How California's Identity Fraud Law Has Been Interpreted To Criminalize Defamation, Publicity Rights Violations And More

from the yikes dept

Eugene Volokh has a somewhat terrifying look at how very broad interpretations of California's identity fraud law, California Penal Code § 530.5(a) has been so broadly interpreted by the courts that it, in effect, creates a crime out of things that were normally considered, at best, civil offenses. This includes defamation, publicity rights infringements and disclosure of private facts. He discusses a few cases, but focuses on a key one that we've mentioned: the state of California's recent legal win over Kevin Bollaert, a revenge porn creep. In our writeup, we were mainly concerned with how the ruling seemed to run against Section 230's protections, but as Volokh makes clear, it's much, much worse than that.

As Volokh notes, among the charges that Bollaert was found guilty over, there was the § 502.5(a) claim of identity theft. And, he points out, nothing in the ruling limited it to revenge porn or extortion. It was just "identifying information" for the purpose of committing a tort, which suddenly becomes a criminal offense:

But nothing in Bollaert’s § 530.5 discussion was limited to revenge porn, or to extortion.

Say, for instance, that Kendra Schmollaert, Kevin Bollaert’s second cousin, has a blog with a couple of thousand readers. She publishes a blog post that mentioned an acquaintance’s formerly private sex scandal (or medical problem) and gives the acquaintance’s name. That may well constitute the tort of disclosure of private facts, and maybe Schmollaert should be liable for that. (I think the tort is too broad and vague to be constitutional, but most courts disagree with me on that.) But, to her surprise — and, I suspect, to the surprise of most media lawyers — a prosecutor decides to charge Schmollaert criminally. Guilty!

  1. Schmollaert willfully published the aquaintance’s “identifying information” — the full name, and possibly some indication of location (e.g., if Schmollaert says the acquaintance is Schmollaert’s neighbor).
  2. Schmollaert did so with the purpose of committing a tort, namely the disclosure of private facts. (True, Schmollaert wasn’t doing this just for the sake of committing a tort, but neither was Bollaert — Schmollaert wanted to tell an interesting story, or maybe expose an acquaintance whom Schmollaert disliked, while Bollaert wanted to make money, and both purposefully used people’s identifying information as a means of accomplishing that goal.)
  3. Schmollaert didn’t reveal any nude photographs — but nothing in § 530.5(a) says anything whatever about nudity, or about photographs; as the courts have interpreted the statute, tortious disclosure of private facts is enough.
  4. Schmollaert also wasn’t impersonating anyone — but neither was Bollaert.

Or say that Schmollaert instead starts selling T-shirts that depict photographs of celebrities, with captions that give the celebrities’ names. Under California law, that’s a tort, both statutory and common-law, and might lead to liability. But again Schmollaert also turns out to be guilty of a crime:

  1. She willfully published the celebrities’ “personal identifying information” (“full names, … as well as the … photographs themselves.”
  2. She did so with the purpose of infringing the celebrities’ right of publicity.
That's... crazy. Criminalizing defamation and publicity rights infringement by broadly interpreting an identity fraud law seems very, very problematic. As Volokh notes again, it seems extra troubling that this seems to have happened without any real legislative discussion or deliberation. Again, these things may be civil offenses, but to turn them into criminal offenses is a situation that can and will be abused. Not many people will cry for Kevin Bollaert, but the precedent this sets is potentially terrifying:
I don’t think the California Legislature was trying, with § 530.5, to so broadly criminalize tortious speech. But that’s how California courts have interpreted the statute.

And this also helps show why many commentators — myself included — criticize proposed statutes based on the possible scope of their broad and vague language, rather than just focusing on the particular problem that led to the proposal. Once a statute is enacted, prosecutors will often push them to the limits of the language, especially when the defendants are bad people doing bad things (e.g., Bollaert’s revenge porn blackmail racket). And courts will often (not always, but often) read the language broadly. The story of § 530.5 is a classic example.
It remains to be seen how widely this gets abused, but it is certainly a big concern.

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  • icon
    Mason Wheeler (profile), 29 Jul 2016 @ 1:03pm

    True, Schmollaert wasn’t doing this just for the sake of committing a tort, but neither was Bollaert — Schmollaert wanted to tell an interesting story, or maybe expose an acquaintance whom Schmollaert disliked, while Bollaert wanted to make money, and both purposefully used people’s identifying information as a means of accomplishing that goal.

    That's stretching things a little. Bollaert was doing this for the sake of committing a tort, because the way he wanted to make money involved committing a tort as an integral part of the business model.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 29 Jul 2016 @ 1:29pm

    It remains to be seen how widely this gets abused, but it is certainly a big concern.

    I'll risk a guess: a whole freaking lot. There are plenty of idiots all around that will use whatever means to destroy the lives of people they don't like for whatever reasons (see SLAPP lawsuits) but why just ruin them financially when you can put them in jail? Not to mention this excellent Government that is not vindictive at all against those that disagree with it, much less those who expose wrongdoings.

    So, yeah, a whole freaking lot.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 1 Aug 2016 @ 6:39am

      Re:

      Given that the definition of celebrity is a bit vague, and someone can become a celebrity for all sorts of reasons, wouldn't this mean that if, say, a police department released someone's identifying information (name and photo/mug shot) in a press release, they would be committing a criminal act in California unless they had permission from the person to do so?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2016 @ 2:05pm

    What's wrong with having some privacy?

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 30 Jul 2016 @ 6:17am

      Re:

      Nothing. Overbroadly applying laws sideways to punish privacy invasion is, as always, doin' it rong.

      This could lead to fun things like, oh, say some complete waste of skin does something like doxxing and revenge porn or what have you on thousands of people. One of those victims discovers who this is and writes something up exposing the person who is doing this, revealing things that qualify as private information. And of course they are doing this with intent to hurt the person, not merely to warn others. Guess who is now liable under the law, as it is being applied?

      reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 29 Jul 2016 @ 2:17pm

    Linda Ellis and Matthew Chan

    My Mr Volokh...why make up a hypothetical when there's a real situation you can use.

    Linda Ellis, of "The dash" infamy, had here home address revealed on Matthew Chan's website. Would that situation have lead to criminal liability? In spite of the truth of that information?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jul 2016 @ 4:50am

    Give California back to the Mexicans.

    reply to this | link to this | view in chronology ]

  • identicon
    Unanimous Cow Herd, 30 Jul 2016 @ 9:02am

    Sounds to me like..

    a prosecutor is up for re-election. Wish there was a way you could publicly shame him for this without being prosecuted.

    reply to this | link to this | view in chronology ]

  • identicon
    doxxing_good, 12 Aug 2016 @ 7:33am

    Free Speech

    All part of the War On The First Amendment of The U.S. Constitution. Expect it to only get WORSE, if Shillary Clinton becomes POTUS.

    reply to this | link to this | view in chronology ]


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