BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1411 (Simitian) 1
As Amended March 25, 2010
Hearing date: April 13, 2010
Penal Code
JM:mc
IMPERSONATION:
INTERNET AND ELECTRONIC MAIL
HISTORY
Source: Author
Prior Legislation: SB 97 (Murray) - Ch. 247, Stats. 2005
SB 1457 (Murray) - Ch. 571, Stats. 2004
SB 186 (Murray) - Ch. 487, Stats. 2003
SB 277 (Dutra) - Ch. 277, Stats. 2003
SB 412 (Vasconcellos) - Ch. 927, Stats. 2001
SB 1319 (Burton) - Ch. 218, Stats. 2000
AB 1897 (Davis) - Ch. 956, Stats. 2000
AB 156 (Murray) - Ch. 768, Stats. 1997
Support: Unknown
Opposition:American Civil Liberties Union; California Peace
Officers Association (unless amended to exempt
legitimate law enforcement activities)
KEY ISSUES
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SHOULD A NEW MISDEMEANOR BE ENACTED TO PROHIBIT A PERSON FROM
IMPERSONATING OR PRETENDING TO BE ANOTHER PERSON THROUGH OR ON
AN INTERNET WEBSITE OR BY ANY OTHER ELECTRONIC MEANS, AS
SPECIFIED?
(CONTINUED)
SHOULD "ELECTRONIC MEANS" BE DEFINED TO "INCLUDE" OPENING AN E-MAIL
ACCOUNT OR AN ACCOUNT OR PROFILE ON A SOCIAL NETWORKING SITE?
SHOULD A DEFENDANT BE GUILTY OF THIS NEW CRIME WHERE HE OR SHE
IMPERSONATED OR PRETENDED TO BE ANOTHER PERSON FOR THE PURPOSE OF
OBTAINING A BENEFIT IN BAD FAITH, OR TO INJURE OR DEFRAUD ANOTHER,
OR TO DECEIVE ANOTHER IN BAD FAITH?
SHOULD A PERSON WHO IS "AGGRIEVED" BY THE COMMISSION OF THIS NEW
CRIME BE AUTHORIZED TO FILE A CIVIL ACTION UNDER AN EXISTING LAW
AUTHORIZING A CIVIL SUIT AGAINST A DEFENDANT CONVICTED OF MISUSING A
COMPUTER, COMPUTER SYSTEM, OR DATA?
PURPOSE
The purposes of this bill are to 1) define a new misdemeanor
that would be committed where the defendant, through or on an
Internet site or by any other electronic means, impersonates
another to a) obtain a benefit in bad faith; b) deceive another
in bad faith; or c) injure or defraud another; 2) provide that
"electronic means" shall include opening an e-mail account or an
account or profile on a social networking Internet Web site in
another person's name; 3) provide that this crime is punishable
by a jail term of up to one year, a fine of up to $10,000, or
both; and 4) provide that a person aggrieved by this crime may
file a civil action pursuant to an existing cause of action
applicable where a defendant is convicted of a crime involving
misuse or damage of a computer, computer system or data.
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False Personation and Identity Theft
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
529, par. 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, par. 2.)
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 530.5, subd. (a).)
Unfair Business Practices and Related Matters, including
Deceptive Internet Practices and Political Cyberfraud
Existing law provides that the attorney general or a district
attorney can seek an injunction and civil penalties of up to
$2,500 per instance when a person has engaged in an unlawful
business act or practice. (Bus. & Prof. Code 17200, 17204
and 17206.)
Existing law provides that an individual may seek an injunction
for an unlawful business act or practice if he or she suffered
an injury in fact and lost money or property as a result. (Bus.
& Prof. Code 17204.)
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Existing law provides that it is unlawful for a person, with a
bad faith intent, 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, without regard to
the goods and services of the parties. (Bus. & Prof. Code
17525.)
Existing law provides, in cases concerning bad faith and unfair
business practices in the Internet, that a court may consider
the following factors:
The extent to which the domain name consists of the
legal name of the person alleged to be in violation of the
article; or
The intent of the person alleged to be in violation of
the article to divert consumers from the person's online
location to a site accessible under the domain name that
could harm the goodwill represented by the person's name
with the intent to tarnish or disparage the person's name
by creating a likelihood of confusion as to the source,
sponsorship, affiliation or endorsement of the site. (Bus.
& Prof. Code 17526.)
