AB 1104

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Date of Hearing: March 28, 2017

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair
AB 1104 (Chau) As Introduced February 17, 2017

SUBJECT: The California Political Cyberfraud Abatement Act

SUMMARY: Prohibits an individual from making false or deceptive statements on the Internet
about a political candidate or measure on the ballot, and expands Californias political
cyberfraud law to protect candidate campaigns in addition to the existing protections for ballot
measures. Specifically, this bill:

1) Prohibits a person, with intent to mislead, deceive, or defraud, from committing an act of
political cyberfraud against a candidate for public office, based on the existing definition of
political cyberfraud.

2) Prohibits a person from knowingly and willingly making public or circulating on the Internet,
or causing to be made published or circulated in any writing posted on the Internet, a false or
deceptive statement designed to influence the vote on an issue submitted to voters or a
candidate for public office.

EXISTING LAW:

1) Pursuant to the "California Political Cyberfraud Abatement Act" makes it unlawful for a
person, with intent to mislead, deceive, or defraud, to commit an act of political cyberfraud,
and defines political cyberfraud" as an act concerning a political website of a statewide
ballot measure that is committed with intent to do one of the following:

a) Deny a person access to a political website;

b) Deny a person the opportunity to register a domain name for a political website; or

c) Cause a person reasonably to believe that a political website has been posted by a person
other than the person who posted the website. (Elections Code Section 18320 et seq.)

2) Makes it unlawful for a person, with bad faith intent, to register, traffic in, or use a domain
name that is identical or confusingly similar to the personal name of another living person or
deceased personality, without regard to the goods and services of the parties. (Business &
Professions Code Section 17525)

3) Makes it an alternate felony-misdemeanor to falsely impersonate another person by

intentionally assuming the identity of another person where it is likely that the person whose
identity was assumed could become liable to criminal prosecution or a lawsuit, or be subject
to a debt or penalty. The crime is also committed where the defendant intentionally assumed
the identity of another person under circumstances where a benefit "might accrue" to the
defendant or any other person. (Penal Code Section 529)
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4) Makes libel and slander unlawful, defining libel as false, unprivileged written publication
that causes injury, and defining slander as a false, unprivileged oral communication that
causes injury. (Civil Code Section 45-46)

5) Requires a person who is found liable in a civil action for making libelous or slanderous
statements against an opposing candidate during the course of an election campaign forfeit
the office to which he or she was elected, if the libel or slander was a major contributing
cause in the defeat of the opposing candidate, and the statement was made with the
knowledge that it was false or with reckless disregard of whether it was false or true.
(California Constitution, Article VII, Section 10)

6) Provides that "Congress shall make no law ... abridging the freedom of speech, or of the
press" and under the California Constitution, provides that "every person may freely speak,
write and publish his or her sentiments on all subjects, being responsible for the abuse of this
right. A law may not restrain or abridge liberty or speech or press." (U.S. Constitution,
Amendment I; California Constitution; Article I, Section 2)

FISCAL EFFECT: None. This bill is keyed nonfiscal by the Legislative Counsel.

COMMENTS:

1) Purpose of this bill: This bill is intended help eliminate fake news and political cyberfraud
in campaigns and elections by applying existing anti-fraud protections for ballot measures to
candidates as well. This measure is author-sponsored.

2) Authors statement: According to the author's office, this bill attacks the problem of 'fake
news' by creating a new state law designed to make it illegal for someone to make false or
deceptive statements about a candidate or measure on the ballot. The bill also expands
Californias political cyberfraud law to provide protections to candidate campaigns in
addition to the current law protections for ballot measures. This bill is an important step
forward in the fight against 'fake news' and deceptive campaign tactics.

3) Fake news: Misinformation campaigns, also known as fake news pose a real danger to our
democracy. In a January 2017 report, the federal Office of the Director of National
Intelligence issued a report entitled "Assessing Russian Activities and Intentions in Recent
US Elections" stating that "Russian efforts to influence the 2016 US presidential election
represent the most recent expression of Moscows longstanding desire to undermine the US-
led liberal democratic order, but these activities demonstrated a significant escalation in
directness, level of activity, and scope of effort compared to previous operations."

"We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed
at the US presidential election. Russias goals were to undermine public faith in the US
democratic process Moscows influence campaign followed a Russian messaging strategy
that blends covert intelligence operationssuch as cyber activitywith overt efforts by
Russian Government agencies, state-funded media, third-party intermediaries, and paid social
media users or 'trolls.'Russias state-run propaganda machine contributed to the influence
campaign by serving as a platform for Kremlin messaging to Russian and international
audiences."
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In response to this threat, both major political parties as well as minor political parties have
raised serious concerns about the publics lack of ability to distinguish between factual and
fake news reports posted on the Internet. Since the November 2016 election, Facebook,
Google and other websites have changed their advertising policies in an effort to screen out
fake news sources. There is also some question as to whether elections statutes must change
as well.

