Wednesday, January 29, 2014

Cyberimpersonation, the Unique Device Identifier and Harassment

After MaKenna Portuguez obtained a restraining order to prevent Ethan Espiritu, a former friend and high school classmate, from harassing her”, Ethan appealed, claiming “the evidence was insufficient to support the trial court's finding that he had sent certain unwanted text messages to MaKenna.”  Portuguez v. Espiritu, 2014 WL 261327 (California Court of Appeals 2014).  As Wikipedia explains, a restraining order is a
court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court's injunction power to grant equitable remedies. A party that refuses to comply with an order faces criminal or civil penalties. . . .
In this case, Portuguez asked the court to issue a restraining order under California Code of Civil Procedure § 527.6 to prevent further incidents of conduct she described at the hearing on her request.  Portuguez v. Espiritu, supra.  According to the opinion, at the hearing the judge held on her motion for the order, Portuguez testified that in 2010

she gave Ethan her e-mail address and password so he could set up a Skype account for her. When Ethan was at her home in December of that year, she gave him the password for her home wireless Internet, and he connected his telephone to her computer. MaKenna testified that whenever she is at home, her telephone automatically connects to the wireless Internet.

According to MaKenna, Ethan started compromising her Internet accounts in mid–2011 and continued to do so for several months. He changed her passwords and enabled a password recovery feature that sent her new passwords to his e-mail account.

MaKenna also testified that in the summer of 2011, various Internet accounts were created in her name. Numerous messages concerning her relationship with Ethan that appeared to be from MaKenna but actually were not were posted to or sent from these accounts. For example:

— Several messages were posted over the course of a week on a Twitter account that included MaKenna's name and a photograph from her Facebook page. Some messages contained abusive and obscene language that expressed anger over the termination of the relationship, while others mentioned a `Cinderella story’ and expressed sadness the relationship had ended. . . .

Portuguez v. Espiritu, supra.  Portuguez also said she “received numerous unwanted communications” from Espiritu “in the summer and fall of 2001”, including these:

— In November, MaKenna received a series of text messages from Ethan while she was riding home from school with her friend Kyle. One . . .  stated: `I knew you were a cheat. You always were. You lying bitch. I hope they [f]* *k you and get you pregnant so you can kill another one.’ Another stated: `Girl[,][I] hate you. I wish[ ] you would disappear. You messed up so don[']t even come around me.’ . . . MaKenna . . . `was upset that [Ethan] would talk to [her] that way.’. . .

Portuguez v. Espiritu, supra. 

Portuguez also testified that from “December 2011 through February 2012, MaKenna testified she received several text messages through a service called Pinger, which allows subscribers to send text messages without paying a fee.”  Portuguez v. Espiritu, supra. They included the following:

— `You left [C]atholic school to go to a public school. Now you left public to go back to a private [C]atholic school? If you think you're escaping the problem, you aren't. I asked people and they wouldn't tell me but I have my ways of finding things out.’ MaKenna found this message `pretty odd and scary.’

— `I don't know why you keep changing your number when all I want to do is talk to you. [S]eeing you Friday made me realize what I've lost. [P]lease answer back. I miss you.’

Portuguez v. Espiritu, supra. 

The opinion explains that records obtained from Pinger

listed an account username that combined a nickname for MaKenna with Ethan's date of birth, contained the e-mail address that was created in MaKenna's name in the summer of 2011, and showed the messages originated from IP addresses for MaKenna's telephone and home wireless Internet. MaKenna denied sending the messages.
MaKenna testified she transferred to a different high school the day after she received the text message from Ethan about flattening her friend Kyle's tires because she `was tired of the harassment from Ethan.’ She also testified she wanted a restraining order because she was `afraid of Ethan’ based on his creation of Internet accounts in her name, impersonation of her, sending her messages, and attempts to find out her mobile telephone number and location.

Portuguez v. Espiritu, supra. 

To support her application, Portuguez called Jeffrey Tutton, a computer security

specialist, to testify . . . on cyberimpersonation. Tutton testified that every device manufactured by Apple Inc. has a unique device identifier (UDID), and every device connected to the Internet (whether manufactured by Apple Inc. or another company) has an Internet protocol (IP) address to and from which electronic information is sent. According to Tutton, the UDID of another person's telephone can be obtained by physically accessing the telephone, or by running readily available UDID detection software on one's own telephone while it is connected to the same wireless network to which the other person's phone is connected or while it is physically connected to a computer on the other person's network.

Tutton also explained that the IP address of a device connected to the Internet can be obtained by physically accessing the device; by obtaining the password for the network to which the device is connected, accessing the network, and running an Internet connection speed test on the network; or by sending an e-mail and getting a response stating that the e-mail was opened and identifying the IP address of the device on which it was opened. Finally, Tutton testified that by obtaining the UDID and the IP address for another person's telephone, entering the UDID into a program on one's own telephone, and remotely accessing the other person's IP address, one can send from his own telephone text messages that appear to have been sent from the other person's telephone. . . .

Portuguez v. Espiritu, supra. 

Espiritu’s testimony at the hearing “differed substantially” from Portuguez’s:

Ethan contradicted MaKenna's testimony about his access to her home Internet and her Internet accounts. Ethan denied he ever connected his device to the wireless Internet at MaKenna's house, but admitted he logged on to her home computer with her and accessed a Web site. Ethan admitted changing some of MaKenna's Internet account passwords because he was angry, but denied ever compromising her Google e-mail account. . . .

