Bill Targets Cyber-Impersonation

by Alejandro Martínez-Cabrera

Two months ago, a San Jose Mercury News reporter received a profanity-laced e-mail critical of one of her stories. More than a year before, a similar e-mail was sent to a long mailing list of hundreds of Silicon Valley industry, labor, political and community leaders.

The sender of the e-mails appeared to be Carl Guardino, the chief executive of the Silicon Valley Leadership Group, which represents the high-tech industry. The problem: He didn't actually send it.

"This absolutely misrepresented me in a very harmful way," he said. "It was completely out of character and it depicted me in a very bad light."

Guardino was the victim of online impersonation, and he soon found out he wasn't alone - friends, colleagues and relatives had stories of usurped identities and tarnished reputations. Unfortunately for them, the state law on impersonation was written in 1872 and is not equipped to deal with the digital age.

But a bill making its way through the Legislature is looking to change that. Inspired by Guardino's story, state Sen. Joe Simitian, D-Palo Alto, introduced a bill in June that would make it a misdemeanor to maliciously impersonate someone.

If Simitian's bill passes, online impersonations with the purpose "of harming, intimidating, threatening or defrauding" would be punishable with a maximum fine of $1,000 and one year in jail.

But while supporters believe the law urgently needs to be updated to punish and deter malicious impersonators, privacy advocates worry that such legislation might easily cross the line and threaten people's First Amendment rights.
Political commentary

Simitian said his bill is not going after those who create fake Barack Obama Facebook profiles for political commentary, or the likes of Fake Steve Jobs, Newsweek writer Daniel Lyons who poses as Apple's chief executive in his satirical blog.

Instead, the bill is meant to deal with miscreants whose impersonations range from the naughty to the outright sinister.

In recent years, impersonators have tweeted under the names of Maya Angelou, Kanye West and St. Louis Cardinals' manager Tony La Russa, to name a few. Revenge-seekers and pranksters have embarrassed their victims in front of potential employers and created smears that are difficult to remove from the Web. Students have posed as teachers to harass other kids.

In one case in December, a Wyoming woman was raped in her home by a man responding to a Craigslist ad looking for "a real aggressive man with no concern for women" to fulfill a rape fantasy. However, she didn't post the ad - it had been her disgruntled ex-boyfriend, a Marine stationed in California who was posing as her. Similar stories abound, online abuse experts said.

'No recourse'
The Internet "makes it so easy for stalkers and harassers to ruin somebody's life with a few keystrokes, and there's little to no recourse for victims to try and undo the damage," said Jayne Hitchcock, president of the volunteer organization Work to Halt Online Abuse, who was a victim of cyberstalking.

No one seems to know how widespread the problem is, but Hitchcock said she has noted more complaints about MySpace, Twitter, Facebook and e-mail impersonations.

"I probably see it more often than I'd like to through our organization," she said.

But when it comes to addressing the problem, not everybody is convinced Simitian's approach is the best. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, said the scope of Simitian's bill was defined too loosely and could have a negative effect on freedom of speech. For one, she said, the definition of harm needs to be narrowed.

"Harm is a pretty broad term. That could just mean that you undermined a politician's reputation. I'm concerned that the nature of 'harm' is too vaguely defined," she said.

McSherry also expressed concern that the bill would not protect some forms of parody and satire on the Internet that involve impersonation.

For instance, she pointed to the Yes Men, activists that the foundation is representing in a lawsuit filed against them by the U.S. Chamber of Commerce. In October, the group held a fake news conference posing as chamber representatives who promised the organization would no longer lobby against climate-change legislation.

"It was a very effective form of satire that was really useful in provoking some form of debate," McSherry said. "I don't think it's Sen. Simitian's intent to shut down this form of freedom of speech but I believe it's what this bill can do."

Simitian's bill names "credible" impersonators that act without consent, but, McSherry said, "Just requiring that an impersonation is credible is not going far enough to protect the type of political speech I'm talking about."

And even though she supports the spirit of Simitian's bill, Hitchcock questions whether it's enforceable, considering the need to educate law enforcers on online abuse issues and the jurisdictional problems relating to cybercrimes.

"Unless the victim and the harasser are both in California, it's going to need a lot of collaboration between law enforcement agencies and the states. And if (the impersonator) is in another country, good luck. But it's a start," she said.

Hard to enforce
Danielle Keats Citron, a law professor at the University of Maryland who has written extensively about the role of the law and online abuse, believes the proposed law will have challenges based on the enforcement difficulties and the broadness of its interpretation.

But even if the bill in its current form becomes law, Citron said, the statute might have an overall positive effect. At its most basic level, the measure might help change attitudes about what's permissible, she said.

"The legislation is trying to take the lead on this emerging technology that people are abusing, and teaching them how to treat each other," she said. "It's an important point we shouldn't forget."

She added: "But we also have to get the law right."

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