Peter Thomas Senese: Online Slander and Impersonation Are An International Parental Child Abductor’s Best Friend Due To An Article 13 Defense Under The Hague Convention. Author Urges New York State Legislators To Pass The ‘Digital Impersonation Prevention Act’

New York State legislators are on the cusp of passing a remarkable and much-needed law that will benefit all citizens of the state: the ‘Digital Impersonation Prevention Act’. The Legislation was created to prevent individuals with malice and illicit intent to use the name of another person online for purposes of causing their target personal injury.

New York State Assembly Member Micah Z. Kellner (D-Upper East Side, Yorkville) who has sponsored the crucial legislation in the State Assembly said, ““It seems like every day we hear about a new and horrific case of identity theft. It’s grown beyond hacking into your bank account. People’s lives can be ruined by thieves who steal their email accounts or Facebook pages to use them for malicious purposes. People have actually been driven to suicide in cases.”

One of the benefits of the Internet is that it allows for anonymity; however, there is a serious price to be paid by many because the atmosphere has created the ability for anonymous posters to create false, untrue, slanderous, and harassing content with the sole purpose to cause the person they are attacking undue harm. It has been estimated there were over 9 million victims of online identity theft and impersonation last year alone: a number that is growing.

Presently, in New York State there are various laws that protect online identity theft and impersonation; however, with the anticipated passage of the Digital Impersonation Prevention Act, a new specific law will be in place that deals directly with this issue. It can and should be used in conjunction with other laws in place in order to protect those who are targeted for identity theft or impersonation.

One of the ways celebrities may protect their identity is to trademark their name. But this is not possible for the average working person. Copyright protection laws allows for certain protection to occur under laws governing personal property; however, if you do not have copyrighted work that is attached to you such as a book or a film, then a person will not be protected under law.

In the past online identity impersonation typically involved financial transactions. Today the fastest growing form of online identity theft and impersonation is used to cause personal injury toward a target in conjunction with defamation,slander, libel, and harassing actions including cyberbullying and cyber stalking. Fortunately, in New York State there exists laws that deal with these issue. However, the ‘Digital Impersonation Prevention Act’ will be a much-needed and added resource available to targeted victims.

In the world of  international parental child abduction, laws that prevent digital impersonation are critical. For a parent intending to abduct a child internationally, the elements of the abduction typically include a well thought out plan, including how to defend the abduction if there is a chance that the international courts such as the Hague Courts may become involved. Under the Hague  Convention’s Article 13, the rules allow for an abducting parent to defend their criminal abduction by claiming that it is in the best interest of the child for the child to not be ordered to return to the country of original jurisdiction. In order to prove this, the criminally abducting parent must ‘create’ a series of personal attacks on the target in order to falsely demonstrate the targeted parents incapability to care for the welfare of the abducted child. Commonly, this will include the use of the Internet to slander, defame, harass, and cause grave injury to the target. The majority of this is done anonymously or under false name online via various community forums in order to falsely and misleadingly fabricate a communal negative perspective on the target. And unfortunately for the targeted parent, they have their hands more than full at that time because they are attempting to navigate the cruel multi-international litigation nightmare attached to trying to prevent, find, or bring home their child.

During the time that my child was internationally abducted in accordance to the rules of the Hague  Convention, I, like many parents who came before me as well as those who will sadly come after me, had to deal with this very issue. I was fortunate in the sense that the international courts under the Hague had seen through the conspiracy, and these courts ordered for my child to be returned. I was able to present literally several hundred sworn personal and professional letters to the court referring to my conduct, and I had resources available that allowed me to successfully litigated against the malicious slander and defamation that took place. I am also aware that many targeted parents may not have the resources to accomplish some of what I have. And that is why, from a viewpoint of international parental child abduction, laws such as the ‘Digital Impersonation Prevention Act’ must be passed into law in each and every state.

Unfortunately for many targeted parents of abduction who have successfully recovered their child, a problem still exits: the abducting parent still remains at large: bitter, angry, and filled with a desire for revenge and to cause the chasing parent additional harm (it is noted by leading experts in the area of IPCA that the vast majority of parental abductors use the child of the relationship in order to cause great harm toward the targeted parent).  In fact, Dr. Janet Johnston (Judith Wallerstein Center for the Family in Transition) and Dr. Linda Girdner (ABA Center on Children and the Law) along with other renown therapist and law enforcement officers have openly stated that an abducting parent exhibit sociopathic behavior and have little respect for or concern of the law.

