Growing List of States Banning E-Personation Adds California
A new California law against online impersonation advances a little-noticed national trend that in recent years has brought statutes on the subject to five states with almost 30 percent of the U.S. population, said the National Conference of State Legislatures. An aide to the sponsor of a 2009 Texas law said it responded to a problem that continues to grow. He and other observers said additional states may enact similar statutes. Supporters call civil-libertarian critics wrong in objecting that older laws make the new ones unnecessary and that the e-personation laws threaten social satirists such as the Yes Men hoaxsters.
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SB 1411 by Sen. Joe Simitian, D-Palo Alto, took effect Saturday. It makes malicious impersonation punishable by as much as a $1,000 fine, a year in jail or both, as well as making it a basis for civil lawsuits. “My hope is that people who might have thought of this as a prank now will know that it is against the law and has serious consequences,” Simitian said in an interview. The law follows those in New York, Massachusetts and Hawaii, as well as Texas.
"Online impersonation is rampant in middle schools and high schools,” said San Francisco lawyer Erica Johnstone, who specializes in online reputation cases. “This conduct is really harmful,” and “it carries more weight when you can say this is also a crime. It drives social norms.”
Corynne McSherry, the Electronic Frontier Foundation’s intellectual property director and an attorney for the Yes Men, said she’s waiting to hear of legal action under an impersonation law to challenge under the First Amendment. “We need a victim first,” she said. “I'm watching, and I'm pretty sure we'll hear about it.” Simitian and Sean Cunningham, who was the chief of staff to the sponsor of the Texas law, HB 2003, said their measures are drawn narrowly enough to exclude parody and satire.
The issue has been fueled by the explosive growth of social networks and what Johnstone called “heart-breaking stories of cyber-harassment,” notably the Lori Drew case involving a MySpace hoax and the suicide of Megan Meier, said observers of the legislative activity and participants in it. Cunningham acknowledged that the Texas law wouldn’t have applied to the Drew case because it, like the California law, doesn’t apply to activity in the name of a fictitious person. He and Johnstone said the limitation is intended to keep legislation narrow and avoid First Amendment problems.
The Texas law makes a third-degree felony of creating a Web page or posting comments on a commercial networking site, but not other Web activity, using “the name or persona of another” to do harm. Similar behavior using an electronic message is the same kind of felony only if intended to produce a response from emergency personnel. Otherwise it’s a class A misdemeanor. A 2010 Massachusetts law deals with Web impersonation only as a category of behavior covered by a school bullying ban. A misdemeanor law in New York covers all electronic communications in a broad ban on impersonations, and one in Hawaii covers them in a law restricted to harassment.