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