E-personation

E-personation is the impersonation of another person or entity through electronic means. The California legislature recently passed a bill (SB 1411) that will make online impersonation a misdemeanor by updating existing impersonation statutes to include e-mail and social networking accounts. The bill was passed unanimously by the California Legislature and currently awaits the Governor’s signature to take effect.

Under SB 1411, anyone who knowingly and credibly impersonates another through electronic means for the purpose of harming, intimidating, threatening, or defrauding will be subject to a fine of $1,000, or 1 year in jail, or both, as well as a civil claim for damages from the subject of the e-personation. The statute specifically lists starting an e-mail account or social networking account as included in “electronic means.”

Proponents of SB 1411 welcome an additional means of prosecuting online impersonators, specifically those that target children and teens through “cyber bullying.” Opponents of the bill, including the Electronic Frontier Foundation (EFF), feel that the bill is not only redundant, but that it will be used to target unpopular political activism online. According to the EFF, an important tool of these online political activists, is the temporary “impersonation” of political figures and corporations for the purpose of shedding light on their policies and practices. The EFF argues that laws already exist covering defamation and fraud and that SB 1411 is therefore unnecessary.

In addition to existing defamation and fraud laws, California also has two Penal Codes on the books that have been used in situations similar to those covered by SB 1411. California Penal Code §530.5 allows for criminal charges when someone willfully obtains personally identifiable information to use for an unlawful purpose. While this statute may be effective when online impersonation rises to the level of criminal fraud, it has proved unsuccessful in defamation cases since California has repealed its criminal statutes relating to libel and slander. As such, defamation does not qualify as an “unlawful” purpose as required by the statute. California Penal Code § 529, however, makes it a crime to falsely impersonate another in their private or official capacity if during that impersonation, the person

"(1) becomes bail or surety for another party in any proceeding whatever, before any court or officer authorized to take such bail or surety; (2) 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 (3) 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."

Section 529 allows for a broader range of improper activity to trigger culpability and comes with a $10,000 fine, a year imprisonment, or both.