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
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:
Deny a person access to a political Web site;
Deny a person the opportunity to register a domain name
for a political Web site; or
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 18320 et seq.)
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SPAM (Unsolicited E-Mail) and Phishing (Fraudulent Gathering of
Information through Electronic Means)
Existing law - the federal CAN-SPAM Act - preempts state law on
unsolicited e-mail transmissions, except for cases that involve
fraud or misleading messages. (PL 108-187.) The federal law
does the following:
Requires that commercial e-mail be labeled, have a valid
return address, and a physical address. Requires that
e-mailers allow recipients to opt out of receiving further
commercial e-mail, and provides senders 10 business days to
process opt out requests.
Prohibits deceptive practices and the harvesting of
e-mail addresses from Web sites.
Provides criminal penalties for fraudulent headers and
using other people's e-mail accounts or computers to send
commercial e-mail. Provides for civil enforcement by the
Federal Trade Commission (FTC), state attorneys general, or
Internet Service.
Provides for actual damages and statutory damages up to
$250 per e-mail, with a cap of $2 million per incident, or
$6 million if the violation of the federal law is willful.
Existing California law (Bus. & Prof. Code 17529 et seq.)
defines what constitutes illegal commercial e-mail advertisement
sent from or to California and provides specified remedies:
The e-mail advertisement contains or is accompanied by a
third party's domain name without permission.
The e-mail advertisement contains or is accompanied by
falsified, misrepresented or forged header information.
The e-mail advertisement subject line would be
reasonably likely to mislead a recipient about a material
fact.
The following persons or entities may bring a civil
action under this section:
o The Attorney General.
o An electronic mail service provider.
o The recipient of an unsolicited commercial e-mail
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advertisement.
The following damages may be recovered in a civil spam
action:
o Actual damages.
o Liquidated damages of $1,000 per each prohibited
e-mail advertisement, with a maximum of $1,000,000 per
incident. If the court finds that the defendant, with
due care, implemented practices and procedures reasonably
designed to effectively prevent prohibited e-mail, the
court shall reduce the liquidated damages to a maximum of
$100 per advertisement, or a maximum of $10,000 per
incident.
o The prevailing party may recover costs and
attorney's fees.
Existing law provides that violation of the Cal SPAM act is a
misdemeanor. (Bus. & Prof. Code 17529.5.)
Existing law - the Anti-Phishing Act of 2005 - provides: "It
shall be 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 22948.2.)
Existing law provides that the following persons may bring an
action against a person who violates or is in violation of the
Anti-Phishing law:
A person who (A) is engaged in the business of providing
Internet access service to the public, owns a Web page, or
owns a trademark, and who (B) is adversely affected by a
violation of Section 22948.2. A plaintiff within this
category may seek to recover the greater of actual damages
or five hundred thousand dollars ($500,000). (Bus. & Prof.
Code 22948.3, subd. (a)(1).)
Any person who is adversely affected by a phishing
violation may bring an action, but only against a person
who has directly violated Section 22948.2. An action
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brought under this provision may seek to enjoin further
violations of Section 22948.2. Recoverable damages are the
greater of three times the amount of actual damages, or
$5,000 per violation. (Bus. & Prof. Code 22948.3, subd.
(a)(2).)
Existing law provides that the Attorney General or a district
attorney may bring an action against a person who violates the
anti-phishing law. Relief in such an action can include an
injunction of further violations of Section 22948.2 and a civil
penalty of up to two thousand five hundred dollars ($2,500) per
violation. (Bus. & Prof. Code 22948.3, subd. (b).)
Existing law provides that in an anti-phishing suit the court
may, in addition to other specified relief, do either or both of
the following: (1) Increase the recoverable damages to an amount
up to three times the damages otherwise recoverable where the
defendant has engaged in a pattern and practice of phishing
violations and the aggrieved party provides Internet service,
owns a Web page or owns a trademark. (2) Award costs of suit
and reasonable attorneys fees to a prevailing plaintiff. (Bus.
& Prof. Code 22948.3, subd. (c).)
Defamation
Existing law provides that libel is a false, unprivileged
written publication that causes injury. Slander is a false,
unprivileged oral communication that causes injury. (Civ. Code
45- 46.)
