People v. Bollaert

• Citation: 203 Cal.Rptr.3d 814,248 Cal.App.4th 699
• Decision Date: 28 June 2016
• Docket Number: D067863
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin Christopher BOLLAERT, Defendant and Appellant.

248 Cal.App.4th 699

203 Cal.Rptr.3d 814

The PEOPLE, Plaintiff and Respondent

v.Kevin Christopher BOLLAERT, Defendant and Appellant.

D067863

Court of Appeal, Fourth District, Division 1, California.

Filed June 28, 2016

Patrick J. Hennessey, Jr., San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Junichi P. Semitsu, Garrett A. Gorlitsky, Deputy Attorneys General, and Steven Taylor Oetting, Deputy Solicitor General, for Plaintiff and Respondent.

O'ROURKE

, J.

A jury convicted Kevin Christopher Bollaert of extortion (Pen.Code,¹

§ 520 ; counts 3, 16, 18, 21, 27, 29) and the unlawful use of personal identifying information (§ 530.5, subd. (a); counts 2, 4–15, 17, 19, 20, 22–24, 26, 28), stemming from his operation of Web sites, “UGotPosted.com,” through which users posted private, intimate photographs of others along with that person's name, location and social media profile links, and “ChangeMyReputation.com,” through which victims could pay to have the information removed. As to some of the victims, the jury unanimously found that Bollaert committed the unlawful act of an invasion of privacy by disclosure of private facts. The trial court declared a mistrial as to one of the identity theft charges (count 25) and a conspiracy charge (count 1). It sentenced Bollaert to a split sentence of 18 years: eight years of local confinement followed by 10 years of mandatory supervision.²

Bollaert contends his convictions under section 530.5, subdivision (a) must be reversed for insufficient evidence because (1) he is immunized from liability under section 530.5, subdivision (f) as an “interactive computer service” or “access software provider” within the meaning of the Communications Decency Act (the CDA; 47 U.S.C. § 230(c)(1)

);³ (2) he did not take action to develop or create the content of his Web site, and therefore was not liable as an “information content provider” as defined by the CDA; and (3) he did not willfully obtain the personal identifying information for an unlawful purpose. Bollaert further contends there is insufficient evidence supporting his extortion convictions because he did not directly or implicitly threaten any of the victims to expose any secret; the alleged secrets—the photographs—were already in the public domain; and he merely engaged in a business practice whereby legally posted information could be removed. Finally, Bollaert contends the trial court erred by giving the jury instructions on civil liability—CACI Nos. 1800 and 1801—regarding intrusion into private affairs and public disclosure of private facts.

We conclude the evidence is sufficient to support Bollaert's convictions for unlawful use of personal identifying information as well as extortion, and that the jury's rejection of CDA immunity is likewise supported by evidence that Bollaert developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA. We further conclude Bollaert invited the claimed instructional error, but hold in any event that he has not shown error in the instructions as a whole. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND⁴

In 2012, 2013 and 2014, a number of individuals discovered that photographs of themselves, including nude photographs, as well as their names, hometowns, and social media addresses, had been posted without their permission on a Web site, UGotPosted.com. Most of the pictures were taken by or for former significant others or friends.⁵ Some of the pictures the victims had taken on their own phones or placed on personal webpages for private viewing by themselves or select others. Some had been taken while the victim was drugged and in a compromised state or otherwise unaware of the photographing. Victims received harassing and vulgar messages from strangers. Many of the victims contacted the Web site administrator at UGotPosted.com to try to get their photographs and information removed without success. One of the victims testified that when she tried to communicate with the UGotPosted contact, she reached a person named “James Smith,” not realizing it was Bollaert, who told her that to remove her photos she would have to provide two forms of identification and show an unspecified sign. The UGotPosted Web site contained a link to another Web site, ChangeMyReputation.com, where victims were told that for payment of a specified amount of money, their pictures and information would be taken down. Six of the victims paid money to an account on ChangeMyReputation.com to have their pictures removed from the Web site.

