California Court Finds Minor Who Accessed a Facebook Account and Impersonated User Guilty of Identity Theft
Ashok Chandra | Bloomberg Law
The California Court of Appeals affirmed a juvenile court decision finding that appellant committed identity theft when he accessed another person’s Facebook account, altered her profile, and posted obscene messages and comments from the account. The court observed that the appellant acted “willfully” and with an “unlawful purpose,” satisfying Cal. Penal Code § 530.5(a).
Appellant Accesses and Alters Victim’s Facebook Profile
Appellant Rolando S. received a text message detailing the password of S.W.’s Facebook account. Rolando gained access to the account and, using her name, sent messages to two of the victim’s friends and altered her profile in a vulgar manner. The victim found out about the messages and informed her father, who called the police. Rolando admitted to the police that he posted the messages on S.W.’s Facebook account. A juvenile petition was filed, and Rolando was charged under Cal. Penal Code § 530.5(a) for obtaining another person’s personal identifying information and using it for an unlawful purpose. The juvenile court found Rolando guilty and, at the disposition hearing, refused to reduce the crime from a felony to a misdemeanor. The court ordered Rolando committed to a juvenile academy for six months to a year.
Appellant Acted Willfully in Accessing Account
Rolando argued that because he did not seek the password and instead received it passively via text message, he did not “willfully” obtain the password in accordance with the statute. However, the court noted that Rolando obtained the password and used it to access the victim’s Facebook account instead of deleting or ignoring the text message. The court observed that “willfully,” as used in Cal. Penal Code § 530.5(a), “implies simply a purpose or willingness to commit the act, or make the omission referred to.” Rolando at 4. The court found that because Rolando accepted the password information, even though it was allegedly unsolicited, he “willfully” obtained the information with the knowledge that he would use it in the future. Further, the court observed that Rolando “willfully” obtained access to the victim’s Facebook account and that he changed the Facebook password “dozens of times over several weeks and it was only after [the victim and her parents] deleted her email account that they were able to regain control over her Facebook account.” Id. at 5. The court thus found that his actions satisfied the “willful” prong of the statute.
Victim’s Information Used for Unlawful Purpose
Appellant argued that he did not use the victim’s information for an “unlawful purpose” within the meaning of Cal. Penal Code § 530.5(a). He claimed that at the most, he “possibly defamed” the victim, but that such action would not satisfy this element of the statute. Rolando at 5. Respondent countered that Rolando’s actions were unlawful under Cal. Penal Code § 647.6(a)(1), which criminalizes “annoying or molesting a child.” The court disagreed with respondent, noting that a perpetrator under Section 647.6 must be “motivated by an unnatural or abnormal sexual interest” in the victim. Id. at 6 (internal quotations and citations omitted). Respondent argued that Rolando posted three sexually explicit comments from the victim’s account. However, the court found that because he never attempted to contact the victim before and because he had a girlfriend, there was no evidence to show that Rolando’s actions had been motivated by a sexual interest.
Rolando further argued that when drafting Section 530.5, the legislature intended to limit “any unlawful purpose” to criminal conduct. The court, however, disagreed, noting that in the year after the California legislature passed Section 530.5, it passed an amendment expanding the scope and penalty for the offense, at which point the “for any unlawful purpose” language was added. Appellant contended that this language was added “to protect victims of identity theft.” Id. at 8. The court observed that the Senate subcommittee noted that the language was intended “to expand the crime of identity theft to include use of personal information for any unlawful purpose.” Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1374 (1997-1998 Reg. Sess.). Before the Assembly, the legislature determined that an objective of the bill was to “[e]xpand personal identity theft to include willfully obtaining another person’s information for ‘any unlawful purpose.’” Assem. Floor Analysis, 3d Reading of Sen. Bill No. 1374, as amended Apr. 21, 1998. The court observed that prior to the bill’s enactment, identity theft was a misdemeanor crime, and that by adding “for any unlawful purpose,” the legislature expanded the “range of unlawful purposes for which a perpetrator could be found guilty of committing identity theft and specifically denoted the non-exclusive nature of the list of unlawful purposes set forth in the statute.” Rolando at 9. The court noted that in the statute, the legislature chose to use the term “unlawful purpose” instead of “crime.” While “[c]rimes are strictly creatures of penal statutes,” the court explained, “unlawful conduct includes acts prohibited by the common law or nonpenal statutes, such as intentional civil torts.” Id. at 11.
“Libel,” the court pointed out, “is an intentional tort” consisting of “false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or causes him to be shunned or avoided.” Id. at 12. The court noted that Rolando “practically concede[d]” that he defamed the victim in arguing that the prosecution only proved that he “humiliated, embarrassed, and defamed” the victim when he wrote the sexually explicit comments on her Facebook wall. Id.
The court observed that even if libel did not constitute an “unlawful purpose,” appellant’s criminal conduct under Section 653m of the California Penal Code—which states that “[a]ny offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient”—could satisfy the “unlawful purpose” element. The court found that Rolando’s comments posing as the victim, as well as his alteration of her profile, constituted criminal conduct under Section 653m and would fulfill the “unlawful purpose” element of Section 530.5 even if intentional torts would not. Thus, the court affirmed the district court’s judgment.
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