This law is designed to protect victims of identity theft, harassment from stalkers, and could be used as another weapon against spammers and phishers.  Example:  Someone steals your phone and gets all your contacts, they open an email account in your name and posing as you, try to get money out of your family and friends.  Oh wait, there are plenty of laws already making this sort of thing illegal…Hmmm, OK, here’s a better example:  Someone is stalking another person and opens a phony Facebook account in the other person’s name and, posing as the victim, posts all kinds of obscene and violent content all over the web.  Yes, there we go!  Until SB 1411 there was no law that covers this sort of thing, that’s what this law is supposed to do.  Here’s another good example:  You click on what appears to be a legitimate link sent from an office-mate, but your colleague’s account has been hijacked by a spammer and you are taken to a porn site.

Another important aspect to this law:  An actual person must be impersonated.  There’s nothing stopping you from creating a fake identity out of thin air and using it as an online persona.  Which is a good thing, or we’d be in trouble. Believe it or not, this website is not run by a group of mysterious amateur pundits all named “Johnny California.”

SB 1411 also says that “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.”  Let’s say you open a Facebook account with the name “Arnold Schwarzenegger” and put a picture of the Governor on your profile page and then start sending out messages  to people saying “Hey, I’m out of a job now and have nowhere to live, can I come over and crash on your couch?”, this would not be breaking the law. Nobody could reasonably believe that the former Governor is sending them a message like that. It’s not particularly clever or funny, but it’s perfectly legal.

On a more personal note, we here at Johnny California are reminded of something that happened last summer.  While at ComiCon in San Diego, one of our spouses left her iPhone in the hotel lobby.  A group of people whom she did not know found it and they turned it in to lost and found.  But before turning it in, they posted “Oh shit! I’m drunk and I lost my phone” on the woman’s Facebook page, they sent a text to one of her co-workers that “I drank so much tequila that I lost my iPhone.”  The phone owner was not drunk.  The folks who found the phone also took a group picture of themselves in front of the hotel.  They also found a frequently called number in the contacts, who turned out to be the woman’s close friend, and let her know they found her pal’s phone.  The phone was returned, the nerdy hijinks were taken in the spirit intended, and we all had a good laugh.

Under this new law, had this woman not been so laid back, could she have called the police to have this crew arrested?  Could she have sued the phone finders in civil court too?  The civil suit might be tough because it would be difficult to prove actual harm, but what if the text message to the co-worker lead to problems at work (it didn’t).  What about the criminal side? Would these goofy miscreants have caught a misdemeanor charge for their defamatory Facebook posts and text messages even though they went out of their way to make sure that the phone was returned?  On these facts, the prosecutor or plaintiff’s attorney would need to be severely over-caffeinated to pursue a case, but it is certainly not out of the realm of possibility.

Bottom line:  This law is probably not that big of a deal, but everyone should keep a close eye on it to make sure it is not abused.

For more analysis on this, check out the article at ZDNet’s Tech Broiler.

The bill, AB 74, would add a new section 421 to the California Penal Code which would read, in part, as follows:

“(a) Any person who conducts a public event at night that includes prerecorded music and lasts more than three and one-half hours is guilty of a misdemeanor punishable by a fine of ten thousand dollars ($10,000) or twice the actual or estimated gross receipts for the event, whichever is greater.”

In the bill’s current form, the only people exempted from this law are people who hold public events on private property and are properly licensed to do so. This means entertainment venues, bars, theaters, and sporting events.

On its face, this bill violates almost every recognized constitutional protection under the First Amendment and also also runs afoul of the equal protection clause of the Fourteenth Amendment. Our favorite part of the bill is the bizarre prohibition on “pre-recorded music.” Clearly this is targeted at DJs, “electronic” artists, and of course, hip-hop. Ya know, there was a time when people believed live music lead to things like drug use, promiscuity, and death. For the past 100 years everyone from jazz musicians to heavy metal bands had to put up with accusations that they were “bad for the kids.” It looks like the day has come for DJs and techno-type acts to step up and get their public flogging.

On the other hand, the bill says there’s a violation of the law if the event “includes” prerecorded music.  Does this mean that if a live band uses a synthesizer with sampled tones there’s a problem? What about pre-recorded music on the PA in between bands?  Maybe live music ain’t so safe after all.  One has to wonder, and this goes to the heart of the matter, if there was a giant dance party sponsored by a church that featured nothing but DJs playing Christian music would the police shut it down and recommend that prosecutors file criminal charges?  Good luck with that.

