Spring 2010 blog pic

A new California law has gone into effect, which imposes criminal liability on:

any person who knowingly and without consent credibly impersonates another person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person.

Any person found guilty of violating this law faces civil and criminal (misdemeanor) liability — fines up to $1,000 and imprisonment of one year. Additionally, the new law “provides for attorney’s fees, which are critical in terms of extending protection to those who may be otherwise unable to afford to enforce their rights.”

While many have concentrated on the ramifications that this new law will have on those that have created celebrity impostor profiles on social networking sites such as Facebook and Twitter, this law targets only those who create such sites with the requisite intent (i.e. malicious intent). In fact, it is the opinion of Los Angeles entertainment lawyer Alonzo Wickers that “doing an impersonation that’s clearly humorous and designed to mock or ridicule. . .a celebrity” is not criminalized by this new law. Additionally, Mr. Wickers stated that such speech would be afforded “strong First Amendment protection.”

Moreover, California lawmakers (most notably State Senator Joe Simitian, the bill’s author) have adamantly stated that this law has a much broader purpose — to combat cyber-bullying/cyber-harassment, which has received much attention as of late. In particular, this law was enacted to allow victims of legitimate cyber-harassment crimes that lack a fraud component required by identity theft statutes to seek redress and create consequences for such harmful impersonation attacks. San Francisco lawyer Erica Johnstone explained that “almost all cyber-harassment goes unpunished, with devastating consequences to the victims, including loss of reputation, shame, mortification, [and] hurt feelings.”

The problem of cyber-harassment was brought to the attention of State Senator Simitian by one of his constituents, Mr. Guardino (president and CEO of the Silicon Valley Leadership group), who was the target of a smear campaign that involved hacking into Mr. Guardino’s e-mail and sending illicit emails in an attempt to make him look bad. Angered that there was no recourse for this attack upon his hard-earned reputation, Mr. Guardino lobbied for legislative action, which ultimately brought about the new law.

Notwithstanding the argument in support of the law by State Senator Simitian and others that harmful impersonations, such as those launched upon Mr. Guardino and others similarly situated need to be deterred, First Amendment rights groups fear that this new law “could be used to put the lid on free speech.” More specifically, a spokesman for the Yes Men, a group that parodies powerful corporations, has openly professed fear that “corporations and their political cronies” will use “this law to attack activists who are truly exercising free speech.” Furthermore, a spokesperson for the Electronic Frontier Foundation (EFF) told BBC that the organization was concerned that the law lacked sufficient protection for political parody and satire.

At this time, it is unclear how this possible First Amendment issue will be settled. The borders of this new law will continue to remain unclear until it is litigated.

Christina Santana

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