BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 2 5 5 SB 255 (Cannella) As Amended May 7, 2013 Hearing date: June 4, 2013 Penal Code (Urgency) JM:mc ELECTRONIC COMMUNICATION DEVICES: PROHIBITED DISTRIBUTION OF PERSONAL INFORMATION HISTORY Source: Author Prior Legislation: AB 919 (Houston) - Ch. 584, Stats. 2008 Support: Crime Victims United of California; California State Sheriffs' Association Opposition:American Civil Liberties Union KEY ISSUE SHOULD THE ELECTRONIC DISTRIBUTION OF NUDE IMAGES AND IDENTIFYING INFORMATION ABOUT THE PERSON DEPICTED BE A MISDEMEANOR WHERE THE DISTRIBUTION IS DONE WITHOUT CONSENT AND WITH THE INTENT TO EMOTIONALLY DISTRESS OR HUMILATE? (More) SB 255 (Cannella) PageB PURPOSE The purpose of this bill is to provide that a person commits a misdemeanor where he or she electronically distributes nude images of and identifying information about another person, where the distribution is done without consent and with the intention to cause serious emotional distress or humiliation of the person depicted. Stalking, Credible Threats of Harm and Related Crimes Existing law defines the crime of "stalking" as repeatedly harassing or following another person in conjunction with the making of a credible threat against that person or his or her immediate family. Stalking is an alternate felony-misdemeanor punishable by up to one year in the county jail and/or a fine of up to $1000, or by imprisonment in state prison for 16 months, 2 or 3 years, and/or a fine of up to $10,000. (Pen. Code § 646.9.) Existing law provides that a person who has "suffered harassment" may seek a temporary restraining order and an injunction to prevent such harassment. "Harassment" is defined thus: "[U]nlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff." (Code. Civ. Proc. § 527.6.) Existing law includes the crime of making a credible threat of death or great bodily injury, which includes the following elements: The defendant made the threat orally, in writing or by means of an electronic communication device, with the intent that it be taken as a threat. The defendant appeared to have the means and intent to carry out the threat such that the victim was placed in sustained fear for his own safety or that (More) SB 255 (Cannella) PageC of his immediate family. This crime is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1000, or both, or by imprisonment in a state prison for 16 months, 2 years or 3 years and a fine of up to $10,000. (Pen. Code § 422.) Existing law provides that 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. The statute does not apply to communication made in good faith. (Pen. Code § 653m, subd. (a).) Existing law provides that every person who makes repeated telephone calls or makes repeated contacts by means of an electronic communication device with intent to annoy another person at his or her residence is guilty of a misdemeanor. The crime does not include an element that a conversation took place in the telephone call or electronic contact. The statute does not apply to communication made in good faith. (Pen. Code § 653m, subd. (b).) Existing law provides that every person who makes repeated telephone calls or makes repeated contact by means of an electronic communication device with the intent to annoy another person at his or her place of work is guilty of a misdemeanor punishable by a fine of not more than $1000, by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith. This subdivision applies only if one or both of the following circumstances exist: § There is a temporary restraining order, an injunction, or any other court order, or any combination of these court (More) SB 255 (Cannella) PageD orders in effect prohibiting the behavior described in this section. § The person makes repeated telephone calls or contact by means of an electronic communication device with the intent to annoy another person at his or her place of work, totaling more than 10 times in a 24-hour period, whether or not conversation ensues from the call or contact, and the calls or contacts are made to the workplace of an adult or emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the person has a child or has had, or is having, a dating or engagement relationship. (Pen. Code § 653m, subd. (c).) Existing law provides that a court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying, contacting, coming within a specified distance of, or disturbing the peace of the other party. Upon a showing of good cause, the order may cover another named family or household members. (Fam. Code § 6320.) Any willful violation of such an order is contempt of court, a misdemeanor, with a maximum jail term of one year, a fine of up to $1000, or both. (Pen. Code § 166, subd. (c).) Existing law provides that any person who willfully disobeys any court order is guilty of contempt of court, a misdemeanor, punishable by up to six months in the county jail, a fine of up to $1000, or both. (Pen. Code § 16, subd. (a)(4).) Existing law includes protection for providers, employees, volunteers