Peter Thomas Senese Urges New Yorker 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; howver, 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 cyberstalking. 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 abduciton 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 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 accordanc 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 litigate 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 Inpersonation 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 reknown 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 malicous 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.”


I 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 legisltion.

Senator Martin Golden 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

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.

Peter Senese: Honesty and Integrity In Child Custody Matters

As the rapidly expanding malignant tentacles known as international parental child abduction cruelly grasp at defenseless innocent children in countries around the world it is imperative that governments everywhere defend against this malice by passing and upholding local and national child abduction prevention laws. Critically, lawmakers must create abduction prevention laws while law enforcement and the judiciary must carefully uphold these laws that were created to protect innocence: our children.

As the vast majority of individuals around the world who advocate for targeted children will testify to, the most crucial component needed to fight the global war of international parental child abduction – and make no mistake: it is a war – is for child abduction prevention laws to be created and fully enforced.

Unfortunately, one of the heartbreaking issues that targeted parents face today is the great challenge and difficulties of having a court actually uphold new laws pertaining to risk factors associated with a potential child abduction. Judicial ignorance can no longer be an unspoken acceptable truth, and Lady Justice must remove her blindfold in the name of defending a child at risk of the horrific crime of parental kidnapping.

Lady Justice, hundreds of thousands of children each year targeted for cross-border criminal abduction need you to see. Today.

Before I go further, I will share an opinion many other targeted parents of abduction I have spoken to share with me: If a court handling a potential child abduction case establishes a zero tolerance policy toward any form of perjury, then the chicanery and intended fraudulent actions of a parent intending to mislead the court and abduct a child may actually be re-considered. A pretty simple policy: if you lie to the court, particularly when it comes to a child’s welfare, then you better be prepared to pay the consequences for your action: sitting in a cell for a period of time and losing your access privileges to your child that you previously may have been entitled to.

Presently, I am voluntarily assisting in several potential abduction cases, including a few cases that are located in the State of Florida. For those of you who may not be aware, on January 1st, 2011 Florida’s ‘Child Abduction Prevention Act’ that was drafted by child abduction prevention advocate and my good friend, Carolyn Vlk, became law. The law mandates judges to assess risk factors associated with a potential international child abduction and issue orders that will protect the targeted child and parent from a possible abduction.

However, in certain cases to which I am familiar with, there have been notable failures by the courts to fully utilize the new child abduction prevention law and carefully consider risk factors associated with a potential abduction as has been mandated under the new law.

Tragically, when a judge fails to uphold any child abduction prevention law, they have broken their fiduciary responsibility to protect a child. Equally, when a court fails to consider the criteria established under the new law, they are sending the worst type of message possible: that child abduction prevention laws mean nothing and would-be abductors will not be held accountable for their conspiracy to criminally abduct a child. And this – particularly when it comes to our children – is unthinkable.

The bottom line in weighing risk factors for a court is that a judge must ask this rather simple questions to themselves: ‘What if I am wrong and the child disappears? What true recourse does the targeted parent have to recover the child?”

Well, any knowledgeable judge will know that once a child is removed from their local jurisdiction and taken to another country, the jurisdiction of their court ceases to exist for all intensive purposes. Now jurisdiction belongs to the international courts, so long as the arriving country (the country where the child was illegally taken to) participates in an international treaty such as the 'Hague Convention on the Civil Aspects of International Child Abduction'. Regrettably, too many nations, including most Asian and Middle Eastern countries are not members of the Hague Convention, while other countries such as Mexico and Brazil are known to not uphold the international treaty they freely signed.

Truly, attempting to navigate an international parental child abduction is like ‘Chasing The Cyclone’.

Consider this: presently there are approximately 230 American children criminally detained in Japan due to a parental kidnapping. Japan is not a member of the Hague Convention. No American child-citizen abducted to Japan has ever been returned. Ever.

Or perhaps a judge should consider the difficulties that a targeted mother would face if her child were kidnapped to Saudi Arabia or any other Middle Eastern country. The prospect of mom safely bringing their child home is near non-existent.

So what exactly is it that a judge must do?

Act prudently at all times and in all circumstances while carefully investigating every aspect of each unique case. Additionally, the court must realize that for many, the international courts are extraordinarily difficult to navigate, that is, if a venue really even exists for a targeted parent to attempt to seek judicial intervention.

One component not often spoken about when considering risk factors is when a parent who may abduct files a (false) police report against the other parent. In scenarios such as this, the court must be mindful that international parental child abduction is a premeditated and well-planned act against both the abducted child and the left behind targeted parent, and that the parent planning an abduction is more than likely familiar with the international laws available to them that they may use to sanction their disobedience before the court.

Specifically, Article 13 of the Hague Convention reads:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

When a parent who is believed to be a potential abductor files a police report against the other parent the court must consider the validity of the complaint and move with great caution because the potential abductor may have now created a plausible but misleading defense under Article 13 of the Hague Convention that a return of the child back to the child’s country of origin may not be in the best interest of the child.

Thus, court’s must be especially mindful that if a parent is able to illegally depart the country of origin with the child, the difficulties of the targeted parent being able to legally return the child has grown exponentially. This said, the court’s must also consider if a complaint may be valid and act accordingly in the name of the best interest of the child.

The bottom line is this: we’re living in a multi-cultural society where individuals from around the world meet and have a child. At times, like in any other relationship, couples will separate or divorce. Unfortunately, too often the child of the partnership is used as a pawn in order to cause great hardship and pain to the targeted parent. International child abduction occurs, and is growing at substantial rates as shared in the report Carolyn Ann Vlk and I have published titled ‘Crisis In America: International Parental Child Abduction Today’. And most concerning is the fact that certain government policies such as the Western Hemisphere Travel Initiative have created loopholes for abduction (Click Here to read Peter Senese and Carolyn Vlk's report)

Therefore in lieu of the rapidly growing epidemic now at hand, it is the courts and their sitting judges who offer children with their best defense so long as these judges do not put their head in the sand and mistreat the issues of a potential threat of abduction with an uneducated view of the seriousness of the matters at hand. In order for a court to fulfill its duty to the child-citizens they are obligated to protect, a judge must consider all the risk factors of a potential abduction and act swiftly, boldly, and with action that will secure the safety and welfare of both targeted child and targeted parent.

Perhaps the best overall indicator of an abduction threat is when a parent with strong ties to another country is found to be dishonest to or mislead the court during any matters when it comes to the welfare of a child. Perhaps if the courts upheld the integrity of the procedures before them, including holding a parent accountable for perjury or contempt, judges may be able to prevent the cruelty of storms from descending on a child. Perhaps each court hearing involving a child’s welfare should begin with a judge saying, “Welcome to my courtroom. I want both parties to know that if either of you act in any dishonest way or fail to obey my direction in any capacity, I will hold you in contempt of court. Now let’s proceed.”

For more information on international parental child abduction please visit Chasing The Cyclone. To visit Peter Thomas Senese's official website, please Click Here.