Existing provisions of the California Constitution require that
a person who is found liable in a civil action for making
libelous or slanderous statements against an opposing candidate
during the course of an election campaign forfeit the office to
which he or she was elected, if the trier of fact finds that the
libel or slander was a major contributing cause in the defeat of
an opposing candidate, and the statement was made with the
knowledge that it was false or with reckless disregard of
whether it was false or true. (Cal. Const., Art. VII, 10.)
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The First Amendment to the United States Constitution provides
in part, "Congress shall make no law ... abridging the freedom
of speech, or of the press." Section 2 of Article I of the
California.
Constitution provides that "Every person may freely speak, write
and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain
or abridge liberty or speech or press."
Landmark defamation decisions of the United States Supreme Court
provide the following: In New York Times Co. v. Sullivan (1964)
376 U.S. 354, the court held that a public official may not
recover damages for defamation concerning his or her official
conduct unless the statement was made with "actual malice" -
knowledge that it was false or with reckless disregard of the
truth or falsity of the statement. Garrison v. Louisiana (1964)
379 U.S. 64, limited the ability of states to define crimes for
criticism of the official conduct of public officials. In 1967
the standard requiring knowledge of the falsity of statement or
reckless disregard of the truth was extended to "public figures"
in Curtis Publishing v. Butts (1967) 388 U.S. 130. However, a
plaintiff who is a private individual (non-public figure) need
not show actual malice in a libel or slander action, although
the plaintiff must establish actual damages to obtain more than
nominal compensation. (Gertz v. Welch (1974) 418 U.S. 323.)
Harassment by Telephone or Electronic Device
Existing law provides that every person who, with intent to
annoy, telephones, or makes contact by means of an electronic
communication device with another is guilty of a misdemeanor
where the following circumstances occur: The perpetrator
addresses the other person with obscene language, speaks about
the other person in obscene language, or addresses to the other
person any threat to injure the person or harm the property of
the person addressed, or any member of his or her family.
Nothing in this subdivision shall apply to telephone calls or
electronic contacts made in good faith. (Pen. Code 653m.
subd. (a).)
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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 any place is guilty of a misdemeanor. Nothing in this
subdivision shall apply to telephone calls or electronic
contacts made in good faith during the ordinary scope and course
of business. (Pen. Code 653m, subd. (b).)
The New Crime Defined by this Bill - False Personation through a
Website or by other Electronic Means
This bill creates a new misdemeanor committed where the
defendant, through an Internet website or "other electronic
means," impersonates or pretends to be another person with one
of the following purposes:
To injure another person.
In bad faith, deceive another person.
Obtain a benefit in bad faith.
This bill defines "electronic means" to include:
Opening an e-mail account in the name of another person.
Opening an account or creating a profile in the name of
another person on a social networking site.
This bill defines this new crime as a misdemeanor with a maximum
jail term of one year, a fine of up to $10,000, or both.
This bill provides that in addition to any other civil remedy,
"an aggrieved party" who "suffers damage or loss" as a result of
a violation of this new crime may file a civil action for
damages or equitable relief under the provisions (Pen. Code
502, subd. (g)) concerning damage to or misuse of another
person's or entity's computer system or data.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
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laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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1. Need for This 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. Issue Concerning Whether this Bill Creates a Form of Criminal
Defamation
It could be argued that this bill could allow prosecutions for a
form of criminal defamation in which the defendant defamed the
victim through statements attributed to the victim or made on a
website or similar electronic forum associated with the victim.
Enactment of a criminal defamation law could reopen thorny
issues that have not been considered in California in decades.
In 1976, California's criminal libel statutes (former Pen. Code
248, 249, 250 and 251) were invalidated on First Amendment
grounds by the California Court of Appeal in Eberle v.
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Municipal Court (1976) 55 C.A. 3rd 423.<2> In 1986, the
criminal libel statutes were repealed by SB 1286 (McCorquodale),
Ch. 141, Stats. 1986. In 1991, the criminal slander provisions
(Pen. Code Sections 258 to 260) were repealed by AB 436
(Floyd), Ch. 186, Stats. 1991. AB 436 included legislative
findings that "every person has the right to speak out, poke
fun, and to stir up controversy without the fear of criminal
prosecution."
