Analysis: California's Online Impersonation Law, Effective January 1

Hey, in Texas it's a third-degree felony. But, mystifyingly, that's only for social networking sites.

For a long time, online impersonation was mainly thought of as identity theft, or as something done occasionally by pathetic exes or total dicks, but it happened mostly when your credit got hijacked and you found yourself the proud owner of a $5K phone bill and a receipt for swampland in Florida. This past year saw a sharp spike in a much more personal kind of impersonation: when people abuse the anonymity of the Internet to cyber-harass individuals.

It was only a year ago that a California based Marine posed as his ex-girlfriend on Craigslist and via email to set her up for a brutal rape in her own home. Sentenced to 60 years, the punishment was clear.

Most cases are not this extreme, and they go unpunished. SB 1411 is being hailed by those facing a tsunami of legitimate cyber-harassment cases that come up empty-handed for legal recourse to stop, deter, or create consequences for impersonation attacks.

It is also getting a boatload of wariness as to how it might relate to protected speech. Before the law was signed, EFF's Corynne McSherry told BBC she didn’t think SB 1411 included enough protections for satire and parody – especially in the era of political impersonation as protest, a la The Yes Men.

The Harm of Malicious Impersonation: We're Gonna Need A Bigger Boat

San Francisco lawyer Erica Johnstone handles a lot of these cases. Johnstone, a partner at Ridder, Costa & Johnstone LLP., litigates online issues regarding harassment, the right to privacy, identity theft and impersonation, and defamation. She explains,

"Almost all cyber-harassment goes unpunished, with devastating consequences to the victims, including loss of reputation, shame, mortification, hurt feelings, pain, suffering, inconvenience, loss of business and education opportunities, and emotional distress."

Dr. Keely Kolmes, Psy.D., the pioneer of Digital and Social Media Ethics for Psychotherapists, cautions about the potential harms of online impersonation.

"This is a form of harassment and the emotional distress may lead to anxiety, depression, sleep disturbances or other disruptions to a person's well-being. It could significantly impair a person's daily functioning in school, work, or relationships. It can also have an effect on someone's social support system if others don't recognize that the individual is being impersonated."

The amount of cases is becoming overwhelming, and predictably the victims are mostly women – Jane Does.

In one (milder) case, the defendant stole Johnstone's client's identity and created fraudulent online user accounts under the client's name on dozens of websites like Facebook, YouTube, and CNN.

Using these fake accounts, the defendant would pose as her client online for the purpose of repeatedly publishing sickening and offensive comments – as part of the overall strategy to defame, harass, terrorize and stalk her.

Johnstone tells us, "SB 1411 is important because it makes impersonation a crime, creates a civil cause of action victims can use to defend themselves against alleged impersonators, and 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."

Can An Impersonation Law Really Help?

SB 1411 is the creation of Sen. Joe Simitian (D-Palo Alto), and was signed off on by Governor Schwarzenegger last September. It targets impersonations with the purpose “of harming, intimidating, threatening or defrauding” victims through the Internet or other electronic means.

Simitian drafted the law after someone used his email address for a profanity-filled email campaign to his business and government associates – and later, to a reporter – and got away with it scot-free.

Yet even when malicious impersonators get caught, they usually still get away with it. That’s what makes SB 1411 interesting: it keeps perpetrators from being "judgment proof" and creates real-world consequences for online harassment.

And being "judgment proof" is what has kept Johnstone's Jane Does as victims, while their (known) harassers got away with it. She explains,

"SB 1411's criminal component is a strong deterrent for judgment proof defendants – that is, for defendants who cannot adequately compensate the victims of their impersonation. Perpetrators attempt to evade the civil justice system by ignoring lawsuits brought by their victims and forcing default judgments (because, surprise, these perpetrators typically have no assets). Unlike monetary judgments, which may be difficult to enforce, perpetrators can’t hide from law enforcement with impunity – the criminal aspect of SB 1411 means that those who impersonate others online will face real-world consequences for their actions."

Generally, impersonation victims usually can't afford to use the legal system to make creeps stop abusing them online. This law changes that, too.

Johnstone elaborates, "SB 1411 sends a message to cyber bullies that this type of malicious behavior will not be tolerated by the law simply because the costs of litigation may make it less likely that the impersonated will vigorously defend their rights. In this way, SB 1411 places the costs of litigation squarely where they belong – on the party whose impersonation gave rise to the suit in the first place."

But What About The Yes Men?

Colette Vogele is working with Johnstone on co-founding a non-profit organization to educate the public and lawmakers on these issues, and provide tools to identify and confront the problems of online harassment. Vogele is a Non-Residential Fellow with Stanford Law School's Center for Internet and Society, and handled an exploding number of cases on online harassment and privacy cases while she was in private practice in California.

Vogele has an eye on all the issues around SB 1411, too. "I think the potential restriction on speech will be interesting, and anti-slapp statutes may also take on importance for first amendment-protected speech that is chilled as a result."

At the same time, Vogele is optimistic. "The impersonation law, by including the criminal enforcement mechanisms, will help victims of impersonation have some path to justice."

Sen. Simitian claims that his law is mindful about protecting the free speech rights of those who impersonate for parody, satire and political speech, and only for those who impersonate with "harmful" intent.

How harm is determined, remains to be seen.

Tell us in the comments: Do you think this law will work? Could it have deterred previous impersonation crimes like the MySpace suicide or the Craigslist rape plot case?