Online identity theft and impersonation generated due to malice is a growing and very serious problem. Civil litigation can protect an individual from defamation and slander, but the process can be long. Additionally, if you sue a person due to their misconduct, if they have no assets, you may be able to have the defamatory content removed from the Internet, but the individuals behind the malice will not be held truly accountable for their acts. And in certain circumstances content cannot be taken down under Internet law (though I have recently learned that there are other possible ways to have content removed). Nevertheless, once untruthful content is placed online, there is a challenge to have it removed. One important remedy a targeted person can do is to address matters under criminal law, particularly since many cases of malicious online impersonation include defamatory, slanderous, and malicious content posted. The ‘Digital Impersonation Prevention Act’ adds to the arsenal of laws already established that may be utilized to protect individuals from online malice.

Various research also indicates that a person who will impersonate or steal another person’s online identity is acts with fearless reckless abandonment because they think they are protected to continue their acts because of the difficulties associated with their target bringing litigation, and, under civil court action, they can be sued – but if they have very little to take, they could care less.

The remedy to all of this is very simple: create and enforce criminal codes that will hold individuals who impersonate or steal another person’s identity with the sole purpose of causing malicious harm to that person fully and unequivocally accountable under criminal law. I speak from heavy experience on this issue as I have been the victim of this type of act to which I have taken serious and unilateral action under all laws available to me.

“Anonymity is a criminal’s best friend—and it’s one of the defining features of the Internet,” said Assembly  Member Kellner. “New Yorkers deserve stronger protections so we can bring these nefarious individuals out of the shadows and hold them accountable for their actions.”
am in full support of the passage of the Digital Impersonation Prevention Act as this bill will be a great law for New York. I hope you will be as well. Here is the legislation that is moving its way through Albany’s legislation.

Senator Martin Golden (Kings) has sponsored the bill in the Senate and will navigate the legislation as it moves through the Senate.

S4015-2011: Enacts the Digital Impersonation Prevention Act
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<i>Same as: A6238 / Versions: S4015-2011 S4015A-2011 Print HTML Page / Print Original Bill Format / ShareThis/ Read or Leave Comments

Enacts the digital impersonation prevention act.
——————————————————————————–
Sponsor: GOLDEN / Committee: CODES / Law Section: Penal Law

S4015-2011 Actions
Mar 25, 2011: PRINT NUMBER 4015A
Mar 25, 2011: AMEND AND RECOMMIT TO CODES
Mar 14, 2011: REFERRED TO CODES
S4015-2011 Memo
BILL NUMBER:S4015

TITLE OF BILL:
An act
to amend the penal law, in relation to enacting the digital
impersonation prevention act

PURPOSE OR GENERAL IDEA OF BILL:
To establish the crime of digital
impersonation and to create effective penalties for those who engage
in digital impersonation for the purposes of harming, threatening, or
defrauding another person, sending unsolicited bulk mails or
commercial solicitations, or downloading or utilizing a contact list.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1:

Establishes the title ‘Digital Impersonation Prevention Act”

Section.2:

-Amends the penal law by adding a new section 190.87, establishing the
crime of digital impersonation;

-Provides that a person is guilty of digital impersonation when he or
she, knowingly, with intent to defraud and without consent,
creditably impersonates another actual person through or on an
Internet web site or by other electronic means for purposes of: (i)
harming, intimidating, threatening, or defrauding another person;
(ii) transmitting unsolicited commercial solicitations or unsolicited
bulk messages; or (iii) copying, accessing, downloading or utilizing
a contact list;

-Establishes the meaning of creditable impersonation;

-Defines “electronic means,” “contact list,” “unsolicited commercial
solicitations,” and “unsolicited bulk messages”;

-Establishes penalties for violations; and

-Provides that a person who suffers loss or damage by reason of a
violation may a bring civil action against the violator; sets forth
damages and other relief.