3. Mens Rea (Criminal Intent) in the Existing False Personation
Crime and Bad Faith Within the Meaning of this Bill
In general, a crime can be defined as a prohibited act that is
done with mens rea - a criminal state of mind - which is
typically a specified intent or knowledge. The California
Supreme Court has ruled that the mens rea in the existing crime
of false personation is to intentionally assume the identity of
another person. (People v. Rathert (2000) 24 Cal.4th 200.)<3>
As explained in Rathert, the defendant in a false personation
case need not intend to harm to person whose identity was
assumed; nor must the defendant intend to obtain a benefit. The
impersonation must simply be likely to harm the person whose
identity was assumed or to produce a benefit for someone. "We
conclude section 529, paragraph 3<4>, by its terms, is violated
when one intentionally falsely personates another and, in such
assumed character, does any act that might cause the liability
or benefit described in the statute. Paragraph 3, in other
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<2> The California Supreme Court declined to review the
decision.
<3> The court in Rathert sidestepped the issue of whether the
crime involves a specific intent. There were two concurring
opinions that essentially noted that the majority opinion was
incomplete or perhaps confusing.
<4> Paragraph 3, which is very similar to the crime defined in
this bill concerns an impersonation in which the defendant "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."
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words, requires the existence of no state of mind or criminal
intent beyond that plainly expressed on the face of the
statute." (Id, at pp.202.)
The term bad faith in this bill may prove to be problematic as
concerns a defendant's intent to deceive another through
impersonation. Presumably, the bill includes deceptions that do
not involve defrauding or harming another person, as the bill
separately criminalizes using a false or assumed identity to
harm or commit fraud. Would bad faith mean that the defendant
intended that the recipient of an e-mail or visitor to a website
actually believe the attempted deception? As such, the
definition of the crime is relatively circular. That is, a bad
faith deception would simply be a successful deception.
4. Vagueness and Overbreadth Issues
A vague statute is unconstitutional. A vague statute fails to
give adequate notice to a defendant of what behavior is
prohibited. (Connally v. General Const. Co. (1926) 269 U.S.
385, 391.)
A corollary to the vagueness doctrine is the principle of
overbreadth. A statute is overbroad where it defines innocuous
or innocent activity as being criminal. "The overbreadth
doctrine provides that 'a governmental purpose to control or
prevent activities constitutionally subject to state regulation
may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms.'" (Williams
v. Garcetti (1993) 5 Cal.4th 561, 577, citations omitted.)
Overbreadth has a particular meaning in First Amendment cases in
that overly broad statutes create a chilling effect on protected
speech and expressive conduct. A statute is facially overbroad
if it "may cause others not before the court to refrain from
constitutionally protected speech or expression." (Broadrick v.
Oklahoma (1973) 413 U.S. 601, 612.) To succeed, "a
constitutional challenge based on asserted overbreadth . . .
must demonstrate the statute inhibits a substantial amount of
protected speech." (New York v. Ferber (1982) 458 U.S. 747,
768-769.)
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California appellate cases have held that the existing false
personation statute (Pen. Code 529) is not, on its face, vague
and overbroad. (People v. Vaughn (1961) 196 Cal.App.2d 622.)
That case is 40 years old, however, and it appears that
prosecutions for false personation were relatively rare at the
time of the decision.
Bad Faith and Vagueness
Comment #3 discusses the issue of mens rea (criminal intent or
knowledge) in general and as concerns this bill. The portion of
the crime defined by this bill that prohibits a defendant from
impersonating another to obtain a benefit in bad faith or
deceiving another person in bad faith could likely be challenged
as being vague. In particular, does bad faith simply mean that
the defendant intended another to actually believe that the
defendant was the person whose identity was assumed? Does bad
faith mean that the defendant intended to gain some advantage or
cause some harm that he or she would not have been able to do in
his or her own name? That is, would a person of ordinary
intelligence understand what it means to act in bad faith within
the meaning of this bill?
Existing prohibitions of bad faith and the use of domain names
and acts associated with the Internet arise in civil law in the
context of unfair business practices. Courts would have
difficulty instructing juries on what constitutes bad faith in a
crime. Further, a person may bring an unfair business practice
action if he or she has lost money or property because of a
defendant's unfair business practice. Unfair competition cases
typically arise in the context of very specific claims, such as
labor law violations and violations of the Americans with
Disabilities Act, not some general claim of bad faith. Judges
are also directed to consider very specific factors in
determining whether a defendant's use of a domain name or other
act was done in bad faith. Essentially, very broad concepts of
fairness would be difficult to apply in criminal prosecutions.
