BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1411 (Simitian)
As Amended March 25, 2010
Hearing Date: April 20, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Impersonation: Internet
DESCRIPTION
This bill would create a new misdemeanor for when a person
knowingly and without consent credibly impersonates another
person on the Internet, or other electronic means in order to
harm, intimidate, threaten, or defraud another person. This
bill would also provide that an aggrieved party may bring a
civil action against the violator for compensatory damages and
injunctive relief or equitable relief.
(This analysis reflects author's amendments to be offered in
committee)
BACKGROUND
In the recent case of United States v. Drew (2009) 259 F.R.D.
449, the defendant was the mother of a 13-year-old girl in
Missouri. Drew created a MySpace profile in which she pretended
to be a teenage boy. In the persona of this character, the
defendant initially flirted with Megan, a classmate of Drew's
daughter, Sarah. Eventually, the defendant sent an e-mail
telling Megan that the world would be a better place without
her, and Megan subsequently committed suicide.
The prosecution was based on the defendant's alleged violation
of the MySpace Terms of Service Agreement as a violation of
federal law on computer services. The indictment specifically
alleged that Drew conspired with others to intentionally inflict
emotional distress on Megan. In dismissing the case, the court
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noted that the terms of service are so expansive and elaborate,
and that violations are very likely to occur frequently. (For
example, urging friends to buy Girl Scout cookies from one's
daughter would violate prohibitions on advertising of products).
As such, prosecutions could be brought arbitrarily, without any
real notice to the user, and in a very broad manner. Further,
the court repeatedly noted that notions of harm and deception in
electronic communications are inherently vague.
This bill is intended to close perceived statutory loopholes in
current law by specifically criminalizing the false
impersonation of a person through electronic means and providing
specific remedies for those who are victimized.
This bill was approved by the Senate Public Safety Committee on
April 13, 2010 by a vote of 7-0.
CHANGES TO EXISTING LAW
Existing law provides that any person who falsely personates
another person is guilty of an alternate felony-misdemeanor.
False personation involves intentionally assuming the identity
of another person where it is likely that the person whose
identity was assumed could become liable to criminal prosecution
or a lawsuit, or be subject to a debt or penalty. The crime is
also committed where the defendant intentionally assumed the
identity of another person under circumstances where a benefit
"might accrue" to the defendant or any other person. (Pen. Code
Sec. 529.)
Existing law provides that one also commits false personation
where he or she assumes the identity of another person to 1)
become a bail or surety for any party, or 2) verify, publish,
acknowledge, or prove any written instrument, with the intent
that the writing be recorded, delivered, or used as true. (Pen.
Code Sec. 529.)
Existing law provides that it is an alternate felony-misdemeanor
for a person to willfully obtain the personal identifying
information, as defined, of another person and to use such
information to obtain, or attempt to obtain, credit, goods, or
services in the name of the other person without consent. (Pen.
Code Sec. 530.5(a).)
Existing law , the California Political Cyberfraud Abatement Act,
provides that it is unlawful for a person, with intent to
mislead, deceive, or defraud, to commit an act of political
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cyberfraud. "Political cyberfraud" is defined as an act
concerning a political Web site of a statewide ballot measure
that is committed with intent to do one of the following: (1)
deny a person access to a political Web site; (2) deny a person
the opportunity to register a domain name for a political Web
site; or (3) cause a person reasonably to believe that a
political Web site has been posted by a person other than the
person who posted the Web site. (Elec. Code Sec. 18320 et seq.)
Existing federal law , the CAN-SPAM Act, preempts state law on
unsolicited e-mail transmissions, except for cases that involve
fraud or misleading messages. (Public Law 108-187.)
Existing state law (Bus. & Prof. Code Sec. 17529 et seq.)
defines what constitutes an illegal commercial e-mail
advertisement sent from or to California and provides specified
remedies.
Existing law provides that violation of the CAN-SPAM act is a
misdemeanor. (Bus. & Prof. Code Sec.17529.5.)
Existing law , the Anti-Phishing Act of 2005, makes it unlawful
for any person, by means of a Web page, electronic mail message,
or otherwise through use of the Internet, to solicit, request,
or take any action to induce another person to provide
identifying information by representing itself to be a business
without the authority or approval of the business. (Bus. &
Prof. Code Sec. 22948.2.) Existing law further provides that
specified persons who are adversely affected by a violation of
the Anti-Phishing law may bring an action for damages against
the violator. (Bus. & Prof. Code Sec. 22948.3, subd. (a)(2).)
