Back in 2010, the California legislature passed and Gov. Jerry Brown signed a law making it illegal to impersonate individuals 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).
The law quickly became relevant to Korpi v. Collier which involved a domain registered as part of a local school board election.
Julie Collier was considering running for the school board, but ultimately decided not to. Assuming it was likely she would run, Chris Korpi registered the domain name JulieCollier.com and then redirected the domain’s visitors to the websites of Collier’s potential opponents in the election.
Collier sued. Korpi asked that the lawsuit be tossed out under California’s anti-SLAPP law, arguing that he was well within his rights under the First Amendment to register the domain name and redirect it to Collier’s potential opponents. The judge hearing the case refused to throw the case out, ruling that Korpi’s actions could potentially constitute fraud.
Korpi appealed the judge’s decision, and the EFF asked–but was ultimately denied–the appeals court to allow it to file an amicus brief defending Korpi’s right to register the domain and opposing California’s anti-online impersonation law as unconstitutionally vague.
The trial judge, however, found that Korpi had not exercised his First Amendment rights because he did not comment on any of the candidate’s qualifications. Korpi appealed the denial of his SLAPP motion, and that’s when EFF decided to weigh in, because of the important speech issues at stake.
Our amicus brief points out that the act of registering and directing a domain name is pure speech. By registering and directing the domains, Korpi claims he was saying “Hey Julie Collier supporters! Consider these candidates instead!” In contrast, Collier alleges Korpi’s message was “Julie Collier supports these candidates.” Either way, Korpi was communicating a political message. In an offline context, everyone would immediately recognize Korpi’s actions as an exercise of First Amendment rights.
EFF also argued in its brief that the state’s e-impersonation statutes are unconstitutional because they are vague, overbroad and content-based restrictions on speech that fail to meet strict scrutiny. They don’t even require that anyone have suffered any significant harm because of the impersonation. Of course, there are many important and valid uses of impersonation, and many of these uses require that the audience be at least temporarily deceived as to the speaker’s identity.