WOULD AN AVERAGE PERSON UNDERSTAND WHAT IT MEANS TO ACT IN BAD
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FAITH WITHIN THE CONTEXT OF THIS BILL?
SHOULD THE CIVIL LAW CONCEPT OF BAD FAITH BE APPLIED IN A CRIME
INVOLVING IMPERSONATION?
The Offense of Pretending to be Another Person within the
Context of this Bill?
This bill does not clearly provide whether or not the defendant
must "pretend to be" a real person. One could perhaps be guilty
of a crime under this bill, and then subject to civil liability,
if he or she created a fictional character in an e-mail or on a
website. Social commentary could be substantially constrained
if any use of electronic communications in an assumed identity
was made illegal. For example, a person who works in government
or industry who wants to criticize the agency or firm for which
the person works, could not protect him or herself against
reprisals if he or she could not assume a fictional identity.
It should be noted that the false personation statute on which
this bill is based does require that the defendant intentionally
assume the identity of a real person. (People v. Rathert,
supra, 24 Cal.4th 200, 205-206.) The defendant is guilty of
false personation if the person whose identity was assumed is
likely to become liable to any prosecution or suit, or subject
to a penalty or charge. (Ibid.) The person whose identity was
assumed by the defendant need not be alive at the time of the
crime. (People v. Lee (2000) 22 Cal.4th 41.)
This bill does not include a requirement that the person whose
identity was assumed be subject to some harm. The bill, rather,
includes an element that the defendant intended to injure,
defraud, or deceive "another person." It appears that "another
person" could be any person, not only the person whose identity
was assumed.
DOES THIS BILL NOT REQUIRE THAT THE DEFENDANT ASSUME THE
IDENTITY OF A REAL PERSON?
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Benefit
This bill does not define what constitutes a benefit.
Dictionary definitions of benefit include advantage, profit,
welfare or insurance payments, the common good, and other
definitions. For example, one could benefit from a favorable
impression in the minds of others created through an e-mail
extolling the virtues of a person mentioned in the e-mail.
The only published opinion directly concerning what constitutes
a benefit considered a 1961 case in which one twin sister
pretended to be her sister in order to attempt to avoid a
conviction of the sister for possession of marijuana. The court
held that benefit could mean "any advantage and that the
advantage need not accrue to the defendant who impersonated
another." (People v. Vaughn (1961) 196 Cal.App.2d 622.) One
could thus argue that there is a precedent for concluding that
"benefit" is not an unconstitutionally vague term.
Aggrieved Party
This bill does not define who may be an "aggrieved party" who
suffers loss or damages as a result of a commission of the crime
defined by this bill. If the term "aggrieved party" refers to
the victim of a crime, the term victim should arguably be used.
It the term "aggrieved party" can be interpreted to mean anyone
affected by the defendant's conduct, this bill creates very
open-ended liability.
ARE THE ELEMENTS OF THE CRIME DEFINED BY THIS BILL VAGUE OR
OVERLY BROAD UNDER CONSTITUTIONAL STANDARDS?
5. This Bill, in Contrast to the Political Cyberfraud Law, Does
Not Include an Element That Defendant's Deception was Credible
This bill does not require that anyone actually be deceived by
the defendant who pretended to be another person -- either on an
Internet site or through e-mail. Thus, relatively innocuous
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conduct could be the basis of a criminal conviction, a jail term
and a substantial fine. Prosecution under this bill for
transparently fake websites or e-mails would be attacked through
arguments that the bill is overbroad.
However, it could be relatively easy to eliminate this form of
overbreadth. That is, the bill could specify that it only
applies where a reasonable person would likely concluded that
the e-mail or website created or used by the defendant was
actually that of the person whose name or identity was used by
the defendant.
For example, the political cyberfraud law includes the following
element concerning the apparent credibility of a fraudulent
website or other communication or act:
"Political cyberfraud" [in part involves an act]
that would or 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, and
would cause a reasonable person, after reading the Web
site, to believe the site actually represents the
views of the proponent or opponent of a ballot
measure.
6. United States v. Lori Drew - Defendant Pretended to be a
16-Year-Old Boy in Order to Harass and Distress a Classmate of
Ms. Drew's Daughter
The author's background material notes the relatively recent
case of U.S. v. Lori Drew. The defendant in that case 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. Megan hung herself.
