California has just passed Senate Bill 1411 Online Impersonation which goes into effect January 1, 2011, as the operator of SacramentoGrapevine.com & SanFranciscoGrapevine.com I am dismayed at Senator Simitian for this not only poorly written Bill but also stupid Bill.
Let me take you on a few examples; What constitutes "harming, intimidating, threatening or defrauding another person" ? As all of these terms could be and are very subjective.
1) Would a person who say created a profile in the name of their boss and made mocking statements such as "Haha yesterday I scolded 3 of my employees for wearing jeans to work and today I came into work wearing pink denim shorts". Would this be considered "harming, intimidating, threatening or defrauding another person" ?
2) Would a person who say created a profile in the name of Tony Hayward the ex CEO of BP Oil and made a posting which stated, "To all you stupid uneducated Americans living on the gulf coast, whilst you are now without a way to make a living and purchase food for your family I am living it up on my 100' sail boat on the French Rivera drinking a $300.00 bottle of Merlot with 2 hookers". Would this be considered "harming, intimidating, threatening or defrauding another person" ?
3) Would a person who say created a profile in the name of a California or US Senator and made a posting which stated, "I just had a $500.00 dinner and wine now off to the theater all complements of Energy Company Lobbyist who wants to raise your rates by 30%, I think I will support the raising of your rates just because I love $500.00 dinners and wine which are free. Would this be considered "harming, intimidating, threatening or defrauding another person" ?
4) Would a person who say created a profile in the name of "Bill Smith of Sacramento, CA" which stated "I am a wife cheater and drug user", when there are over 50 persons in Sacramento, CA and one of these persons named "Bill Smith of Sacramento, CA" decided to sue in court. Would this be considered "harming, intimidating, threatening or defrauding another person" ?
5) Further there is no reference in this Bill to the Federal Communication Decency Act which provides immunity to the websites where there is 100% user content in this Bill.
6) Additionally there is no reference in this Bill which is now law as to how or if the website owners will be required to turnover any records to a real person or company.
This law was very poorly written and wonder what Social Media websites were contacted for any input as I know I was not.
See the full text of the Bill below.
BILL NUMBER: SB 1411 CHAPTERED BILL TEXT CHAPTER 335
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2010
APPROVED BY GOVERNOR SEPTEMBER 25, 2010
PASSED THE SENATE JUNE 1, 2010
PASSED THE ASSEMBLY AUGUST 12, 2010
AMENDED IN SENATE MAY 11, 2010
AMENDED IN SENATE APRIL 28, 2010
AMENDED IN SENATE MARCH 25, 2010
INTRODUCED BY Senator Simitian
FEBRUARY 19, 2010
An act to add Section 528.5 to the Penal Code, relating to impersonation.
LEGISLATIVE COUNSEL'S DIGEST
SB 1411, Simitian. Impersonation: Internet.
Existing law makes it a crime to falsely impersonate another in either
his or her private or official capacity, as specified. Existing law also
makes it a crime to knowingly access and, without permission, alter,
damage, delete, destroy, or otherwise use any data, computer, computer
system, or computer network in order to devise or execute any scheme or
artifice to defraud, deceive, or extort, or wrongfully control or obtain
money, property, or data. For a violation thereof, in addition to specified
criminal penalties, existing law authorizes an aggrieved party to bring a
civil action against the violator, as specified. This bill would provide
that any person who knowingly and without consent credibly impersonates
another actual person through or on an Internet Web site or by other
electronic means, as specified, for purposes of harming, intimidating,
threatening, or defrauding another person is guilty of a misdemeanor.
The bill would, in addition to the specified criminal penalties, authorize
a person who suffers damage or loss to bring a civil action against any
person who violates that provision, as specified. Because the bill would
create a new crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies
and school districts for certain costs mandated by the state. Statutory
provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for
a specified reason. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS
FOLLOWS: SECTION 1. Section 528.5 is added to the Penal Code, to read:
528.5. (
a) Notwithstanding any other provision of law, 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 punishable pursuant to subdivision
(d).
(b) For purposes of this section, an impersonation is credible if
another person would reasonably believe, or did reasonably believe, that
the defendant was or is the person who was impersonated.
(c) For purposes of this section, "electronic means" shall include opening
an e-mail account or an account or profile on a social networking Internet
Web site in another person's name.
(d) A violation of subdivision (a) is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.
(e) In addition to any other civil remedy available, a person who suffers
damage or loss by reason of a violation of subdivision (a) may bring a
civil action against the violator for compensatory damages and injunctive
relief or other equitable relief pursuant to paragraphs (1), (2), (4), and
(5) of subdivision (e) and subdivision (g) of Section 502.
(f) This section shall not preclude prosecution under any other law.
SEC. 2. No reimbursement is required by this act pursuant to Section 6
of Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within the
meaning of Section 17556 of the Government Code, or changes the definition
of a crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
