Dr. Peter Gleick may have run afoul of a new cyber-impersonation law in California

Anton says:
February 24, 2012 at 6:28 am
“…..Also, trying to write messages in the “Leave a Reply” field is difficult. I have to click on it many, many time, with the cursor in the lower right corner, till, finally, a blinking dash in the field’s upper left corner indicates that I can start writing.”
I have the same problem. I found that when I click the curser in the scroll bar on the right hand side, the blinking dash appears. I begin typing, (or paste,) taking care to leave the curser in the scroll bar. I have no idea why this works, but it works, and that’s all I care about.

Thanks to Bill Jamison for posting the text of the bill. Now all we amateur lawyers can spin our theories based on actual language.

(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).

I’ve embolded the section which in my opinion (and I’m not a lawyer) will probably make this law not apply to Glieck. To prosecute under this statute you must establish intent to harm, intimidate, threaten or defraud. I suspect in statutory usage the word harm generally means physical harm, of which I see no evidence. It may have more general meaning including economic harm, or damage to one’s reputation — more about that later. Intimidation and threatening are related; both involve coercion applied to make someone either do something they are not otherwise inclined to do or not do something they otherwise intend to do. I haven’t seen mention of intimidation or threats resulting from Gleick’s deception, so establishing that as his intent will take some doing. I believe defraud requires actually depriving someone of property, cash, or other items of enumerable value. No evidence of that here.
Taken as a whole, I believe the target of this statute is cyber-bullying, and I believe the intent requirement quoted above effectively exempts Gleick’s admitted actions. The only possible match would be if the word harm encompasses damage to reputation, public image, community standing and so forth. Since there are existing statues addressing libel and slander, I doubt the courts would entertain using a new statue as a way to punish offenses already covered by existing laws.
Whether my reading of the law is correct or not, there are practical obstacles to prosecuting Gleick. Heartland Institute cannot on their own bring a criminal action; they can only make a complaint and see if a prosecuting authority (a) wants to take it up, and (b) can get an indictment from a Grand Jury. I think either one is unlikely, but I may have an unduly pessimistic view of the current legal/political climate in California.
In civil actions, Gleick risks a libel action from Heartland, and possibly invasion of privacy suits from anyone whose personal information was disclosed.
The really interesting peril for Gleick comes if it can be established he fabricated the “Confidential Strategy” memo which has been so widely quoted to discredit/defame Heartland Institute. That would establish actual malice and intent to defame, something US courts require if the plaintiff asserting libel is a “public official”, which term has been expanded to include “public figures” who are not government officials. I believe organizations like the Heartland Institute would come under the “public figures” provision
It has been alleged in several blogs that Gleick is the author of the fabricated memo, but Heartland (through Joseph Bast) who made that charge in an interview with the Wall Street Journal has since backed off. If Glieck’s authorship cannot be established, a successful libel action would have to prove “reckless disregard for the truth”. I believe a libel suit could be brought either in California or Illinois, and I suspect the later would be a better venue choice for Heartland.
Libel penalties also apply to anyone who re-publishes or forwards defamatory material. Hence the notices from Heartland attorneys to newspapers, web sites, etc.
Another thing a successful libel plaintiff must establish is actual harm suffered. This one may be difficult. The fabricated memo did not claim or suggest criminal acts, a factor always deemed harmful. Heartland can claim expenses incurred monitoring and correcting the false and defamatory information when it has surfaced. If one or more donors decline to renew their gifts and credit the decision to defamatory publicity, that would also constitute actual harm. But what if nobody pulls their donations, or if public donations actually increase? [full disclosure: I gave them $250 as a direct result of this incident, and my employer (a large corporation) will match it].
All in all, I am dubious that Heartland could win any significant libel judgement. There was an egregious case in 1992 involving a segment of ABC’s “20/20” show which faked what appeared to be the explosion of a GM pickup truck following a collision. GM managed to acquire sufficient physical evidence to establish the producers rigged the truck’s fuel tank with an incendiary device which actually ignited the explosion shown on TV. Facing overwhelming evidence, ABC settled on terms not disclosed, and read an on-air apology. In this case, GM had solid proof and could establish millions of dollars in damages. From what I’ve seen, neither circumstance applies here.
However as I am not an attorney, I am certainly not Heartland’s attorney, who may well hold a different opinion.
To me much more sinister than any actions Peter Gleick may have taken is the almost universal mantra among his supporters and even some lukewarm detractors that Heartland Institute does not have a constitutionally protected right to do exactly what they are doing.
That it a topic for a separate post.

Thomas says:
February 24, 2012 at 3:37 am
From the text of the law: “for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision”
Who is the person being harmed? As written this law only seems to protects people, not organizations like Heartland Institute.

In addition to the responses above, I would point out that the Hearland Institute, if incorporated, is considered a “person” for most legal purposes including fraud. Otherwise, how could a company recover damages in a suit for fraud (like insurance companies, for instance)?

jtom:
Thank you for the reference (1) on legal usage of harm. OK the “material or tangible detriment” could cover loss of donations, but a prosecution would have to show beyond a reasonable doubt that this was Gleick’s intent. I have reasonable doubt this was his intent — I think he wanted to wake up all the apathetic people blissfully assuming that Heartland is only exercising Constitutionally protected free speech (which of course is not permitted for people denying AGW orthodoxy or accepting money from other AGW deniers).
My comment was mostly about the application of the new California cyber-impersonation law (the topic of this thread), so your item (2) regarding federal wire fraud is not applicable, although it may well be another potential avenue for prosecution. Of course federal prosecutors all work for Attorney General Eric Holder, so I wouldn’t hold my breath on that possibility either. He’s kind of busy explaining exactly how federal ATF agents permitting Mexican drug gangs to purchase large numbers of guns and smuggle them back to Mexico didn’t commit any crimes.
To your point (3): while it is true that HI has been defamed regardless of who fabricated the memo (one of the four elements a libel plaintiff must show), as a “public figure” they must also establish Gleick acted out of “actual malice” or “reckless disregard for the truth”. This test is much easier to meet if HI can establish Gleick created the memo and passed it off as genuine. Although HI may prevail regardless, their case is clearly stronger with this additional showing.
I realize now I should have stuck to my original point: criminal prosecution under the new California law is unlikely. The foray into civil libel law was a distraction, and a topic requiring far more space than I allowed.
My immediate family is also lousy with attorneys, most of whom would probably support Gleick.