In a recent episode of CBS’ The Good Wife (which this blogger will go ahead and admit she loves, particularly for its disciplined realism — because obviously, all fresh-out-of-law-school first year associates get to try murder cases by themselves), Zachary Florrick (the teenage son of the title character) was pressured by ne’er-do-well vixen Becca into setting up a fake Facebook page in the name of a classmate. (Another reason I love this show: gives me an excuse to use the phrase “ne’er-do-well”.) Not coincidentally, this classmate was the teenage son of Zach’s dad’s opponent in the race for State’s Attorney, Glenn Childs. Zach also created a video mocking the third candidate in the State’s Attorney race, while making it look like the video came from Childs.
In the show, hapless Zach’s actions resulted in harm to his father’s campaign: what he thought was a harmless prank was taken by the Childs campaign as a declaration of war from the Florrick campaign. But thanks to a new law on the books in California, the real-life ramifications of such actions may now be even more serious — to the tune of monetary fines and prison time.
Effective January 1, 2011, California Penal Code section 528.5 makes it a crime to impersonate another person online. Specifically, “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 is guilty of a public offense.” Violation can result in a prison sentence of up to one year and a fine of up to $1,000 — plus a civil lawsuit from the aggrieved party. Of course, because our readers are all fine, responsible, upstanding citizens, I’m confident that none of you need to fear this new law. But let’s say you, too, were a dastardly ne’er-do-well (twice in one post!) embarking on a campaign of Internet impersonation. What would you need to know?
First, in order to trigger liability, the purpose of the impersonation must be “harming, intimidating, threatening or defrauding another person” (a limitation which helps the law past muster under the First Amendment, which looks skeptically on laws regulating speech). However, for many crimes (and torts), the law presumes that a person intends the natural and predictable consequences of their actions. In other words, if the reasonable and probable effect of your impersonation is to harm, intimidate, threaten, or defraud, you will probably have a hard time arguing that your intent was something different.
Second, this law has its limits: it only prohibits impersonating an “actual person.” Therefore, impersonating Santa Claus (in the style of one commenter to THR, Esq.’s article on the new law) will not land you in the slammer. (Sorry to any of you who still believe in Santa Claus because — SPOILER ALERT — he’s not an actual person. [Ed. Note: Rachel, how could you?!] At least, unlike this blogger’s mother, I’m telling you after Christmas instead of on Christmas. [Ed. Note: Ouch.] But I digress.)
For that reason, while it’s clear this new law is designed to help combat the harm that is caused to a person who is impersonated online, it is much less clear — notwithstanding the fact that some commentators have dubbed this the “Cyber-Bully” Bill — that this law is well-designed to combat the wide range of types of cyber-bullying. The issue of cyber-bullying has come into the public eye in the last year with a number of high-profile and tragic incidents involving teens and college students. But drafting a law which adequately addresses an ever-changing technology, and the way people use it to harass others, can be tricky.
(Warning, serious non-jokey interlude ahead.)
For example, the new California law would not have applied in one notorious cyber-bullying case, United States v. Lori Drew, precisely because of the “actual person” requirement described above. That case involved a woman who cyber-bullied a former friend of her middle school daughter named Megan Meier. Specifically, in order to find out if Meier was spreading rumors about Drew’s daughter, in 2006 she created a fake MySpace account in the persona of a fictitious 16-year-old boy named “Josh Evans.” Drew, as Evans, engaged in a flirtatious relationship that culminated in “Evans” telling Meier that the world would be a better place without her. That day, Meier tragically committed suicide. A jury convicted Drew of a misdemeanor violation of the Computer Fraud and Abuse Act (CFAA), but the federal judge presiding over the case overturned that conviction on technical legal grounds involving the meaning and scope of the CFAA.
In the aftermath of Drew’s acquittal, many other states including her home state of Missouri have enacted laws to prevent cyber-bullying. But the new California law wouldn’t specifically address Drew’s situation, because while it is clear that Drew impersonated someone online, and that it was credible, and that Meier was harmed, “Josh Evans” is not an “actual person.” The fact remains that Josh Evans was a creature of Drew’s invention. Indeed, the legislative history on the bill states explicitly that it would not have applied in the Drew case, but that it would have applied if Drew had been impersonating a real person.
Ultimately, the issue here comes down to who is the intended beneficiary of the new California anti-impersonation law: the impersonated, or the impersonatee (a non-existent word I just invented to identify a person who is defrauded by an impersonator). In light of the “actual person” requirement embodied in Penal Code § 528, it’s pretty clear that California legislators were thinking about Mike Myers rather than Megan Meier. And that’s fine in its own way: with its robust statutory right of publicity, anti-paparazzi laws, and agency regulations, California has a long and proud tradition of keeping its celebrity population happy with more than just 267 days of a sunshine a year and delicious In-N-Out burgers (I humbly suggest the legendary 16 x 16 — with a Diet Coke, of course). But in an era when those same celebrities are alsocoalescing around a major campaign against teen bullying, we shouldn’t look to this law to help them in their cause.