Bollaert was the administrator and registered owner of the UGotPosted Web site. He created it with another person, Eric Chanson, who eventually declined to participate and transferred his interest to Bollaert. Bollaert was in control of the Web site, and he managed and maintained it; changed, added and deleted content; and updated software that operated the site. He designed the Web site so that he had to review the content before it was posted, and it had “required fields” by which a user who wanted to post pictures of another person had to input that other person's full name, age, location (“city, state, country”) and Facebook link. Bollaert had the only user account on the computer; he looked at every single post that came through the Web site and decided what would get posted on it, placed watermarks on each photograph to discourage others from stealing the pictures, and accessed the site remotely. He kept a spreadsheet recording every single post. Bollaert would not post pictures that he deemed “garbage,” including pictures that did not include nude persons. He removed pictures of minors and some other content depending on the nature of the request. He moderated and approved the comments that were posted on the Web site, and edited the contents of the posts. At some point, Bollaert received about $800 or $900 in monthly income from advertising off the site. Bollaert felt the Web site was “kinda fun and entertaining” at the beginning, but he later took it down because it was causing him stress and “ruining his life.”

Bollaert also set up and managed the Web site ChangeMyReputation.com, to which individuals who had pictures posted on the UGotPosted site would be directed and told they could pay money to have the information removed. A Department of Justice forensic auditor determined that victims paid a total of $30,147.73, which eventually was forwarded to Bollaert's personal PayPal account. Law enforcement later used Bollaert's site to contact victims. At one point, a legal analyst with the Attorney General's office created a user account and attempted to post pictures of her pet cats on the Web site, but they never appeared.

At trial, the People proceeded on the charges of unlawful use of personal identifying information (§ 530.5, subd. (a)) under three theories: That Bollaert, without authorization, willfully obtained the victims' personal identifying information via the design, maintenance and operation of the Web site UGotPosted.com for the unlawful purpose of annoying or harassing via electronic communication device under section 653m, subdivision (a).⁶ Or, that Bollaert, without authorization, willfully obtained the victims' personal identifying information for the unlawful purpose of an invasion of privacy either via public disclosure of private facts, or intrusion into private affairs. Bollaert defended in part on grounds his Web site was an interactive computer service or access software provider expressly immunized under subdivision (f) of section 530.5 because there was no evidence of intent to defraud, and was also protected under the CDA. The court instructed the jury on these theories and Bollaert's defense at Bollaert's request.⁷

DISCUSSION

I. Convictions for Unlawful Use of Personal Identifying Information (§ 530.5 )

Bollaert contends the evidence is insufficient to support his convictions under section 530.5 under any of the prosecution's theories. He continues to maintain that his Web site is an interactive computer service or access software provider subject to immunity under the CDA and section 530.5, subdivision (f), and that the People presented no evidence he possessed any personal information with the intent to defraud. He further argues that he cannot be an information content provider under the CDA (§ 230, subd. (f)

) because in operating the Web site, he “took no action that amounted to developing or creating the content,” similar to the defendants who were held immune from tort liability in Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d 327 (Zeran ), Carafano v. Metrosplash.com

,

Inc. (9th Cir.2003) 339 F.3d 1119 (Carafano ), and Jones v. Dirty World Entertainment Recordings LLC (6th Cir.2014) 755 F.3d 398 (Jones ). He additionally argues that with regard to actions not protected by the CDA, there is no evidence he willfully obtained someone else's personal identifying information without that person's consent and used it for an unlawful purpose.

A. Standard of Review

The principles governing sufficiency of the evidence claims are “clear and well settled.” (People v. Abilez (2007) 41 Cal.4th 472, 504, 61 Cal.Rptr.3d 526, 161 P.3d 58

.) “ ‘The proper test ... is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Perez (2010) 50 Cal.4th 222, 229, 112 Cal.Rptr.3d 310, 234 P.3d 557 ; People v. Rangel (2016) 62 Cal.4th 1192,...