Prosecution in that case was based on the defendant's alleged
violation of the MySpace Terms of Service Agreement as a
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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 noted that violations of the
terms of service of a site such as MySpace are very likely
ubiquitous. (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 and in a very broad
manner. The court often noted in the opinion that notions of
harm and deception in electronic communications are inherently
vague.
Media reports have noted the family of the girl who committed
suicide did not file a civil action for intentional infliction
of emotional distress. However, such an action would appear to
be particularly appropriate in that case. Media accounts
indicated that Drew intended to cause, and did cause, severe
emotional distress to Megan.
7. New York Law on Which This Bill Was Modeled
In 2008, New York enacted a law forbidding impersonation of
another by Internet website or e-mail. It appears that this
bill is largely modeled on the New York law. The New York
statute is set out below:
190.25. Criminal impersonation in the second degree
[a misdemeanor]
A person is guilty of criminal impersonation in the
second degree when he:
1. Impersonates another and does an act in such
assumed character with intent to obtain a benefit or
to injure or defraud another; or
2. Pretends to be a representative of some person or
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organization and does an act in such pretended
capacity with intent to obtain a benefit or to injure
or defraud another; or
3. (a) Pretends to be a public servant, or wears or
displays without authority any uniform, badge,
insignia or facsimile thereof by which such public
servant is lawfully distinguished, or falsely
expresses by his words or actions that he is a public
servant or is acting with approval or authority of a
public agency or department; and (b) so acts with
intent to induce another to submit to such pretended
official authority, to solicit funds or to otherwise
cause another to act in reliance upon that pretense.
4. Impersonates another by communication by internet
website or electronic means with intent to obtain a
benefit or injure or defraud another, or by such
communication pretends to be a public servant in order
to induce another to submit to such authority or act
in reliance on such pretense.
There are no appellate cases interpreting the portion of the New
York law on which this bill is modeled. Published appellate
cases considering the law prior to the 2007-2008 amendments
involve relatively straightforward forms of fraud. These
include cases in which defendants pretended to be utility
workers in order to burglarize residences. A 1997 case found
that a jury in an impersonation case must be instructed that the
crime includes an element that the defendant impersonated an
actual person. "The defendant correctly contends that in order
to be found guilty of this offense, the People must have
established that he impersonated a real person." (People v.
Sadiq (1997) 654 N.Y.S. 2d 35.)
The following citation and quotation illustrates how New York
courts have interpreted the term "benefit" within the meaning of
the criminal impersonation law:
The "benefit" to the miscreant contemplated by the
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statute prohibiting criminal impersonation need not be
monetary. The benefit may consist of the desire to
avoid apprehension or prosecution. (People v. Chive
(2001) 734 N.Y.S.2d 830, citations omitted.)
8. Numerous Existing Statutes Consider Identity Theft, Criminal
Impersonation, Cyberfraud, Improper E-Mail and Internet
Practices
As noted above, there are numerous statutes that define crimes
for identity theft and criminal impersonation and related forms
of fraud. Existing law includes numerous statutes on improper
practices concerning e-mail and websites. This bill would add
another layer to existing law, law that is still being applied
in society and interpreted in the courts. Arguably, this bill
could overlap with existing laws. Overlapping laws can create
confusion in the general public, journalists, purveyors of new
media and for persons charged with enforcing the laws.
The author notes that the existing crime of false personation
was enacted in 1872 and that modern electronic forms of
communication could not have been contemplated at that time.
"SB 1411 would expand [the law] to by making it a crime to
impersonate another person through [the Internet] or other
electronic means."
DOES THIS BILL COVER MATTERS THAT ARE ADEQUATELY ADDRESSED IN
EXISTING LAW?
COULD THIS BILL CREATE CONFUSION WHEN CONSIDERED WITH EXISTING
LAWS AND PRACTICES?
9. Issue Concerning Whether a New Form of False Personation is
Necessary to Reflect New Methods of Communication or
Expression
Arguably, false personation is committed regardless of the form
of communication or expression used by the defendant. The
essence of false personation is intentionally assuming the
identity of another person under circumstances where the person
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would likely suffer harm or liability, or where any person could
obtain a benefit. The specific means by which the defendant
assumed the victim's identity would appear to mainly affect
gravity or extent of the crime. Even at the time the false
personation statute was enacted, a defendant could cause much
more harm by using a means of mass communication such as the
telegraph, as opposed impersonating another in face-to-face
transactions.
