It was the most inspiring story to come out of the 2012 college football season. As you probably recall, Manti Te’o—a star linebacker for the University of Notre Dame—became famous for his courage and perseverance after he continued playing for his team even after his grandmother and his girlfriend died, both on September 11, 2012. Mr. Te’o told reporters that he had promised his girlfriend, a college student who was battling leukemia, that he would keep playing even if something happened to her. It was an uplifting, if bittersweet, story. It was also just not true. As late-night comedians reminded us for several weeks in January of 2013, there was no girlfriend. An acquaintance invented a fictitious woman and enticed Mr. Te’o into an online romance.
An inspiring story quickly became a punch line. It is hard to see what harm was done, beyond some embarrassment for Mr. Te’o that has largely faded from the public view (although the episode is not entirely forgotten. See, Ralph D. Russo, Manti Te’o: Will the Vikings Take the Notre Dame Star?, St. Paul Pioneer Press (Apr. 22, 2013) online at http://www.twincities.com/vikings/ci_23078366/manti-teo-will-vikings-take-notre-dame-star?nstrack=sid:3438136|met:300|cat:0|order:6). There does not seem to have been any lasting consequences for the victim, but what about the person who did it? Did he commit a crime? Was it illegal to make up a person and have “her” get involved with someone?
Mr. Te’o was the victim of “catfishing.” “Catfishing” is an internet hoax in which a person creates a false online identity. Typically, the goal of the catfisher is to trick the victim into an online social or romantic relationship. The term comes from the 2010 film “Catfish,” which purported to track the progress of an online relationship between a young man and a fictitious woman. As a character in that film explained, the term “catfishing” originated with the practice of commercial fisherman who put a catfish in with a catch of other fish, to make sure that the other fish continue moving and so remain fresh for market. See http://en.wikipedia.org/wiki/Catfish_(film). A reality television show based on the film premiered on MTV in November of 2012.
Catfishing may be confused with identity theft, but the two are not synonymous. Identity theft, as defined in section 3 of the Identity Theft Assumption and Deterrence Act, 18 U.S.C. § 1028, involves taking the personal identifying information (usually, including the victim’s Social Security, credit card, or bank account numbers) of a living person, intending to use that information to commit a crime. Usually, catfishing is creating an alias and pretending that the alias is a real person. The alias is often given credibility by postings of pictures of a real person who may or may not be involved with the hoax. A catfisher is not appropriating someone else’s likeness; he or she is making up a new person, and taking the identity of this “imaginary friend.”
If catfishing is not the same as identity theft, is it still illegal? Several states have enacted criminal impersonation laws that make it unlawful to pretend to be someone else. These statutes usually include other types of impersonation, such as practicing a profession without a license (Neb. Rev. Stat. § 28-638 (1)(b)), or pretending to be a government official (Tenn. Code § 39-16-301 (a)(3)). The specific conduct that is prohibited varies from state to state. In California, a person is guilty of criminal impersonation if he or she “credibly impersonates another living person.” See, Cal. Penal Code § 528.5, effective January 1, 2011. The criminal impersonation statutes in Connecticut (Conn. Gen. Stat. § 53a-130) and New York (N.Y. Penal Code § 190.25) make it a crime to “impersonate another.” Courts in those two states have interpreted these statues to mean impersonation of another living person. See, e.g., State v. Smith, 194 Conn. 213, 479 A.2d 814 (1984) (“The statute as written does not prohibit giving a false name; it prohibits impersonating another.”); People v. Powell, 59 A.D.2d 950, 399 N.Y.S.2d 477 (2d Div. 1977).
Most criminal impersonation statutes define the crime as “assuming a false identity.” See, e.g., Ala. Code § 13A-9-18; Alaska Stat. § 11.46.570; Colo. Rev. Stat. § 18-5-113; N.J. Stat. § 2C:21-17 (“Impersonates another or assumes a false identity”); Tenn. Code § 39-16-301; Wash. Rev. Code § 9A.60.040.The issue of whether a person may be prosecuted under these laws for assuming a fictitious identity—as opposed to the name or identity of a real person—has not been addressed by the courts very often. Courts that have addressed this issue have held that a person may be convicted of criminal impersonation even if he or she is not impersonating a real person, but has taken on the “identity” of a fictitious person. See, People v. Jones, 841 P.2d 372 (Colo. App. 1992) (defendant applied for student loans in his own name, but used a false Social Security number); McCleaf v. State, No. 385, 2000 (Del. Dec. 4, 2001) (defendant identified himself to law enforcement by a name he claimed to have adopted “as a matter of common law.”). The use of any false name—even one that is entirely the product of the defendant’s imagination—will support a conviction. Do these laws make any use of a false name a crime? For example, would a person who makes up an online persona in order to remain anonymous while commenting on internet sites be committing a crime?
Criminal impersonation statutes are usually specific-intent crimes. In order to secure a conviction under the laws that make it a crime to assume the identity of another, the state must prove the purpose behind the impersonation. The criminal purpose is generally an intent to defraud or harm another person by means of the impersonation. For example, the criminal impersonation statutes in Washington make unlawful for a person to assume a false identity and do “an act in his or her assumed character with intent to defraud another or for any other unlawful purpose . . ..” Wash. Rev. Code § 60.040. The statute does not include a definition of the term “with intent to defraud another.” The Washington Court of Appeals has defined the term in this context as intending to cause injury or loss to a person by deceit. State v. Stean, No. 65072-6-I (Wash. App. May 31, 2011), citing State v. Simmons, 113 Wash. App. 29, 32, 51 P.3d 828 (2002). The “injury or loss” that must be shown is not necessarily financial injury or loss. Convictions for criminal impersonation have been upheld when a false name was given to law enforcement and jail personnel when a defendant was arrested and detained, State v. Stroop, No. 41619-1-II (Wash. App. Apr. 3, 2012), or giving a false name when pulled over for a traffic violation. See, State v. Stean, supra; State v. Tyrer, 143 Wash. App. 1048 (2008). Evidence of the intent to deceive was sufficient evidence of the intent to defraud or other unlawful purpose. State v. Stean, supra.
Do laws like this make catfishing a crime? The person who takes a false name to remain anonymous while commenting on a news site is probably not at risk, provided their activity is limited to posting comments and they aren’t pretending that they really are the other person. The situation becomes more doubtful when there is some other motive behind the false identity, such as seeking revenge, or even pulling a prank. In those situations, the catfisher is not seeking any kind of material gain for him or herself, and probably is not acting with the intent to do something unlawful (making someone look foolish is generally not unlawful). On the other hand, they are trying to “deceive,” in the sense that they are trying to make their victim believe they are communicating with a real person. The question really is, how broadly are state prosecutors willing to read terms like “injury or loss?” If the idea of injury can be extended to embarrassment, or if loss includes a loss of some dignity, then catfishing season has opened in the courts.