Section 3: Sets effective date

JUSTIFICATION:
Digital identity theft, more accurately known as
digital impersonation, has been a growing problem in the internet era.
The US Federal Trade Commission estimates that as many as 9 million
Americans have their identities stolen each year. Historically, the

major motive for identity theft has been financial fraud, as thieves
use
stolen identities to make credit card purchases, withdraw funds, and
set up phony accounts. Over the past few years, we have seen an
increase in a more personal kind of impersonation: the use of
Internet anonymity to harass individuals. In 2010, for instance, the
New York Times reported on the rise of cyber bullying and what can
happen if the issue is not addressed. The article told the story of
Marie, a single mother from Newburyport, Massachusetts, whose son had
become increasingly withdrawn since entering a new high school. After
some investigating, Marie discovered that a number of her son’s
classmates had created a Facebook page with her son’s name and
picture. The page in question was being used by others to bully
people her son barely knew, with the blame for
this behavior falling unfairly on her son. It is clear that stronger
measures are needed to combat such actions.

Additionally, thieves have made use of stolen identities to send
‘spam’ unsolicited bulk email messages and commercial
solicitations-circumventing mechanisms intended to block such
unwanted messages by sending them from the accounts of unwitting
identity theft victims. According to a report commissioned by McAfee,
a computer-security company, approximately 62 trillion unsolicited
emails were sent in 2008, with serious economic and environmental
consequences. Many of these messages were sent from stolen or
hijacked email accounts.

Already, states like California have passed laws to crack down on
digital impersonation. New York should follow suit. This legislation
would create effective penalties for those who engage in digital
impersonation for the purposes of harming, threatening, or defrauding
another person, sending unsolicited bulk emails or commercial
solicitations, or downloading or utilizing a contact list. It also
establishes a civil cause of action for people who are victims of
digital impersonation.