and patients of a reproductive health facility, or persons residing such persons. These provisions included prohibitions on specified threats and related conduct. A person covered by this law can seek injunctive relief and money damages, as specified. (Gov. Code § 6218.) Existing law provide that 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 (More) SB 255 (Cannella) PageE electronic communication device without consent of the other person, and for the purpose of causing that other person unwanted physical contact, injury, or harassment, by a third 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, is guilty of a misdemeanor punishable by up to one year in the county jail, by a fine of not more than one thousand dollars ($1000), or by both that fine and imprisonment. (Pen. Code § 653.2, subd. (a).) Existing law provides that it is a misdemeanor for any person to intentionally harass a child because of the employment status of the child's parent or parents. The offense is punishable by a six month jail term, a $1000 fine, or both. A defendant must serve a jail term of at least five days for a second conviction, and at least 30 days for a third or subsequent conviction. (Pen. Code § 11414, subd. (a).) Existing law includes the following definitions: "Harasses" means "knowing and willful conduct directed at a specific child that seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The conduct must be such as would cause a reasonable child to suffer substantial emotional distress, and actually cause the victim to suffer that distress." A child, for purposes of this crime, is a person under the age of 16 years. (Pen. Code § 11414, subd. (a).) Identity Theft and Impersonation 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 (More) SB 255 (Cannella) PageF identity was assumed could become liable to prosecution, 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 § 529, 3.) 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 § 529, 2.) Existing law provides that it is an alternative felony-misdemeanor for a person to willfully obtain the personal identifying information 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. This alternate felony-misdemeanor is punishable by up to one year in the county jail, a fine of up to $1000, or both, or by imprisonment in state prison for 16 months, 2 or 3 years and a fine of up to $10,000. (Pen. Code § 530.5.) Existing law provides that every person who, with the intent to defraud, acquires, transfers, or retains possession of the personal identifying information, as defined, of another person is guilty of a public offense; and upon conviction of, shall be punished by imprisonment in a county jail not to exceed one year; a fine not to exceed $1000; or by both that imprisonment and fine. (Pen. Code § 530.5 (d).) Production, Distribution and Possession of Child Pornography Existing law provides that every person who sends, brings, possesses, prepares, publishes, produces, duplicates or prints any obscene matter depicting a person under the age of l8 years engaging in or simulating sexual conduct, with the intent to (More) SB 255 (Cannella) PageG distribute, exhibit, or exchange such material, is guilty of either a misdemeanor or a felony, punishable by imprisonment in the county jail up to one year or in the state prison for 16 months, 2 or 3 years and a fine not to exceed $10,000. (Pen. Code § 311.1.) Existing law specifies that every person who sends, brings, possesses, prepares, publishes, produces, duplicates or prints any obscene matter depicting a person under the age of 18 years engaging in or simulating sexual conduct for commercial purposes is guilty of a felony, punishable by imprisonment in the state prison for two, three, or six years and a fine up to $100,000. (Pen. Code § 311.2, subd. (b).) Existing law provides that any person who hires or uses a minor to assist in the preparation or distribution of obscene matter is guilty of a misdemeanor. If the person has a prior conviction, the crime is a felony. (Pen. Code § 311.4, subd. (a).) Existing law provides that any person who hires or uses a minor to assist in the possession, preparation or distribution of obscene matter for commercial purposes is guilty of a felony, punishable by imprisonment in the state prison for three, six, or eight years. (Pen. Code § 311.4, subd. (b).) New Misdemeanor for Electronic Distribution of Nude Images with the Intent to Humiliate or Cause Emotional Distress This bill defines a new misdemeanor with the following elements: The defendant electronically distributed nude images of another person, along with identifying information about the other person. The distribution was done without the consent of the person depicted. The defendant intended that the person depicted experience serious emotional distress or humiliation. This misdemeanor is punishable by imprisonment in a county jail for up to one year, a fine of up to $1,000, or (More) SB 255 (Cannella) PageH both. