The wild west of the internet just got a little less wild, though it remains decidedly west.  California’s SB 1411 goes into effect today, making it a crime for you to be me (and vice versa).  It could cost your friendly neighborhood sockpuppet $1000 and a year in jail.  It remains unclear whether there will be special jails for sockpuppets, given that they can slip through the bars.

The  law prohibits impersonating someone else online.

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.

As is generally the case, intent will be established backward, presumed by the conduct engaged and the result produced.  We can’t see into a person’s mind, obviously, so we pretend that people intend the natural consequences of his act as seen from the outside.  Nothing new here.

The four purposes enumerated, “harming, intimidating, threatening, or defrauding,” cover the whole spectrum of possibility, largely due to the vagary and breadth of the initial work, “harming,” with the following words consumed within it.  The use of such a broad catch-all enables prosecutors to manufacture harm out of anything.

“Your honor, the defendant’s outrageous sockpuppetry has cause the victim to lose sleep, feel badly about himself, refuse to wear clothing that makes him appear pear-shaped and no longer desire to eat his favorite confection, bon-bons, all to his terrible harm.  The defendant is an animal and must be punished!”

The balance of this new crime comes not from the breadth of its coverage, but its requirement that the impersonation is “credible.”  This is defined as, “if another person would reasonably believe, or did reasonably believe,” a hybrid definition that incorporates the reasonable man standard with the dumbest moron on the internet standard.  My mother-in-law still secretly believes she’s the heir to a Nigerian kingdom, as do thousand of others.  Despite unanimous disagreement, she believes she’s reasonable.

In time, there’s a fairly decent chance that this will change, but at the moment, it seems impossible to reach a reasonable man consensus on the question of credibility.  For those who are digital natives, their grasp of internet use is fundamentally different than fertile octogenarians. 

Does this leave it to judge as gatekeeper (OMG) to decide credibility, or the median age of the jury?  One person’s joke is another’s sleepless night.   Do you truly believe that a jury can’t be constructed that believes impersonation is what makes  Keanu Sad?

The statutory prohibition makes no pretense of taking into account issues of free speech.  As Michael Arrington at  TechCrunch states:

Free speech issues, including satire and parody, aren’t addressed in the text of the bill. The courts will likely sort it out. Hopefully without my direct participation.

While we’re all, no doubt, in agreement on that last sentence, this isn’t quite the best practice for crafting laws that pass constitutional muster.  No decent satire or parody works without a bit of sting; that would be “harm” for those of you who don’t think with a prosecutorial mindset.

And yet, there’s a certain benefit to the creation of this California law that wouldn’t have occurred to me six months ago.  In light of the conviction of  Raphael  Golb in New York by cobbling together a fraud out of existing statutes and ignoring the elements that don’t fit digital reality, we’ve seen the harm that can happen when crimes are manufactured in the trenches rather than legislative hallways. 

At least SB 1411 tries to craft some parameters to establish the elements of the offense.  In the absence of such an effort, we can end up with a crime with no parameters at all.  Without elements, even vague elements and criteria that depend largely on how little one knows about trends online, there is something to argue about and again.  Without them, we’re just pissing in the wind.

Efforts to craft laws to address some of the nasty and destructive things people can do online are here, and will continue to grow.  There are people who are using the internet to harm others, to steal from others, to cause terrible and unjustifiable harm to others.  This isn’t a joke, and it is certainly happening.

That doesn’t mean that it’s easy to do.  The target is constantly moving, and even a deep appreciation of life on the internet, something that few legislators or judges have, won’t necessarily make one adept at putting into meaningful words the things that should constitute a crime.  Promises that prosecutors will exercise discretion in its enforcement bring little comfort, even though we can all agree that if we can’t trust prosecutors, who can we trust?

Expect a rough patch ahead on the invention of new laws creating internet crimes.  Perhaps this will last a decade.  Maybe forever.  Until technology stands still, there will be people putting it to use criminally harming others, giving people with whom they disagree a good smack, and just having some fun. 

For the time being, make sure that you don’t pretend to be anyone you’re not on the internet.  Or at least make sure your internet musings don’t find their way to California.  Certainly, that can’t be too difficult to accomplish.