A 2008 report by Common Cause, The Century Foundation and The Lawyers Committee for
Civil Rights Under Law, titled Deceptive Practices 2.0: Legal And Policy Responses
describes various tactics used to disseminate false or misleading information over the
Internet. The report highlights several state laws on the books in other states that prohibit
false and deceptive statements about a candidate or measure and that have withstood
constitutional challenges in the courts.

In particular, the Common Cause report discusses a Colorado law (Colorado Revised Statutes
Section 1-13-1090 that makes it unlawful to knowingly and willingly publish false or
deceptive statements on the Internet that are designed to influence the vote on a ballot
measure or candidate. This bill is modeled on the Colorado law and makes it unlawful in
California for a person to knowingly and willingly make, publish or circulate on the Internet
a false or deceptive statement that is designed to influence the vote on a ballot measure or
candidate for public office.

4) Californias political cyberfraud laws: The "California Political Cyberfraud Abatement

Act" (Act), prohibits cyberfraud in ballot measure campaigns and first went into effect in
2002 [SB 412 (Vasconcellos), Chapter 927, Statutes of 2001]. The law had a sunset provision
but was later re-enacted as a permanent law in 2003 [AB 277 (Dutra), Chapter 277, Statutes
of 2003].

The Act applies specifically to ballot measures not candidates and makes it unlawful for a
person with intent to mislead, deceive, or defraud to commit an act of political cyberfraud.

"Political cyberfraud" is defined as an act concerning a political website of a statewide ballot

measure that is committed with intent to do one of the following:

Deny a person access to the website of a ballot measure proponent or opponent;

Deny a person the opportunity to register a website domain name for or against a ballot
measure; or
Cause a person reasonably to believe that a website has been posted by a ballot measure
proponent or opponent and that the views on the website represent the proponents or
opponents views. (Elec. Code 18320 et seq.)

The Act prohibits specific activities, such as:

Intentionally diverting or redirecting access from a ballot measure proponent or

opponent website to another website;
Intentionally preventing access to a ballot measure proponent or opponent website
through electronic measures;
Registering a domain name similar to the domain name used by the official proponent or
opponent of a ballot measure;
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Registering and holding a domain name for a political website and/or reselling the
domain name with the intent to prevent a ballot measure proponent or opponent from
using the domain name.

5) A two-pronged approach: This bill has two parts. Part one prohibits false statements
designed to mislead voters and change the outcome of an election, and closely mirrors a
Colorado law that makes it unlawful for a person to knowingly and willingly make, publish
or circulate on an Internet website a false or deceptive statement designed to influence the
vote on a ballot measure or candidate.

Part two expands Californias existing political cyberfraud laws to include protection for
candidates for public office against interference with voter access to official candidate
websites and prohibiting misleading domain names that could lead voters away from official
candidate websites. Current law only provides political cyberfraud protection to proponents
and opponents of ballot measure campaigns.

6) First Amendment considerations: By limiting the use of domain names by individuals and
limiting the types of political speech permitted in a campaign, some might argue that this
measure could be interpreted as a violation of the United States and California Constitutions
rights to free speech. While the right to freedom of speech is not absolute, when a law
burdens core political speech, the restrictions on speech generally must be "narrowly tailored
to serve an overriding state interest," McIntyre v. Ohio Elections Commission (1995), 514 US
334.

In 2016, the United States Court of Appeal for the Sixth Circuit struck down an Ohio
political false statements law Susan B. Anthony List v. Ohio Elections Commission (Susan
B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir.2016)). The Ohio law made it illegal to
[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a
candidate, either knowing the same to be false or with reckless disregard of whether it was
false or not, if the statement is designed to promote the election, nomination, or defeat of the
candidate" (emphasis added). Unlike the Colorado law on which this bill is mirrored, the
Ohio law did contain a narrow knowing standard.

The Colorado law on which the false statements provision of this bill has been modeled, was
first passed by the Colorado legislature in the 1980s and was most recently amended in 2005
to remove the word written from the statute, so that the Colorado law would apply to all
written and electronic communication. The fact that the Colorado law has been on the books
for so long without a legal challenge may indicate that it is narrow enough to withstand a
First Amendment challenge, but that remains to be seen.

Because the second half of this bill simply expands to candidates a 15-year-old California
law applying to ballot measure committees, it is unclear on what grounds a court could
overturn that existing precedent.

7) Prior Legislation: AB 277 (Dutra), Chapter 277, Statutes of 2003, removed a sunset
provision to make permanent the California Political Cyberfraud Abatement Act.
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SB 412 (Vasconcellos), Chapter 927, Statutes of 2001, created the California Political
Cyberfraud Abatement Act, and prohibited cyberfraud as to ballot measure campaigns
subject to a sunset provision.

8) Double-referral: This bill is double-referred to the Assembly Elections and Redistricting

Committee, where it will be heard if passed by this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file.

Opposition

American Civil Liberties Union of California

Analysis Prepared by: Jennie Bretschneider / P. & C.P. /