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, (More) SB 255 (Cannella) PageI continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for This Bill According to the author: (More) SB 255 (Cannella) PageJ "Cyber revenge" or "revenge porn" refers to the posting of illicit pictures of another person without his or her consent, often as retaliation following a bitter breakup between partners. Current law is silent as to the illegality of this disturbing practice. While the creation, possession, or distribution of sexually-charged images of a minor can be charged according to child pornography prohibitions, the same actions committed against victims over 18 years old do not constitute a crime under current statute. Victims of this cruel act are often so humiliated that they pose a threat to harming themselves, as evidenced by numerous examples of cyber revenge victims who have taken their own lives. Cyber revenge and its ugly consequences should not be tolerated. 2. Vagueness and Related Issues Specific Vagueness Issues as to the Terms of the Bill Both the United States and California Constitutions guarantee that no person shall be deprived of life, liberty, or property without due process of law. Due process requires "a reasonable degree of certainty in legislation, especially in the criminal law ?" (In re Newbern (1960) 53 Cal.2d 786, 792.) "[A] penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357.) This bill makes it a misdemeanor to, without consent of the person depicted, electronically distribute, publish or make available for downloading any nude images and personal identifying information of another persons with the intent to cause the person depicted "substantial emotional distress or humiliation." The bill does not define the term "nude." The (More) SB 255 (Cannella) PageK term appears to have no special meaning in the law, and thus the term would be given its ordinary meaning. The New Oxford American Dictionary (Oxford Univ. Press, 2005) defines nude as "wearing no clothes, naked." The bill can thus be interpreted as meaning that the crime has not been committed where the person depicted is wearing any item of clothing, even an item of clothing that would perhaps increase the humiliating nature of the image, such as a depiction of a man wearing an item of women's lingerie. The bill does not provide what would constitute "substantial emotional distress or humiliation." Further, the bill does not include an element that the person depicted would reasonably suffer emotional distress or humiliation because of the nature of the image. The crime is defined in terms of the intent of the defendant. As such, a person would appear to be guilty of the crime if he or she intended the person depicted to be emotionally distressed or humiliated, regardless of whether or not a reasonable person would be distressed or humiliated by the image. A person who posts a nude image with the intent to humiliate the subject of the image could be guilty of the crime even if the person depicted was pleased or gratified by the distribution of the image. Element that the Image be Accompanied by Identifying Information The requirement that the image be accompanied by "personal identifying information" about the person depicted also raises issues about how the bill would be applied. A defendant could post, send or make available an image of a readily identifiable person and not be guilty of the crime if no personal identifying information was included with the image. The defendant could send the image under circumstances where the person depicted is particularly likely to be identified and humiliated - such as sending nude images to the person's spouse, employer, parent or child. Nevertheless, the defendant could likely have a valid defense to the crime if the image was not accompanied by personal identifying information, such as a name and address, telephone number, driver's license number or other information defined as "personal identifying information" in Penal Code (More) SB 255 (Cannella) PageL Section 530.55, which is a section in the identity theft law. Application of the Bill to Non-Sexual Circumstances The context in which the bill arises indicates that the author is concerned about the use of sexual images to humiliate the person depicted. However, the bill could apply in other contexts, such as an intent to humiliate a person because he or she is obese, or whose appearance could otherwise be subject to ridicule. In sum, the terms of this bill present a number of issues as to how the bill would be applied and interpreted. It could be difficult for ordinary citizens to understand what the law prohibits or requires. DOES THIS BILL RAISE CONSTITUTIONAL ISSUES OF VAGUENESS? 