Ethan testified he broke up with MaKenna in mid-October 2011 and `didn't want to do anything with her anymore.’ He admitted he sent her the message in November 2011 calling her a `cheat’ and a `lying bitch’ because he was angry she was with Kyle, but denied ever threatening to flatten Kyle's tires. Ethan also denied sending other messages MaKenna claimed she had received from him after the breakup. In fact, Ethan testified, he received several unwanted messages from MaKenna. . . .

Finally, Ethan testified he never had a Pinger account and never sent MaKenna any text messages through Pinger. . . . He testified such accusations `made [him] very jumpy,’ and he found it `nerve-racking that someone [was] using his name and . . . texting other people. . . .[I]t's made [his] life a wreck. It's ruined [his] ... social life at school.’

Portuguez v. Espiritu, supra. 

In his appeal, Espiritu argued that the restraining order “must be reversed because it `is contrary to substantial evidence in the record.’” Portuguez v. Espiritu, supra.  The Court of Appeals began its analysis of his argument by noting that the standard on appeal is

`whether the findings (express and implied) that support the trial court's entry of the restraining order are justified by substantial evidence in the record.’ (R.D. v. P.M. (California Court of Appeals 2011) 202 Cal.App.4th 181). Evidence is substantial if it is reasonable, credible, and of solid value such that a reasonable person might accept it as adequate to support a conclusion. (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (California Supreme Court 1983) 34 Cal.3d 15. . . .). In reviewing a record for substantial evidence, we resolve all factual conflicts and credibility questions in favor of the prevailing party and draw all reasonable inferences in support of the trial court's order. (USS–Posco Industries v. Edwards, (California Court of Appeals 2003) 111 Cal.App.4th 436). . . `If . . . substantial evidence supports the trial court's findings and conclusions, the judgment must be affirmed.’ (Board of Education v. Jack M. (California Supreme Court 1977) 19 Cal.3d 691).

Portuguez v. Espiritu, supra. 

The court then explained that, under California law, harassment is

`[a] knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.’ (California Code of Civil Procedure § 527.6(b)(3)). A `[c]ourse of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including . . . making harassing telephone calls to an individual, or sending harassing correspondence . . . by any means. . . .’ ’ (California Code of Civil Procedure § 527.6(b)). If . . . the trial court `finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.’ ’ (California Code of Civil Procedure § 527.6(i)).  

Portuguez v. Espiritu, supra. 

The Court of Appeals found the evidence Portuguez presented was sufficient to justify

the challenged order. The trial court heard testimony from Ethan that he disrupted MaKenna's Internet accounts by changing the passwords and sent her text messages containing angry and obscene language after the breakup of their relationship. The court also heard testimony from MaKenna that over the course of several months, Ethan sent her numerous unwanted electronic communications, some professing love for her and others hatred. The court could infer from [her] testimony that Ethan had created Internet accounts in her name and posted private information about the status of their relationship and MaKenna's emotional state.

Tutton provided expert testimony from which the court could infer that Ethan cyberimpersonated MaKenna by using the Pinger account to send her threatening text messages and make it appear she had sent them herself. Such a `socially unacceptable course of conduct would have seriously alarmed, annoyed, or harassed a reasonable person, and would have caused a reasonable person to suffer substantial emotional distress.’ (Brekke v. Wills (California Supreme Court 2005) 125 Cal.App.4th 1400.) Indeed, MaKenna testified that Ethan's barrage of unwanted communications disturbed her sleep and made her so upset and fearful that she had to change schools.

Portuguez v. Espiritu, supra. 

Espiritu claimed the order should be reversed because the trial court’s “essential}

`factual finding’ that he sent the text messages that were delivered to MaKenna through Pinger `is contrary to the expert testimony.’ According to Ethan, Tutton testified that `momentary possession’ of MaKenna's telephone was required to obtain the UDID, but it was `uncontroverted that [Ethan] never had possession of the device.’ Ethan further contends reversal is required because `all the evidence shows’ MaKenna `was texting herself out of spite due to being rejected by [Ethan].’

Portuguez v. Espiritu, supra (emphasis in the original).

The Court of Appeals did not agree, noting that Portuguez and Espiritu both denied

sending them, but the court expressly found MaKenna more credible than Ethan. The records obtained from Pinger showed the messages originated from a UDID and IP address belonging to MaKenna, but Tutton testified that a person who had physically accessed MaKenna's telephone or whose device was connected to her wireless Internet network while her telephone was also connected could obtain the UDID and IP address and later use that information to send a text message from some other device and make it appear the message had been sent from MaKenna's telephone.

Although . . . no evidence was presented that Ethan had physical access to MaKenna's telephone, based on Tutton's testimony, Ethan could have obtained MaKenna's UDID by remotely accessing her home wireless Internet network (for which she testified Ethan had the password) at any time her telephone was connected. Thus, while some evidence supported Ethan's theory that MaKenna sent herself the text messages through Pinger, other evidence supported MaKenna's theory that Ethan sent them and made it look like she did.

Portuguez v. Espiritu, supra (emphasis in the original).

The Court of Appeals also pointed out that, as the trial judge recognized, who sent the

messages through Pinger was `not the only fact in the case.’ Even if we disregard the evidence in favor of MaKenna on that issue, other evidence established Ethan's harassment. . . . For example, there was evidence that Ethan (1) disrupted MaKenna's Internet accounts by changing the passwords on multiple occasions; (2) set up false Internet accounts in her name and posted private information about her; (3) disturbed her sleep by sending her nine text messages within 25 minutes; and (4) sent her multiple messages that contained obscene or threatening language and that caused her to switch schools to get away from him.

Portuguez v. Espiritu, supra.  It therefore affirmed the trial judge’s granting the restraining order. Portuguez v. Espiritu, supra. 

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