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Vindictive Ex-girlfriend Could Face 18 Months in Prison for Facebook “E-Personation”

Posted in E-Personation

Late last year, Superior Court Judge David Ironson in Morristown, New Jersey, declined to dismiss an indictment of identity theft against Dana Thornton, who allegedly created a false Facebook page that portrayed her ex-boyfriend, narcotics detective Michael Lasalandra, in a highly unfavorable light.  According to the prosecution, Thornton used the page to impersonate her ex-boyfriend, publishing posts through which the false “Lasalandra” admitted to using drugs, hiring prostitutes and contracting a sexually transmitted disease. 

Thornton’s defense attorney Richard Roberts did not deny that Thornton created the bogus Facebook page, but argued that the indictment against Thornton failed to “quantify or qualify” the injuries Lasalandra suffered because of the impersonation.  Roberts also argued that New Jersey’s impersonation and identity theft statute does not include “electronic communications” as a means of unlawful impersonation and that Thornton’s actions thus did not fall within the scope of activity that the statute proscribes.

Judge Ironson disagreed, holding that Thornton’s postings, by their nature, could harm Lasalandra’s “professional reputation” as a police officer.  He further held that New Jersey’s law is “clear and unambiguous” in forbidding impersonation activities that cause injury, and does not need to specify the means by which the injury occurs.  New Jersey’s impersonation and identity theft statute provides that a person is guilty if he or she “[i]mpersonates another or assumes a false identity and does an act in such assumed character or false identity for the purpose of obtaining a benefit for himself or another or to injure or defraud another.”  Judge Ironson construed this law broadly to include Thornton’s actions.  

As social media ambles from infancy into toddlerhood, the avenues for abuse available to users continue to increase.  Establishing a false Facebook page for the purpose of defaming another is part of a growing form of destructive impersonation through electronic means, sometimes referred to as “e-personation.”  E-personation requires far less information than many other forms of identity theft require.  In order to create a false Facebook page, a would-be e-personator does not need any of the victim’s personally identifiable information other than his or her name.  The power of the Internet to disseminate information, and the popularity of Facebook and other social media sites, make e-personation particularly harmful by enabling perpetrators to spread injurious statements much more quickly and effectively than would be possible using conventional, non-electronic means.

To combat this phenomenon, some states have begun to enact legislation that explicitly criminalizes e-personation.  New York’s criminal impersonation statute makes it illegal to impersonate somebody “by communication by internet website or electronic means.”  In January 2011, California added an entire e-personation statute to its penal code, which includes opening a “profile on a social networking Internet Web site in another person’s name” in the definition of “e-personation.”  The Texas penal code includes a narrower “online harassment” statute that is limited to barring impersonation on “commercial social networking sites.”  And most recently, Washington state enacted an e-personation statute.

New Jersey does not currently include any express e-personation provisions in its penal code, but an amendment that would specifically criminalize e-personation has passed the state Assembly and is currently being considered by the state Senate.  In Thornton’s hearing before Judge Ironson, Roberts attempted to use this fact to argue that Thornton’s alleged e-personation was outside of the scope of the current New Jersey statute.  Judge Ironson, however, agreed with prosecutor Robert Schwartz that the proposed amendment is only a clarification of the current law, under which e-personation already constitutes a form of injury-inducing impersonation.  As Schwartz stated, “In no way [is the current law] saying that electronic communication has been excluded.  No way did the Legislature ever intend for Ms. Thornton to get away with this kind of conduct.” 

As noted, a small handful of states currently have e-personation statutes, but Judge Ironson’s ruling in New Jersey demonstrates that even traditional identity theft and impersonation statutes can be applied by courts to prohibit e-personation.  This raises the issue of whether e-personation is an issue best dealt with through new legislation or under existing identity theft and impersonation laws, a question that has divided the Internet legal community.  Some legal scholars oppose express e-personation statutes, noting that laws attempting to respond to rapidly changing technology often become outdated quickly, may result in narrowing the scope of sufficient laws already in place, and can raise First Amendment issues.  Others call for e-personation statutes in all states in order to increase protection for victims of acts similar toThornton’s. 

In the coming months, there will likely be further developments in Thornton’s case.  Although Thornton and the prosecution did make some attempts at a plea bargain, the prosecution has now stated that it intends to take the case to trial, and will prosecute Thornton for fourth-degree identity theft, which carries a maximum sentence of 18 months in prison.  Last December, Roberts filed a motion to be removed as Thornton’s lawyer, so the trial has been delayed.  In any event, as Thornton’s case plays out, it will be interesting to see how different states react to its outcome in their approaches to e-personation, an ever-growing and evolving negative side effect of the social media revolution.