Gaining Unauthorized Access to Victim’s Facebook Account to Post Defamatory Messages Constituted Identity Theft Under California Law

The California Court of Appeal upheld a juvenile’s conviction of identity theft based on his accessing a female victim’s Facebook account and posting sexually-charged messages while using the victim’s profile. In re Rolando S., No. F061153 (Cal. Ct. App. July 21, 2011). The defendant, Rolando S., received from an unnamed person an unsolicited text message containing the victim’s e-mail account password. He used the victim’s email password to gain access to her e-mail account and then reset her Facebook account password by directing Facebook send a password reset link to the victim’s e-mail. After logging onto Facebook in the victim’s name, he posted sexually provocative messages on two of the victim’s male friends’ “wall” pages and altered her profile to contain a sexually vulgar description.

Roland S. was tried and convicted by a juvenile court of violating California Penal Code § 530.5. That code section provides in pertinent part that,

Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense ….

Roland S. appealed his conviction.

In an opinion dated July 21, 2011, the California Court of Appeal affirmed. The court explained that in order “to be guilty under section 530.5, subdivision (a), the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person’s consent.” (Quoting People  v. Tillotson, 157 Cal. App. 4th 517 (Cal. Ct. App. 2007)). Roland S. argued that he did not “willfully” obtain the victim’s password because the text message in which he received it was unsolicited. The court disagreed, noting that to act willfully simply means that “the person knows what he is doing, intends to do what he is doing and is a free agent.” The court found that Rolando S.’s actions of accepting the text message, remembering the e-mail password, and intentionally using it to gain access to the victim’s e-mail account were all intentional and therefore “willful.” According to the court, Roland S. also “willfully obtained the Facebook account password by purposely using the email account as a vehicle to alter the Facebook account password.”

Roland S.’s second argument was that he had not used the victim’s personal identifying information for an “unlawful purpose,” as required for a violation of Section 530.5. The state argued that his actions were done for the unlawful purpose of violating Penal Code § 647.6 (a)(1), which makes it a misdemeanor when a person, “annoys or molests any child under 18 years of age.” The court rejected this argument, emphasizing that a violation of Section 647.6(a)(1) requires proof of “(1) conduct a ‘“normal person would unhesitatingly be irritated by,'” and (2) conduct ‘“motivated by an unnatural or abnormal sexual interest”’ in the victim. The court found no evidence to support the second element of a Section 647.6(a)(1) violation.

The state argued in the alternative that Roland S. acted for the unlawful purpose of publishing libelous statements about the victim. Here the court agreed. Rejecting the defendant’s argument that acting for “any unlawful purpose” under the identity theft statute was limited to criminal actions, the court reviewed the legislative history and determined that the legislature intended the term to encompass “acts prohibited by the common law or nonpenal statutes, such as intentional civil torts.” Because Roland S. “exposed the victim to hatred, contempt, ridicule and obloquy with his actions,” the court found that he had engaged in libel, an intentional tort.

Finally, the court also found that Roland S. had acted for the unlawful purpose of violating Penal Code § 653m(a), which provides in part: “Every person who, with intent to annoy … makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language … is guilty of a misdemeanor.” Accordingly, the court concluded that the conviction was supported by substantial evidence and should be affirmed.

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