We’re also curious about what happens to people who are hosting  late night cookouts at the park or beach with a portable stereo providing pre-recorded music.  And what about people who hold public events on their own private property but are not licensed to do so.  Religious practice comes to mind, as do things like block parties.  And of course, there’s teenagers who throw huge parties when mom and dad leave town.  Are they facing a misdemeanor conviction and a $10,000 fine?  If they hire a live band to play at the party are they off the hook?  What if the police find an iPod on one of the guests?  Does the event then include pre-recorded music? What if people are screening movies on their property and it goes longer than 3 1/2 hours?  Can they only show silent movies or can they show talkies as long as they strip out the music score and soundtrack?

According to the Neon Tommy blog, Assemblywoman Ma has promised to “work with rave promoters, county officials and first responders to amend the bill as necessary.”  Stay tuned.

UPDATE 12/27/10: Assemblywoman Ma has now said that she is going to “put the measure on hold” according to the SF Chronicle Politics Blog.  Ms. Ma says, in part:  ”I commit to not moving AB 74 until meeting and hearing from all perspectives.”  Heh.

Read more: http://www.sfgate.com/cgi-bin/blogs/nov05election/detail?entry_id=79861#ixzz19NoRYC7m

From both a privacy standpoint, criminal prosecution standpoint, and rules-of-courtroom-evidence standpoint this law is a very significant development.  It is so significant that the California Department of Motor Vehicles  is not interested in publicizing it at all. The DMV failed to mention it in their press release showcasing new laws for 2011.    It is entirely possible that this is one of those laws that didn’t get much publicity for who-knows-what-reasons.  Oh wait, we do know the possible reasons.  Privacy advocates don’t like the law and other people will start to get the idea that they can record their encounters with the police after they get pulled over.

Or maybe we’re just  over-thinking this, the press release people simply forgot about this law, and by accusing the DMV of acting with such subtle cunning, we are giving them far more credit than they deserve.

In other DMV privacy news, has anyone gone  to their website to register their car or get a new license?  When you register your account, you have to choose from a list of security questions for password recovery. One of the questions is “Who did you vote for in your first Presidential Election?”  Isn’t it against the law for the government to ask you how you voted in an election?  We’re going to look into this.

You can go back and read what we had to say about the 2008 version known as Prop 4.

We have not run our full analysis of the law yet but we predict it will be almost identical to the previous versions.  Once again they are pushing their agenda under the guise of “stopping predators.”  The logic is that if a minor is impregnated by a sexual abuser, the abuser will take the child to a doctor and force her to get an abortion.  Once again, we lay down the gauntlet for anyone to present evidence that this law will prevent this.   We will gladly give you the space to blog about it.

But you can’t blame the proponents of the measure for trying, it’s a tried and true way to get conservative voters out to the polls. And even though they’re  0 for 3, it’s been fairly close every time.  Look at the numbers (From Ballotpedia):

California Proposition 4
		Votes	Percentage
Yes		6,071,863	48.0
NO		6,570,777	52.0%
Total votes		12,642,640	100%

Pretty consistent all the way around, even with the relatively higher voter turnout of the 2008 election.  Analysis on the law coming your way when we feel like it.

Here’s what we know:

Erickson’s Linkedin profile lists his occupation as “Political Organization Professional” but shows no other work history or professional achievements other than his Chairmanship of the Sonoma County Republican Party from 2006 until 2010.  His profile also claims he attended Santa Clara Law School from 1995 until 1999, but does not reflect whether or not he earned a law degree.  A thorough search of the State Bar of California website does not list Michael Erickson as a member.  This means he is not licensed to practice law in the State of California. This would not be a big deal except that he publicly holds himself out as an attorney.

In the footer of an October 5 press release from Erickson:

Michael Erickson is an attorney and chairman of Support Federal Immigration Law Committee, the sponsors of the initiative.

In a bio for a right-wing speaker’s bureau he is identified as a “lawyer”:

As a lawyer, Michael has pursued the legal practice both professionally and politically. Professionally he has worked in insurance and securities litigation and construction and environmental law. Politically, he has used his legal experience to defend property rights, working on cases involving eminent domain and property taxes. He has devoted much of his time and energy to preventing infringements of constitutionally protected liberties within the context of land use conflicts.

Erickson may be sensitive to this possible misrepresentation, since in other interviews he has eschewed the lawyer tag. In a November 23rd interview with the San Diego Tribune, Erickson is identified as a “legal researcher.”  In another story, published the next day by the Sac Bee, Erickson is identified as a “business consultant”, which is also how he identified himself  in an October 6 interview with KPCC.  In that same interview with KPCC he claims to have a law degree, but admits that he is “not licensed to practice law.”  Confused?  We are too.

Then there is the total image makeover.  The bald shot is from the speaker’s bureau website, the other one is from Erickson’s hilariously-URL’d website called supportimmigration.org .