Existing law also provides that the Attorney General or a
district attorney may bring an action for civil penalties and
injunctive relief against a person who violates the
anti-phishing law. (Bus. & Prof. Code Sec. 22948.3, subd. (b).)
This bill would create a new misdemeanor for when a person
knowingly and without consent credibly impersonates another
person on the Internet, or other electronic means in order to
harm, intimidate, threaten, or defraud another person.
This bill would define "electronic means" to include opening an
e-mail account or an account or a profile on a social networking
Internet Web site in another person's name.
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This bill would provide that an impersonation is credible where
another person would reasonably believe, or did reasonably
believe, that the defendant was or is the person who was
impersonated.
This bill would provide that a violation of this bill is
punishable by a fine not exceeding $10,000, or by imprisonment
in a county jail not exceeding one year, or by both that fine
and imprisonment.
This bill would provide that in addition to any other civil
remedy available, an aggrieved party who suffers damage or loss
by reason of a violation of this bill may bring a civil action
against the violator for compensatory damages and injunctive
relief or other equitable relief.
COMMENT
1. Stated need for the bill
The author states:
Existing law addressing false impersonation was written in
1872 without the modern technologies of today in mind. SB
1411 would expand upon existing statute by making it a crime
to falsely impersonate another person through or on an
Internet Web site or by other electronic means.
As our reliance on the Internet to rapidly access, collect and
disseminate information increases, many opportunities for
abuse have and will present themselves. The victims of such
harassment and defamation as a result of false impersonation
perpetrated through the Internet are typically left without
adequate legal protection to stop this abuse. SB 1411 will
rectify this problem by expanding the current false
impersonation statute to include impersonation done on an
Internet Web site or through other electronic means such as
email, Facebook, Twitter, and other social media websites.
2. Amendments taken in Senate Public Safety address
concerns
As currently in print, this bill raised numerous concerns with
respect to whether it comported with constitutional standards
controlling for vagueness and overbreadth in statutes that
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criminalize conduct. In particular, the bill would have
established "bad faith" as an element of the crime for false
impersonation. As detailed in the Senate Public Safety
Committee's analysis, bad faith has generally been used in the
civil context, such as those arising under laws prohibiting
unfair business practices. Bad faith would be difficult to
prove in a criminal prosecution, and would likewise be difficult
to incorporate into jury instructions. Accordingly, the author
accepted amendments to remove "bad faith" from the bill, and
provide that the crime is committed when a person falsely
impersonates another person in order to harm, intimidate,
threaten, or defraud another person. The author also accepted
amendments to provide that the impersonation actually be
credible.
In addition, concerns were previously expressed that this bill
would inhibit law enforcement from impersonating a fictitious
person during sting operations utilized to capture criminals.
Accordingly, the author accepted amendments to provide that a
person is guilty of false impersonation if they credibly
impersonate another actual person. This is consistent with
existing false impersonation statutes.
3. Bill would create a civil action for damages
This bill would authorize an aggrieved party who suffers damage
or loss due to a violation of the bill's provisions to bring a
civil action against the violator for compensatory damages and
injunctive relief or other equitable relief pursuant to Penal
Code Section 502, which pertains to computer crimes. The
injured party would be able to recover attorney's fees, and the
court would be authorized to award punitive damages when it is
established that the defendant is guilty of oppression, fraud,
or malice, as defined in Civil Code Section 3294. The statute
of limitations for the civil action would have to be initiated
within three years of the date of the act complained of, or the
date of the discovery of the damage, whichever is later.
In order to clarify that the actual victim of the false
impersonation would be the person authorized to bring the civil
action, this Committee may wish to consider whether this bill
should be amended to replaced the term "aggrieved party" with
"victim."
Suggested amendment :
In subdivision (e), strike "an aggrieved party" and insert "a
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victim."
Support : None Known
Opposition : None Known (as proposed to be amended)
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1319 (Burton, Chapter 218, Statutes of 2000) provided that it
is an unfair business practice to register, traffic in, or use a
domain name that is identical or confusingly similar to the
personal name of another living person or deceased personality,
with bad faith intent and without regard to the goods or
services of the parties.
SB 412 (Vasconcellos, Chapter 927, Statutes of 2001) prohibited
a person, with intent to mislead, deceive, or defraud, from
committing an act of political cyberfraud.
SB 277 (Dutra, Chapter 277, Statutes of 2003) allowed a court to
consider an individual's intent to mislead, deceive, or defraud
voters in determining whether the individual engaged in the bad
faith registration of a domain name on the internet.
Prior Vote : Senate Public Safety Committee (Ayes 7, Noes 0)
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