3. First Amendment Issues This bill makes it a crime for a person to distribute the nude image of another person with the intent to cause substantial emotional distress or humiliation. As such, the bill criminalizes a form of expression, which is included within the definition of speech. (Texas v. Johnson (1989) 491 U.S. 397.) "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (Id, at p. 414.) Unless a particularly narrow exception applies, protection of expression under the First Amendment is not limited to certain subjects or ideas. A restriction on the "content" of expression, as distinguished from the time, place and manner of expressions is presumptively invalid. A content-based restriction on expressive conduct is subject to "strict scrutiny" and must promote a "compelling state interest" by the "least restrictive means" to achieve the compelling interest. (Sable Communications v. FCC (1989) 492 U.S. 115, 126.) (More) SB 255 (Cannella) PageM A similar bill to this bill was introduced in the Florida Legislature this year. The bill failed passage.<1> The staff analysis of the Florida bill stated: In Reno v. American Civil Liberties Union, the United States Supreme Court stated: "[T]he growth of the Internet has been and continues to be phenomenal. 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 likely to interfere with the free exchange of ideas than encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." The bill makes it a crime to knowingly transmit or post to a website or social networking service any photograph or video that depicts nudity of an individual which contains the personal identification information of that individual. To the extent that the bill regulates content of speech protected by the First Amendment, it could be challenged as being unconstitutional. A content-based restriction on expression will be struck down as invalid on its face if it prohibits clearly protected speech, in addition to conduct that may validly be prohibited. Such a law is said to be unconstitutionally "overbroad." (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of "depictions of animal cruelty," in order to prohibit fetishistic "crush videos" of the killing of animals for sexual gratification. Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting, --------------------------- <1> http://www.tallahassee.com/viewart/20130505/NEWS01/305050029/Bill s-failed-2013-Fla-Legislature. (More) SB 255 (Cannella) PageN arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id, at pp. 1588-1592.) Arguably, the crime defined by this bill includes conduct that is protected under the First Amendment or otherwise legal. The bill could apply to behavior that involves specified use of a photograph that the defendant legally possesses, including where the defendant photographed another person in a public place. For example, this bill could apply where the defendant took a photo of a person at a nude beach that is open to the public. The bill could apply in cases where the person depicted gave the defendant full consent to take and possess the photograph or other image, but then does not consent to distribution of the image. Depending on the context of the distribution, the defendant could be sued for libel if the image is accompanied by false information that the person depicted is, for example, available for sex with strangers. Courts have long stated that political speech and speech concerning public issues are entitled to great protection under the First Amendment. (Burson v. Freeman (1992) 504 U.S. 191, Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45.) Political speech can be harsh, and one could conclude that political speech may be intended to humiliate the target of the communication or expressive conduct. The Weiner incident is one example. Anthony Wiener posted a semi-nude picture of himself on his public Twitter account. Although he quickly removed the images, political activists captured the images and re-posted them. Other images Weiner had sent to a woman in Texas were reposted on the Internet. False identities were used by activists to target Weiner.<2> Weiner certainly did not authorize or consent to others, including political activist, reposting the images. Many of the person who captured and reposted the images of Weiner could be described as having an intent to humiliate Wiener and cause him emotional --------------------------- <2> http://www.nytimes.com/2011/06/18/nyregion/fake-identities-were-u sed-on-twitter-to-get-information-on-weiner.html?ref=anthonydwein er&_r=0. (More) SB 255 (Cannella) PageO distress. First Amendment issues often overlap vagueness issues. As concerns this bill, those issues perhaps arise most clearly as concerns the concept of the intent to cause substantial emotional distress. Criminal law includes crimes involving true threats of harm against another person. (See, Pen. Code § 422.) Civil law includes the tort (wrong against a private person or entity) of intentional infliction of emotional distress. Intentional infliction of emotional distress involves extreme and outrageous conduct by the defendant that causes the plaintiff severe or extreme emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) Nevertheless, even speech intended to create substantial emotional distress may be protected by the First Amendment, particularly where the subject of the speech concerns a public issue. Further, what constitutes a matter of public concern is not well defined. (Snyder v. Phelps (2011) 131 S. Ct. 1207, 1215-1216; Hustler Magazine v. Falwell (1988) 108 S. Ct. 876.) IS CONDUCT COVERED BY THIS BILL PROTECTED BY THE FIRST AMENDMENT? 