PRIOR LEGISLATIVE HISTORY:
None.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
The law shall take effect on the first of November
next succeeding the date upon which it shall have become law.
Text
S T A T E   O F   N E W   Y O R K
4015
2011-2012 Regular Sessions
I N  SENATE
March 14, 2011
Introduced  by  Sen.  GOLDEN — read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law,  in  relation  to  enacting  the  digital
impersonation prevention act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited  as  the  “digital
impersonation prevention act”.
S  2.  The penal law is amended by adding a new section 190.87 to read
as follows:
S 190.87 DIGITAL IMPERSONATION.
1. (A) A PERSON IS GUILTY OF DIGITAL IMPERSONATION  WHEN  HE  OR  SHE,
KNOWINGLY, WITH INTENT TO DEFRAUD AND WITHOUT CONSENT, CREDIBLY IMPERSO
NATES  ANOTHER  ACTUAL  PERSON  THROUGH OR ON AN INTERNET WEB SITE OR BY
OTHER ELECTRONIC MEANS  FOR  PURPOSES  OF:  (I)  HARMING,  INTIMIDATING,
THREATENING  OR DEFRAUDING ANOTHER PERSON; (II) TRANSMITTING UNSOLICITED
COMMERCIAL SOLICITATIONS OR UNSOLICITED BULK MESSAGES; OR (III) COPYING,
ACCESSING, DOWNLOADING OR UTILIZING A CONTACT LIST.
(B) FOR PURPOSES OF THIS SECTION,  AN  IMPERSONATION  IS  CREDIBLE  IF
ANOTHER PERSON WOULD REASONABLY BELIEVE, OR DID REASONABLY BELIEVE, THAT
THE DEFENDANT WAS OR IS THE PERSON WHO WAS IMPERSONATED.
2. FOR PURPOSES OF THIS SECTION: (A) “ELECTRONIC  MEANS” SHALL INCLUDE
CREATING  OR  OPENING  AN  E-MAIL  ACCOUNT OR AN ACCOUNT OR PROFILE ON A
SOCIAL NETWORKING INTERNET WEB SITE IN ANOTHER PERSON’S NAME; OR ACCESS
ING ANOTHER PERSON’S  PRE-EXISTING  E-MAIL  ACCOUNT  OR  AN  ACCOUNT  OR
PROFILE  ON A SOCIAL NETWORKING INTERNET WEB SITE; OR ALTERING OR CHANG
ING THE PROPERTIES OF AN E-MAIL, OR E-MAIL HEADER, TO APPEAR  AS  THOUGH
THE  E-MAIL  ORIGINATED  FROM  A  DIFFERENT  SOURCE  WITHOUT THE EXPRESS
CONSENT FROM THE ACCOUNT HOLDER.
(B) “CONTACT LIST” SHALL  INCLUDE  ANY  LIST  OF  THIRD-PARTY  CONTACT
NAMES,  ADDRESSES,  TELEPHONE  NUMBERS,  MOBILE PHONE NUMBERS, FACSIMILE
EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09358-02-1        S. 4015                             2
NUMBERS, E-MAIL ADDRESSES, INSTANT MESSENGER NAMES, OR OTHER INFORMATION
USED FOR CONTACTING INDIVIDUALS.
(C)  “UNSOLICITED  COMMERCIAL  SOLICITATIONS” SHALL INCLUDE ANY ADVER
TISEMENT RELATED TO THE AVAILABILITY OR QUALITY OF ANY PROPERTY,  GOODS,
OR  SERVICES  OR  TRANSMISSION  OF  A HYPERLINK TO A WEB SITE OR UNIFORM
RESOURCE LOCATOR (URL) WHICH HAS ANY MATERIAL ADVERTISING THE AVAILABIL
ITY OR QUALITY OF ANY PROPERTY, GOODS, OR SERVICES.
(D) “UNSOLICITED BULK MESSAGES” SHALL INCLUDE THE TRANSMISSION  OF  AN
E-MAIL,  INSTANT MESSAGE, OR SOCIAL NETWORKING POST THAT IS PUBLISHED TO
MORE THAN ONE UNIQUE RECIPIENT.
3. A VIOLATION OF SUBDIVISION ONE OF THIS SECTION SHALL BE  PUNISHABLE
BY  A  FINE NOT TO EXCEED ONE THOUSAND DOLLARS OR BY IMPRISONMENT NOT TO
EXCEED ONE YEAR, OR BY BOTH THE FINE AND IMPRISONMENT.
4. IN ADDITION TO ANY OTHER  CIVIL  REMEDY  AVAILABLE,  A  PERSON  WHO
SUFFERS  DAMAGE  OR  LOSS BY REASON OF A VIOLATION OF SUBDIVISION ONE OF
THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE VIOLATOR FOR STATUTORY
DAMAGES OF FIVE HUNDRED DOLLARS  PER OCCURRENCE,  COMPENSATORY  DAMAGES,
AND INJUNCTIVE RELIEF OR OTHER EQUITABLE RELIEF. IF THE COURT FINDS THAT
THE  DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS SECTION OR THE REGU
LATIONS PRESCRIBED UNDER THIS SECTION, THE COURT MAY, IN ITS DISCRETION,
INCREASE THE AMOUNT OF THE AWARD TO AN AMOUNT EQUAL  TO  NOT  MORE  THAN
THREE TIMES THE AMOUNT AVAILABLE UNDER THIS SUBDIVISION.
5.  FOR  PURPOSES OF THIS SECTION, “OCCURRENCE” SHALL INCLUDE EACH ACT
OF CREATING OR OPENING AN E-MAIL ACCOUNT OR AN ACCOUNT OR PROFILE  ON  A
SOCIAL  NETWORKING INTERNET WEB SITE; ACCESSING ANOTHER PERSON’S PRE-EX
ISTING E-MAIL ACCOUNT, ACCOUNT OR PROFILE ON A SOCIAL NETWORKING  INTER
NET  WEB SITE OR CONTACT LIST; ALTERING OR CHANGING THE PROPERTIES OF AN
E-MAIL, OR E-MAIL HEADER, TO APPEAR AS THOUGH THE E-MAIL ORIGINATED FROM
A DIFFERENT SOURCE; AND THE TRANSMISSION OF  AN  UNSOLICITED  COMMERCIAL
SOLICITATION TO A UNIQUE RECIPIENT.
S 3. This act shall take effect on the first of November next succeed
ing the date upon which it shall have become a law.

 

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