[Eugene Volokh] California (unintentionally?) recriminalizes libel — and criminalizes disclosure of private facts, right of publicity infringements and more

California Penal Code § 530.5(a) provides that it is a crime to “willfully obtain[] personal identifying information … of another person” and use it “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.” “Personal identifying information” means “any name, address, telephone number” or one of many other identifying items (such as Social Security number, bank account number, and the like). And “person” covers not just individuals but also “any other legal entity,” including corporations.

Now you might think that this is a statute aimed at identity theft — i.e., impersonating someone to get credit, goods or services. And the statute is even called the California “identity theft” statute. But it is, oh, so much more! As California courts have read its terms, the statute

1. reinvents criminal libel law (California’s criminal libel was repealed in 1986)
2. makes it a crime to commit the tort of disclosure of private facts, so long as the disclosure uses a person’s name,
3. makes it a crime to commit the tort of interference with contract, so long as the defendant’s actions used a person’s or business’s name,
4. makes it a crime to infringe a person’s right of publicity,
5. and likely much more.

Pretty surprising — it surprised me. But that’s the logical implementation of how California courts have read the statute.

1. California courts have held that the statute is not limited to behavior that is generally viewed as “identity theft,” such as impersonation, or intent to defraud. “[T]he statute itself does not use [the] phrase [‘identity theft’], nor does it require that a defendant portray himself as someone else…. [T]he statute does not, in fact, require that a defendant have personated another in using another individual’s personal identifying information in order to be convicted under its terms.” People v. Barba (Cal. Ct. App. 2012). “[Section 530.5(a)] clearly and unambiguously does not require an intent to defraud.” People v. Hagedorn (Cal. Ct. App. 2005).

2. California courts have also held that the “unlawful purpose” could be a purpose to commit a merely civil actionable tort, even if that tort is not itself a crime. They have said so as to libel. In re Rolando S. (Cal. Ct. App. 2011) and People v. Casco (Cal. Ct. App. 2015) (nonprecedential). They said so just last month as to disclosure of private facts. People v. Bollaert (Cal. Ct. App. 2016). But this logic would equally apply to using a person’s name or other attributes in other torts (at least intentional torts), such as interference with contract, violation of the right of publicity and the like.

3. And the statute applies even when the identifying information was acquired lawfully (neither criminally nor tortiously), and without any intention of committing a crime. Rolando S. The crime is committed when this information, however properly acquired, is used in (among other things) the commission of a tort.

So let’s look at the most recent of these decisions, Bollaert. Bollaert was a revenge porn extortionist: He urged people to post “private, intimate photographs of others along with that person’s name, location and social media profile links” on one of his sites, and then had another site on which victims could pay to get the information removed. This behavior was criminal extortion (a form of blackmail) quite apart from a violation of the identity theft statute, and indeed Bollaert was convicted of extortion.

But he was also convicted of violating § 530.5:

[T]he term “unlawful” as used in section 530.5 includes intentional civil torts, including those relied upon by the People here: invasion of privacy by means of intrusion into private affairs and public disclosure of private facts.

And by revealing people’s “identifying information” — “full names, locations, and Facebook links, as well as the nude photographs themselves” — with the purpose of committing a tort, Bollaert was committing a crime.

4. Now I have argued that narrowly and clearly written revenge porn bans are constitutional (pp. 1405-06). But nothing in Bollaert’s § 530.5 discussion was limited to revenge porn, or to extortion.

Say, for instance, that Kendra Schmollaert, Kevin Bollaert’s second cousin, has a blog with a couple of thousand readers. She publishes a blog post that mentioned an acquaintance’s formerly private sex scandal (or medical prob