The Criminalization of E-Personation

I was interviewed yesterday for the local Fox affiliate on Cal. SB 1411, which criminalizes online impersonations (or “e-personation”) under certain circumstances.

On paper, of course, this sounds like a fine idea. As Palo Alto State Senator Joe Simitian, the bill’s sponsor, put it, “The Internet makes many things easier. One of those, unfortunately, is pretending to be someone else. When that happens with the intent of causing harm, folks need a law they can turn to.”

Or do they?

The Problem with New Laws for New Technology

SB1411 would make a great exam question or short paper assignment for an information law course. It’s short, is loaded with good intentions, and on first blush looks perfectly reasonable—just extending existing harassment, intimidation and fraud laws to the modern context of online activity. Unfortunately, a careful read reveals all sorts of potential problems and unintended consequences.

A number of states have passed new laws in the wake of highly-publicized cyberstalking and bullying incidents, including the tragic case involving a young girl’s suicide after being dumped by her online MySpace boyfriend, who turned out to be a made-up character created for the purpose of hurting her feelings. (I’ve written about the case before, see “Lori Drew Verdict Finally Overturned.” )

Missouri passed a cyberbullying law when it turned out there was no federal law that covered the behavior in the MySpace case. Texas and New York recently enacted laws similar to SB 1411, though the Texas law applies only to impersonation on social media sites.

The problem with all these laws generally is that the authors aren’t clear what behaviors exactly they are trying to criminalize. And, mindful of the fact that the evolution of digital life is happening much faster than any legislative body can hope to keep up with, these laws are often written to be both too specific (the technology changes) and too broad (the behavior is undefined). As a result, they often don’t wind up covering the behavior they intend to deter, and, left on the books, can often come back to life when prosecutors need something to hang a case on that otherwise doesn’t look illegal.

Given the proximity to free speech issues, the vagueness of many of these laws makes them good candidates for First Amendment challenges, and many have fallen on that sword.

California's SB 1411 as a Case in Point

SB1411, which last week passed in the State Senate, suffers from all of these defects. It punishes the impersonation of an “actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening or defrauding another person.” It requires the impersonator to knowingly commit the crime and do so without the consent of the person they are imitating. It also requires that the impersonation be credible. Punishment for violation can include a year in jail and a suit brought by the victim for punitive damages.

First let’s consider a few hypotheticals, starting with the one that inspired the law, the MySpace case noted above. Since the boy whose profile lured the victim into an online romance that was then cruelly terminated was a made-up person (the perpetrators found some photo of a suitably shirtless teen and built a personality around it), SB 1411 would not apply had it been the law in Missouri. The boy was not an “actual person,” and, except perhaps to a thirteen year old with existing mental health problems, may not have been credible either. (The determination of “credibility” under SB 1411 would presumably be based on the “reasonable person” standard.) Likewise, law enforcement agents creating fake Craigslist ads to smoke out drug buyers, child molesters, or customers of sex workers would also not be violating the law.

For more, see “The Fallacy of E-Personation Laws”