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New Recourse for Protecting Kids from Cyber Impersonation— California’s SB 1411

iKeepSafe thanks our friends at Deanna J. Mouser, Partner, Atkinson, Andelson, Loya, Ruud & Romo for helping us  understand this new California legislation that prohibits internet impersonation. This is great news for parents and educators, since schools are particularly vulnerable to this type of attack. Read more from the experts:

School administrators have a new tool to combat the increasing challenges of cyberbullying and other difficulties resulting from detrimental use of the Internet, at least where those challenges are created by a student pretending to be another individual. The California Legislature has enacted legislation which provides a means whereby individuals and law enforcement can address harmful and threatening use of the Internet based on an individual impersonating another person.

Most schools have experienced or heard of a situation where a student impersonates another student or where a student impersonates a principal, teacher, or coach on the Internet. Such impersonation is seldom flattering and is often demeaning, humiliating, demoralizing, upsetting, or harassing. However, since impersonation is typically performed off-campus and without the use of school technology, free speech principles often limit what schools may do to curtail such conduct. Specifically, schools may impose formal discipline on students who impersonate others off-campus if there is a sufficient connection between the speech and the school, and if the speech causes or is reasonably likely to cause a "substantial disruption" to school activities. Such limitations often leave the victims of impersonation feeling disregarded and helpless.

While schools are still bound by free speech principles, California law now affords law enforcement and individual victims with remedies to address unlawful impersonation. Effective January 1, 2011, Penal Code section 528.5 provides for criminal punishment and a civil law remedy for impersonating another person on the Internet for purposes of harming, intimidating, threatening, or defrauding another person: "[A]ny 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 by a fine of up to $1,000.00 and/or imprisonment in a county jail up to one year. Other electronic means includes "opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name." "[A]n impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated."

Individual victims of such tactics may also sue for money damages and other relief in a civil action against the perpetrator. Penal Code section 528.5(e) provides a civil remedy of compensatory damages, injunctive relief, or other equitable relief under Penal Code 502(e) (1), (2), (4), and (5) and (g).

With the passage of Penal Code 528.5, schools should take this opportunity to educate students about this new law and the risk of criminal punishment for impersonating others on the Internet. Through updates in the District or school newsletter, emails, or website, the school should encourage parents to talk to their children and monitor more vigilantly their children’s use of computers since the parents have a lot to lose-monetary damages, computer forfeiture, attorney’s fees and punitive damages. Monetary recovery can be sought from the parents of the student because the minor’s conduct is imputed to the parent or legal guardian having control or custody of the minor under Civil Code Section 1714.1. (Penal Code section 502 (e) (1).) The perpetrator may also forfeit his/her computer under 502(g) and/ or his/her parents’ computer under 502.01(a)(1). The victim can also recover attorney’s fees and punitive damages under Penal Code section 502(e) (2) and (4).

In addition to educating students and parents about this new law, schools and Districts should take this opportunity to initiate or continue a discussion within the educational community about how to effectively educate students about appropriate online behaviors. Schools may also want to examine their acceptable use agreements, technology use policies, and annual parent notices in order to ensure that they are up-to-date and address issues like impersonation, social networking, bullying, and sexting.