Headshot from Newsguests.com

Headshot from Support Immigration.org

We have no problem with the image makeover, and frankly we like that he’s enlightened enough to embrace he’s receding hairline (some of us here at Johnny California aren’t there yet).  But the new look ties into the larger issue: The unclear professional history, his public identification as a lawyer and subsequent reclassification as a “legal researcher” – then it seems he changes his tune again and calls himself a “business consultant.”  Something is odd here.  We’ll keep looking.

What it would look like if this ballot intiative passed in 2012 and was upheld by the federal courts:

1)      Police can stop and search citizens based on the belief that they are illegal immigrants.  – Police can stop California citizens and ask them to provide documentation which shows that they are in the United States legally.  This would have far reaching effects for law enforcement.  In Los Angeles, it would potentially eradicate “Special Order 40” a three-decade old internal LAPD policy which prohibits police officers from inquiring as to the immigration status of citizens, whether they are suspects in a crime or not.

No matter what you may think of LAPD, Special Order 40 is good policy.  Both crime victims and witnesses should be able to go to the police with information and not fear they will be arrested based on immigration status.  Changing this law would make police work impossible in some of LA’s most violent and impoverished communities. Erickson told the SacBee that  “the difference with Arizona’s law…, is that officers would have to contact federal immigration authorities and conduct such a check within a ‘timely manner’ and could not hold a person for a long period of time.”  We really couldn’t find anything in the law that addresses this concern or find any definition in the law of what constitutes  a “timely manner”, perhaps Mr. Erickson will point it out for us.

2)      Makes it a crime to “conceal” or “transport” an undocumented immigrant. Here is who would be subject to arrest:  Family members who let undocumented relatives live with them, religious missionaries who provide transportation to church events, volunteers form charity organizations who provide services to communities in need.  We wonder what happens to volunteers  who drive around in vans and encourage the homeless to come into shelters for the evening.   The punishment for “conealing” or “transporting” under 10 immigrants is a misdemeanor subject to six months in jail and a maximum $5,000 fine.  Over 10 people is a felony subject to “incarceration in a California State Prison for a minimum of one year.”  By the way, this ”minimum of one year” in prison is a bizarre and unlawful sentence under California’s determinate sentencing laws, Erickson is a lawyer though…or is he?  More on that later.  Anyway, you’d think they’d at least get criminal lawyers to write these things.

3)      Employer subject to criminal penalties under state law for employing undocumented immigrants. This one is really a beauty.  Here’s how it works:  The federal government needs to “communicate to the District Attorney” whether or not an undocumented immigrant or someone without a work visa was employed illegally. If the person is convicted of in federal court of illegal entry or violating the the terms of a visa, The DA is then required to file criminal charges under state law against the employer. The state court then must “expedite the action, including assigning the hearing at the earliest practicable date.”  Right, because this sort of crime is far more important than violent felonies…Then for a first violation here’s the punishment for the employer:

1)      Employer must fire the undocumented workers.

2)      Employer must be on “probation” for five years.  During the is probationary period, the employer must file quarterly reports with the District Attorney’s office detailing the immigration status for  “each new employee who is hired by the employer at the business location where the unauthorized alien performed work. The quarterly reports shall indicate the measures undertaken with the hiring and maintaining of each new employee during the period covered by the quarterly report to insure compliance with this Act…”

3)      The court shall order the appropriate agencies to suspend “all licenses that are held by the employer for a minimum of thirty business days.” Court can order a longer suspension if they find aggravating circumstances.

4)      The court must order the employer to file a signed sworn affidavit with the Distract Attorney which swears, under the penalty of California’s perjury law (which is a straight felony) that the employer will not intentionally or knowingly employ an undocumented worker.

5)      For a second violation, there is a $5,000 fine and the business permanently loses its business license for the location in which the undocumented immigrant worked.

4) Bizarre traffic law aimed at preventing people from picking up day laborer’s outside of Home Depot. Check this one out, it really speaks for itself.

A, It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway,

or highway to· attempt to hire or to hire and pick up passengers fo; work at a different

location if the motor vehicle blocks or impedes the normal movement of traffic,

B, It is unlawful for a person to enter a motor vehicle that is stopped on a street,

roadway, or highway in order to “be hired by an occupant of the motor vehicle and to be

transported to work at a different location if the motor vehicle blocks or impedes the

normal movement of traffic.

5)      If local governments try to limit the state law, private citizens can sue the local governments. OK, this really confuses us.  On one hand, the tea party credo is all about local control and they talk a big game about “nullifying federal law” by using state laws such as this proposed ballot measure.  But, if a local county or city government really wants to exert control by “nullifying” the state law and not going along with these strict immigration measures for valid reasons involving federalism (more on that too…), that local government can be sued by someone who does not even live in the offending city or county.   In other words, let’s say the city of Santa Monica refuses to go along with this nonsense and passes an ordinance that this new immigration law will be ignored, then they are subject to a lawsuit by someone who lives in a completely different part of the State.

More on this soon.  Stay tuned…