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

Legal Issues

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.

Filed Under: cda 230, criminal defamation, defamation, extortion, identity fraud, identity theft, kevin bollaert, publicity rights, section 230