Posting Harmful Information On The Internet

California Penal Code section 653.2(a)

Under Penal Code section 653.2(a), you could be convicted of a misdemeanor if the prosecutor can establish the following elements:

1. you electronically/digitally distributed, transmitted, published, publicized, e-mailed, hyperlinked, or otherwise enabled the downloading of personal ID info, such as a digital image; or
2. an electronic/digital communication of a harassing nature about the purported victim;
3. in doing so, you intended to place the purported victim in fear for his or her own safety or that of an immediate family member;
4. you did so through the use of an electronic/digital communication/messaging instrument;
5. you did so without the lawful consent of the purported victim;
6. you did so for the purpose of inciting a third-party individual or individuals to cause the purported victim injury, harm, or harassment; and
7. the electronic communication consisted of the purported victim’s personal information or digital image, or sensitive information about another person, that was likely to produce the desired illegal effect/action against the purported victim.

Please keep in mind that in order to secure a conviction, the prosecutor – which, because this crime is always charged as a misdemeanor, will be a Deputy City Attorney from the CA’s Office – does not need to prove that any third party actually harmed, threatened, or harassed the purported victim – only that you intended that such incident occur.

Further, the Deputy CA can introduce circumstantial evidence to prove that intent, which means your deliberateness can be inferred – and thereby established – merely by the circumstances involved in your alleged posting(s).

Definition of “electronic communication device” and “electronic communication”

For purposes of this statute, this first term explicitly includes (but is not necessarily limited to) the following:

1. any type of phone, including a landline, iPhone, or smartphone;
2. any quasi-phone app or website, such as Skype or Facetime;
3. any disappearing-message app, such as Vibr;
4. any computer, laptop, iPad, or digital tablet;
5. any website, including, of course, social media accounts;
6. any quasi-cellular or wireless instrument;
7. a PDA (personal digital asst.);
8. a digital camera;
9. any so-called “dark web” platform;
10. facsimile instrument/machine;
11. via any email message/communication; or
12. digital beeper or paging instrument.

See Pen. Code § 653.2(b).

In addition, also pursuant to Pen. Code § 653.2(b), the statute adopts the same definition of “electronic communication” as that set forth in the federal statute codified at 18 U.S. Code § 2510(12) (“Unannotated Title 18 – Definitions” of the United States Code).

Definition of “harassment” and “harassing nature”

Again, for purposes of this statute, the terms are defined as:

1. an intentional and cognizant series of acts targeting a particular individual;
2. these acts would be found by an objective individual (i.e., a juror) as significantly disturbing, tortuous, or threatening to the purported victim; and
3. such acts serve no legitimate objective.

See Pen. Code § 653.2(c)(1).

Convictions and Sentencing Terms for Domestic Violence – Posting Harmful Info. on the Internet

Misdemeanor Conviction for Violating Pen. Code § 653.2(a)

If convicted of uploading harmful information to the internet – because it’s only a misdemeanor – you would face up to 12 months in the county jail, a maximum $1,000 fine, or both.

Domestic-Violence-Victim Probation Enhancements

However, if the victim falls under the definition of an individual intended to be protected by any of California’s domestic violence laws, then you would face considerably harsher probation terms. One of these laws falls under California Family Code section 6211, which defines DV victims as follows:

1. your former or current spouse (i.e., husband or wife);
2. your current or former co-habitant (defined in California Family Code section 6209 as anyone who currently lives with you or did so within the preceding six months);
3. anyone with whom you are currently or were previously involved in a romantic, dating or sexual relationship – including your co-parent; or
4. your child.

So if you are convicted of posting harmful information on the internet about one of these individuals, then, pursuant to California Penal Code section 1203.097, your probation terms will be enhanced as follows:

1. three years of formal or informal probation;
2. a semi-permanent restraining order, stay-away/no-contact order, or even a residence-exclusion order (whereby you would be banned from sharing or even entering the same home as the victim);
3. a year’s worth of weekly batterer’s intervention program sessions with mandatory progress-report hearings;
4. mandatory volunteer work (minimum hours to be set by the sentencing judge);
5. possible drug rehabilitation treatment (in- or outpatient);
6. mandatory donation up to five thousand dollars to a DV victims’ facility (based on your ability to pay);
7. victim restitution; and
8. court fines.

Defenses to Domestic Violence – Posting Harmful Information on the Internet

You never intended to instill fear in either the purported victim or his/her immediate family member(s)

Sometimes certain types of humor – sardonic, sarcastic, deadpan, etc. – doesn’t translate well on the internet; so if the purported victim didn’t realize you were making an admittedly stupid joke, then your actions might be misconstrued to the point where they are actionable under this statute. In other words, if you lacked the requisite specific intent to terrorize him or her, then you aren’t criminally culpable.

Your alleged threat was made to a distant relative or non-related roommate of the purported victim

The statute – as well as California’s domestic violence legal framework in general – is very specific as to whom else is protected by these criminal codes. So unless you allegedly threatened his or her father, mother, grandparent, child or sibling, you cannot be prosecuted for doing so (at least under these codified DV laws).

You did not make the threat or harassing message through an electronic communication device

Thus, if you printed out the threatening or harassing statement and, say, posted it all over the purported victim’s neighborhood, then the prosecutor would be unable to prove that critical element.

A final note about the U.S. Constitution’s First Amendment right to free speech

Just like hate speech, so long as the prosecutor can establish that your intent was willful and malicious, you can’t use this as a defense to a charge of posting harmful info on the internet because it exceeds the bounds of free speech.

Amendment to California’s Law Re Domestic Violence – Posting Harmful Info. on the Internet

The year 2021 is almost certain to bring a significantly harsher new law regarding this crime. Specifically, on Feb. 20, 2020, Assembly Bill number 279 was introduced, and on May 5, 2020, it was referred to the Committee on Public Safety with amendments. (COVID-19 has apparently stalled this process.)