4. Incident that Prompted Introduction of the Bill - Suicide of Girl who was Sexually Assaulted and Humiliated by Photos of the Incident - Perpetrators Committed Child Pornography and Sexual Assault Felonies There have been numerous publicized incidents of cyber revenge or humiliation that involved the posting of nude or sexually explicit photos, including a notorious rape case in Steubenville, Ohio. However, it appears that this bill was specifically prompted by an incident involving a 15-year-old girl name Audrie in Saratoga, California. Audrie became very intoxicated to the point of unconsciousness at a party. Three boys - Audrie's high school classmates - took off (More) some or much of her clothing, sexually assaulted her, wrote crude and demeaning phrases on her body and took at least one cell-phone photo of an intimate part of her body. She awoke in the morning to find her shorts pulled down and the crude drawings or words on her body. When the photo was shown to other students at school, Audrie became very distraught.<3> About a week later, Audrie hung herself. The boys involved in the incident have been charged in juvenile court with sexual battery and distribution of child pornography. <4> Sexual battery is an alternate felony-misdemeanor, with a felony imprisonment term of two, three or four years. Possession of child pornography is an alternate felony-misdemeanor, with a felony imprisonment term of 16 months, two year, or three years. Distribution of child pornography to a minor is a felony. Audrie's parents have argued that the boys involved in the incident should be tried as adults. Assuming that the boys were at least 16 years old at the time of the incident, the prosecutor could seek an order transferring the boys to adult court. To prevail, the prosecutor would be required to show that boys are un-amenable to treatment in juvenile court under five factors concerning the nature and sophistication of the crime, the delinquency records of the boys and their amenability to rehabilitation. The court shall transfer a minor to adult court if the prosecutor establishes any one of the factors. (Welf. & Inst. Code § 707, subd. (a).) Media reports indicate that the boys are not likely to be tried as adults, but that is also not clear. The boys have been released to home detention --------------------------- <3> Media reports indicated that the photos were widely distributed at school and uploaded to social media. However, the school paper reported that about 10 students saw the photo, which was not uploaded to social media. http://www.dailymail.co.uk/news/article-2331089/Audrie-Pott-Famil y-girl-killed-maintains-subjected-humiliation-cyber-bullying.html ?ito=feeds-newsxml. <4> http://www.santacruzsentinel.com/localnews/ci_23322813/girls-suic ide-after-alleged-attack-troubles-town. (More) SB 255 (Cannella) PageQ pending the jurisdictional hearing (trial) in juvenile court.<5> WHERE A PERSON DISTRIBUTES NUDE IMAGES OF A MINOR, HAS THE PERSON LIKELY COMMITTED MULTIPLE CHILD PORNOGRAPHY CRIMES? 5. Cyber Revenge Case from Tulare County An unpublished appellate case in Tulare County illustrates the use of cyber revenge to harass, defame and humiliate a former spouse or partner.<6> Michael Rosa sought revenge against his former spouse Jennifer. Ross threatened to kill Jennifer if she left him and threatened to kill Jennifer's new husband. Rosa posted false Internet ads that included nude photos of Jennifer and false solicitations for men to meet her for oral sex. Numerous men telephoned and came to her place of employment at a bank. Rosa was charged with and convicted of numerous counts of stalking, false personation, identity theft and unauthorized electronic distribution of identifying information. The decision also noted that Rosa was civilly liable for defaming Jennifer because of the false sexual solicitations. In many cases of the posting of nude images of another with the intent to distress or humiliate, the person who posted the images may be civilly liable for defamation and intentional infliction of emotional distress. WHERE A PERSON FRADULENTLY POSTS NUDE PHOTOS AND FALSE SOLICITATIONS IN THE IMAGE OF ANOTHER PERSON, CAN THE PERSON WHO POSTED THE MATERIAL BE CHARGED WITH IDENTITY THEFT AND RELATED CRIMES? CAN SUCH BEHAVIOR ALSO BE THE GROUNDS FOR CIVIL SUITS ALLEGING --------------------------- <5> http://www.dailymail.co.uk/news/article-2331089/Audrie-Pott-Famil y-girl-killed-maintains-subjected-humiliation-cyber-bullying.html ?ito=feeds-newsxml. <6> http://www.lexis.com/research/retrieve?_m=eb1aa980bb8720dcd21b0e4 7d41a2ca7&csvc=le&cform=byCitation&_fmtstr=FULL&docnum=1&_startdo c=1&wchp=dGLbVzV-zSkAA&_md5=6d4313184f8723366ff76beb7ef79be0. SB 255 (Cannella) PageR DEFAMATION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS? ***************