Online impersonation where fraudsters get personal details and account numbers from an individual is a crime of our times, writes KARLIN LILLINGTON

ON THE internet, where, as the old New Yorkercartoon adage goes, no one knows you're a dog, online impersonation is easy.

That’s created a climate that is ripe for exploitation, and in California – often the first mover in new frontiers of the law – new legislation took effect on the first day of the new year that makes online impersonation, or “e-personation”, a specific crime.

Senate Bill 1411 was put forward by state senator Joe Simitian, a Democrat representing Silicon Valley’s epicentre of Palo Alto.

“E-personation is the dark side of the social networking revolution. Facebook or MySpace pages, e-mails, texting and comments on web forums have been used to humiliate or torment people and even put them in danger. Victims have needed a law they can turn to,” Simitian said in a statement as the law came into effect.

He should know. He was a victim himself of an e-mail hate campaign where the perpetrator impersonated him.

Verifying that someone is who they say they are online is difficult. That’s created plenty of opportunity for fast movers on Twitter or Facebook to set up accounts in the name of well-known people and post comments purportedly coming from them.

The issue was significant enough that many of these social networking sites now offer “verified” accounts, so that people know that tweets, or status updates, are actually coming from the real person and not an impostor.

But whatever the travails of the celebrity, the problem of online impersonation has become a serious cyber bullying and cyber crime issue. On the one hand, identity theft, where a person gains personal details and account numbers of an individual and then defrauds them, has become a crime of our times and can be devastating for a person’s credit rating as well as their bank account.

The number of cases is rising in which somebody sets up accounts in the name of another person and then maliciously posts comments and content in an attempt to damage the real person’s personal or business reputation.

In one case cited by a lawyer in San Francisco, a client discovered that an impersonator had created dozens of accounts in her name and was using the accounts to post offensive comments and material in order to harass and stalk her.

San Francisco lawyer Erica Johnstone, who told news site ZDNet that she prosecutes many such cases, welcomed the law, stating that it finally criminalises online impersonation and gives victims a way to pursue perpetrators in the civil courts for damages.

But critics, such as the Electronic Frontier Foundation. say the law is unnecessary, overly broad, and will have the effect of “chilling” free speech because it does not specify exceptions for satire and other forms of humour or criticism. The Bill’s proponents say such issues will be worked out through the courts over time. The issue of whether specialist laws are needed to legislate for the internet is an ongoing debate, says senior lecturer in law at Trinity College, Eoin O’Dell, who has a special interest in internet law.

A decade or so ago, when the internet was relatively new, many legislators felt that traditional laws would not adequately apply and new ones were needed specifically addressing the internet. Then came a period in which that view reversed, and a consensus internationally seem to accept that special laws were not generally needed for the internet, as it was merely a different platform for the same sorts of crimes. Now, says O’Dell, there is again a push to have special rules for the internet.

“But we don’t seem to need such specialist laws. Basic tort doctrine, criminal law and constitutional law will protect both the person defrauded and give grounds for prosecution. So the idea of creating a new cause for bringing a civil case or a new criminal offence seems unnecessary.”

He notes that within California law, the definition of impersonation is very broad, but he is ambivalent about arguments that satire might be adversely affected by such a law. The United States has fairly clear rights to free speech, he says, but at the same time the Californian law is lazy in that it pushes off the hard questions to be worked out by the courts down the line.

While he observes that the California law is probably neither a good nor a bad thing on balance – “it is bringing clarity, but in an unnecessary way” – he argues that existing law should address all the issues adequately in California.

On the other hand, Darius Whelan, lecturer in law at University College Cork, thinks the California law is needed even though he agrees it is “overly broad” and was probably thought up by a legislator wanting to gain a bit of publicity – successfully, as it happens – by addressing a very small gap in the law.

Still, he says, “this area is certainly worth addressing. The internet has incredible possibilities for identity theft, and it is a serious gap with nothing that really focuses on it. I don’t feel the laws are adequate as they are.”

So do we need such a law in Ireland? Whelan feels we do. Many might argue that existing laws are broad enough to address the problem, he says, “but there is a gap regarding the criminal context. This makes the argument stronger that you need more specific laws regarding cyber crime.”

O’Dell disagrees. “Our position right now is structurally the same as in California, minus this legislation. There are remedies that can be used without turning internet service providers into the policeman of the internet, for example.” His concerns are not so much about “the level of detail that might be needed for such a law, as with the very idea” of needing such a law in the first place.

CRIME PREVENTION: WHAT'S IN THE CALIFORNIA LAW?

The piece of legislation is actually very brief, with fewer than 300 words in its main section.

It states:

There is a "credibility requirement" that a person must have "knowingly and without consent credibly" impersonated another online;

An impersonation is considered credible if a third party would "reasonably believe" the person to be who they say they are;

Online impersonation includes "opening an e-mail account or an account or profile on a social networking internet website in another person's name";

The perpetrator must do so "for purposes of harming, intimidating, threatening or defrauding another person"

The crime is punishable by a fine of up to $1,000 and/or a prison sentence of up to a year, and the victim can bring a civil case for damages.