If passed, which in all likelihood it will, the revised Pen. Code § 653.2(a) will include the following changes:

1. possible prosecution as a felony if you’re alleged to have engaged in a pattern of this activity;
2. if convicted of a § 653.2(a) felony offense, a possible prison term of sixteen, twenty-four or thirty-six months; a maximum ten-thousand-dollar fine; or both;
3. the statute will broadly expand to include “close relation” – i.e., a more distant relative beyond that defined as an “immediate family member”, as well as anyone with whom the purported victim has had a professional or personal relationship;
4. the danger of harm or harassment will no longer need to be imminent but can be threatened at any time in the foreseeable future; and
5. possible alternative punishment if you’re under twenty-one years old at the time or if there are mitigating facts (presumably this would include diversion with possible dismissal).

See leginfo.legislature.ca.gov.

Finally, the term “personal identifying information” will now be defined as set forth in California Penal Code section 530.55, which includes, but is not limited to, the following:

1. the purported victim’s name, address, and phone no,;
2. health ins., taxpayer ID, & school ID nos.;
3. driver’s license or state-issued ID info;
4. S.S. #;
5. work address;
6. employee ID #;
7. professional license #;
8. mother’s maiden name;
9. bank acct. nos. or passwords;
10. PINs;
11. U.S. Passport #; and
12. D.O.B.

This punitive escalation was inevitable in light of the rising occurrences of cyber-stalking in general and doxing in particular. Indeed, on July 11, 2017, the Pew Research Center surveyed thousands of individuals in the United States about their experience, if any, with cyber-harassment (whether direct or indirect).

The study revealed that forty-one percent of these individuals had been victimized by online harassment, and two-thirds had seen others being cyber-harassed. In addition, eighteen percent of those surveyed claimed to have suffered very serious cyber-abuse such as threats of physical harm, death, long-term stalking, or sexual assault. See pewresearch.org.

Examples of Domestic Violence – Posting Harmful Information on the Internet – Misdemeanor Cases

California Court of Appeals upholds Fresno area’s man conviction for unauthorized posting of info

On March 12, 2013, the California Court of Appeals published its opinion in the case of People v. Michael Rosa, affirming the trial court’s convictions for numerous offenses, including the non-consensual digital transmission of personal ID info under P.C. § 653.2(a).

The crux of the ordeal began in spring 2009 following the end of Rosa’s ten-year marriage to Jennifer Tuig. At that time, he allegedly began stalking her in the Fresno area where they both lived (separately, of course). In addition, without her knowledge or consent, he allegedly uploaded sexually explicit personal ads on the internet with nude images Rosa had taken of her during their marriage.

Thereafter, over the course of the next twenty-one days, she began receiving calls at work from over a dozen strange men, and was accosted in person by at least one man after work. As a result, she was forced to change jobs and residences. She ultimately discovered the ad and called the Tulare Police Dept. (in Tulare Co. in the San Joaquin Valley).

Detectives subpoenaed the ISP’s records which traced the IP address of the subscriber, which in turn led to Rosa’s home in Tulare, as well as an e-mail address that he allegedly used to post the ads.

At trial, the jury convicted him of, among other crimes (most of which were felonies), including half-a-dozen misdemeanor counts of the unauthorized electronic distribution of personal identifying information (P.C. § 653.2(a)). The judge handed down a prison sentence of two-and-three-quarters years. Both the convictions and sentence were upheld by the appellate court.

See leagle.com.

Incident Involving a Celebrity — Domestic Violence – Posting Harmful Info. on the Internet

NCIS actress’s ex-boyfriend is convicted of electronically distributing harassing messages about her

On or about April 14, 2015, the California Court of Appeals published its opinion in the case of People v. Francis Shivers (a professional musician from Canada who performed under the stage name “Coyote”). In doing so, they affirmed the trial court’s convictions for violation of a protective order, and the unauthorized posting of a harassing message under Pen. Code § 653.2(a).

The victim was his ex-wife, actress Pauley Perrette from CBS’s hit show NCIS, whom he divorced in 2006 (two years after they separated following a four-year marriage) – the same year she obtained what was apparently a decade-long restraining order against him.

As was proven at trial (and, again, subsequently upheld by the appellate court), on or about March 11, 2012, Shivers and his new wife walked into a Hollywood-area restaurant and ran into Perrette and her current boyfriend. (It remains unclear if this meeting was accidental or if Shivers – who apparently knew she frequented this restaurant, intentionally went there to confront her.)

In violation of the R.O., Shivers approached Perrette’s table, got within inches of her face, pretended to videotape her with his phone, yelled to the other patrons that he had a restraining order against her, and otherwise mortified her. Perrette called 9-1-1 to report that Shivers had violated the RO, which was apparently still in effect, but he left before police arrived.

Shivers thereafter began posting harassing messages about her on his social media account, inviting people who followed him to accost Perrette, identifying the area in which she lived (located by the same restaurant, which was apparently his favorite), falsely claiming that he had obtained a R.O. against her, and falsely accusing her of stalking him. He even requested that his followers call police if they saw her in the area, and particularly if they saw her at the restaurant, to report the supposed R.O. violation.

Shivers was convicted at trial of both the R.O. violation, as well as the P.C. § 653.2(a) offense (although his sentencing terms remain unclear). He appealed the latter by arguing that he shouldn’t have been convicted because his social media postings didn’t actually: (a) incite anyone to harass Perrette; or (b) result in any such harmful, offensive or annoying contact.

The appellate court disagreed, ruling that all that was required was his intent to cause this response, which could be inferred from circumstantial evidence. See leagle.com.