available for downloading, personal  
            identifying information, including, but not limited to, a  
            digital image of another person, or an electronic message of a  
            harassing nature about another person, which would be likely  
            to incite or produce that unlawful action, is guilty of a  
            misdemeanor." [Penal Code Section 653.2(a).]  Penal Code  
            Section 653.2 is aimed at punishing harassment directed at a  
            third party but with the specific intent of causing harm to  
            the victim.  

          This bill creates a one-year misdemeanor for any person to false  
            impersonate another on the Internet with the intent to harm or  
            otherwise intimidate the person falsely impersonated.  One  
            example might be the case of a Missouri mother who posed as  
            another high school student for the purpose causing profound  
            emotional stress in the victim, who later committed suicide.   
            [Los Angeles Times, "Prosecutors Seek Three Year Prison Term  
            for Mother in MySpace Case",  
            .]  


          Finally, existing law criminalizes false impersonation where any  
            person who falsely impersonates another and causes liability,  
            civil or criminal, is guilty of an alternate  
            misdemeanor/felony.  [Penal Code Section 529(1) to (3); People  
            vs. Cole (1994) 23 Cal.App. 4th 1672.]

           3)First Amendment and a Chilling Effect on Free Speech  :  The  
            First Amendment to the United States Constitution guarantees  
            to all citizens the right to freedom of speech and  
            association.  The pertinent Clause of the First Amendment,  
            applied to the States through the Fourteenth amendment.   
            [Thornhill v. Alabama, 310 U.S. 88, 95 (1940) provides that  
            "Congress shall make no law?abridging the freedom of speech .  
            . . . "  [United States Constitution. Amend. I).]  In Reno v.  
            ACLU (1997) 521 U.S. 844, the Supreme Court stated that "The  
            Internet is an international network of interconnected  
            computers . . . enab[ling] tens of millions of people to  
            communicate with one another and to access vast amounts of  
            information from around the world.  The Internet is a unique  
            and wholly new medium of worldwide human communication."  (Id  
            at 850.)  A chilling effect on free speech may occur where a  
            speaker is unclear if he or she is acting unlawfully and, as  
            such, simply refrains from speaking.  Statutes must precisely  








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            define the proscribed speech so as to give clear guidance as  
            to what is permissible and what is not. 

          "Anyone with access to the Internet may take advantage of a wide  
            variety of communication and information retrieval methods.   
            These methods are constantly evolving and difficult to  
            categorize precisely. [A]ll of these methods can be used to  
            transmit text; most can transmit sound, pictures and moving  
            video images.  Taken together, these tools constitute a unique  
            medium - known to its members as cyberspace - located in no  
            particular geographical location but available to anyone,  
            anywhere in the world, with access to the Internet."

          Following its expansive discussion of the many benefits of the  
            Internet, the Court turned its attention to First Amendment  
            issues, finding that the "CDA [Communications Decency Act] is  
            a content-based regulation of speech.  The vagueness of such a  
            regulation raises special First Amendment concerns because of  
            its obvious chilling effect on free speech," citing Gentile v.  
            State Bar of Nevada (1991) 501 U.S. 1030, 1048-1051.  The  
            Court further stated that the CDA, as a criminal statute, "may  
            well cause speakers to remain silent rather than communicate  
            even arguably unlawful words, ideas, and images.  As a  
            practical matter, this increased deterrent effect, coupled  
            with the risk of discriminatory enforcement of vague  
            regulations, poses greater First Amendment concerns than those  
            implicated by the civil regulations (internal citation  
            omitted).  Given the vague contours of the statute, it  
            unquestionably silences some speakers whose messages would be  
            entitled to constitutional protection.  The CDA's burden on  
            protected speech cannot be justified if it could be avoided by  
            a more carefully drafted statute.  We are persuaded that the  
            CDA lacks the precision that the First Amendment requires when  
            a statute regulates the content of speech.  In order to deny  
            minors access to potentially harmful speech, the CDA  
            effectively suppresses a large amount of speech that adults  
            have a constitutional right to receive and to address to one  
            another.  That burden on adult speech is unacceptable if less  
            restrictive alternatives would be at least as effective in  
            achieving the legitimate purpose that the statute was enacted  
            to serve."  (Id. at 874.)  

           The Court concluded, "As a matter of constitutional tradition,  
            in the absence of evidence to the contrary, we presume that  
            governmental regulation of the content of speech is more  








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            likely to interfere with the free exchange of ideas than to  
            encourage it.  The interest in encouraging freedom of  
            expression in a democratic society outweighs any theoretical  
            but unproven benefit of censorship."  (Id at page 885.)