IS THE ESSENTIAL NATURE OF THE CRIME OF FALSE PERSONATION NOT
DEPENDENT ON THE FORM OF COMMUNICATION USED BY THE DEFENDANT TO
ASSUME THE IDENTITY OF THE VICTIM?
10. Mandatory Penalty Assessments Multiply a Criminal Fine
Nearly Four Times
Criminal fines are subject to mandatory penalty assessments.
Penalty assessments fund numerous programs. Penalty assessments
generally are imposed at 280% of the base fine, although the
exact amount varies from county to county. A defendant who is
ordered to pay the maximum fine authorized by this bill would
actually be required to pay a fine of approximately $38,000.
SHOULD A DEFENDANT CONVICTED OF THE MISDEMEANOR DEFINED BY THIS
BILL BE SUBJECT TO A FINE OF UP TO $10,000, WHICH IS ACTUALLY A
FINE OF APPROXIMATELY $38,000 BECAUSE MANDATORY PENALTY
ASSESSMENTS MUST BE IMPOSED ON EACH CRIMINAL FINE?
11. Possible Amendments to Simplify the Misdemeanor Defined by
the Bill
Elements of Impersonation Crimes in Other States and Related
California Offenses
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As noted above, impersonation statutes in other states and the
existing California crime of false personation include an
element that the defendant intentionally impersonated a real
person. Existing California law concerning the use of
deceptive political websites and electronic communication
include an element that a reasonable person would be deceived by
a fake website or communication. Statutes in other states on
impersonation by electronic means tend to include an element
that the defendant intended to harm or defraud another person.
Further, lack of consent is typically an element of identity
theft and impersonation crimes.
The conduct constituting a crime under this bill could also be
the basis for prosecutions for crimes such as fraud, identity
theft and harassment. As numerous specific statutes exist in
the law, it is advisable that any general impersonation statute
include a clear statement that prosecution under this new
statute shall not limit prosecution under any other statute or
provision of law.
Including an Element that the Defendant Intended to Harm,
Intimidate or Threaten Another Person - Possible Judicial
Interpretation Limiting the Element to non-Trivial Harm
An element that the defendant intended through the impersonation
to harm, intimidate or threaten another would almost certainly
be challenged by defendants as being vague.<5> A court
evaluating such a challenge would need to consider whether the
average person would understand what is prohibited by the
statute and whether or not a jury would be able to determine
whether the defendant intended to harm another. It is perhaps
likely that the terms "harm, intimidate or threaten" would be
construed by courts to apply in circumstances where the
defendant intended some significant harm or intimidation, not
some minor slight or annoyance.
Courts have upheld terms such as "great bodily injury" against
---------------------------
<5> The terms "fraud" or "to defraud" would not likely be
challenged as vague.
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constitutional challenges. Great bodily injury has been
construed to mean injury that is neither trivial nor transitory.
Beyond such guidelines, juries are free to determine whether or
not the defendant caused great bodily injury.
In contrast, the term "benefit" would be difficult to apply in
prosecutions. It would appear that in most cases where an
impersonator obtained a benefit through the impersonation, this
conduct would also constitute fraud or cause harm. It is
suggested that the bill not include an element that the
defendant intended to obtain a benefit. Arguably, an
impersonation that caused no harm but that created some sort of
benefit or sense of satisfaction to the impersonator does not
involve criminal conduct.
Specific Suggested Amendments
It is suggested that the bill be amended to define a misdemeanor
with the following elements:
1) The person intentionally, and without consent, impersonated
another, actual person, through electronic means, as
specified.
2) The impersonation was credible, in the sense that a
reasonable person would believe the impersonator to actually
be the person whose identity was assumed.
3)The impersonator intended to defraud, harm, intimidate or
threaten another person.
4) Prosecution under this statute would not limit prosecution
under any other provision of law.
It is recommended that the fine for this crime be the standard
misdemeanor fine of a maximum of $1,000. As mandatory penalty
assessment are added to any criminal fine, a $1,000 fine is
actually an approximately $4,000 fine. Defendants who cause
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economic harm must pay restitution to the victim. Further, this
bill makes the provisions in subdivision (e) and (g) of Penal
Code Section 502 (civil actions for damages and injunctive
relief in cases involving harm to or misuse of computers and
data) applicable to the crime defined by this bill. Arguably,
this bill includes substantial deterrence and financial
penalties without the need for a $10,000 criminal fine.
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