          In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002),  
            the Supreme Court further stated that "the mere tendency of  
            speech to encourage unlawful acts is not a sufficient reason  
            for banning it.  The government 'cannot constitutionally  
            premise legislation on the desirability of controlling a  
            person's private thoughts,' citing Stanley v. Georgia (1969)  
            394 U.S. 557, 566.  First amendment freedoms are most in  
            danger when the government seeks to control thought or to  
            justify its laws for that impermissible end.  The right to  
            think is the beginning of freedom, and speech must be  
            protected from the government because speech is the beginning  
            of thought."

          "[T]he government may not prohibit speech because it increases  
            the chances that an unlawful act will be committed at some  
            indefinite future time," Ashcroft v. The Free Speech  
            Coalition  ,  supra, at 253, citing Hess v. Indiana, 414 U.S.  
            105, 108 (1973).  "[T]he government has shown no more than a  
            remote connection between speech that might encourage thoughts  
            or impulses and any resulting child abuse.  Without a  
            significantly stronger, more direct connection, the Government  
            may not prohibit speech on the ground that it may encourage  
            pedophiles to engage in illegal conduct."  

          Defamation is a false, published statement that causes injury  
            and was generally thought to be outside the scope of First  
            Amendment protections.  [Civil Code Section 46; Beauharnais  
            vs. Illinois (1952) 343 U.S. 250.]  However, in the landmark  
            case of New York Times vs. Sullivan (1964) 376 U.S. 254, the  
            Court shifted course, finding some First Amendment protection  
            in speech otherwise considered unprotected.  "Libel can claim  
            no talismanic immunity from constitutional limitations.  It  
            must be measured by standards that satisfy the First  
            Amendment".  The Court went on to state that a public official  
            may not recover damages for defamation concerning his or her  
            official conduct unless the statement was made with "actual  
            malice", meaning knowledge that it was false or with reckless  
            disregard of the truth or falsity of the statement.  In the  
            case of Hustler Magazine vs. Falwell (1988) 485 U.S. 46,  
            Hustler Magazine parodied the Reverend Jerry Falwell by  








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            impersonating his likeness and insinuating he engaged in  
            sexual activity with his mother.  Falwell sued for defamation  
            but lost because the Supreme Court ruled the obvious parody  
            was not defamation.  [Hustler Magazine vs. Falwell (1988) 485  
            U.S. 46, 79.]  This bill also states that the impersonation  
            must be credible in order to be punished.  Hence, a parody is  
            not within the meaning of the proposed statute. 

           4)Arguments in Support  :  According to the  Privacy Rights  
            Clearinghouse  , "This bill would create a new misdemeanor for  
            when a person knowingly and without consent credibly  
            impersonates another actual 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.  

          "Existing law addressing false impersonation was written years  
            ago without the modern technologies of today in mind.  SB 1411  
            would expand upon existing statute by making it a crime to  
            falsely impersonate another actual person through or on an  
            Internet Web site or by other electronic means.  Current  
            technology provides many opportunities for abuse through false  
            impersonation.  Victims of Internet impersonation are  
            typically left without adequate legal protection to stop this  
            abuse.  SB 1411 will address this problem by expanding the  
            current false impersonation statute to include impersonation  
            done on an Internet website or through other electronic means,  
            including email, Facebook, Twitter, and other social media  
            websites.

          "This bill would also 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.  The  
            injured party would be able to recover attorney's fees, and  
            the court would be authorized to award punitive damages when  
            the defendant is guilty of oppression, fraud, or malice."

           5)Prior Legislation  :  

             a)   AB 225 (Beall), Chapter 480, Statutes of 2007, specifies  
               that every person who makes five or more contacts within a  
               24-hour period by telephone or by means of an electronic  








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               communication device is guilty of a one-year misdemeanor  
               punishable by a fine not exceeding $1,000; imprisonment in  
               a county jail for not more than one year; or by both fine  
               and imprisonment.

             b)   AB 919 (Houston), Chapter 583, Statutes of 2007, states  
               every person who uses an electronic communication device to  
               harass another through the actions of a third party, as  
               specified, is guilty of a misdemeanor.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Peace Officers' Association
          California State Sheriffs' Association
          Crime Victims United
          Los Angeles District Attorney's Office
          Privacy Rights Clearinghouse

           Opposition 
           
          None

          
          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744