Posted on June 20, 2011 by the Madd Profit
In this week’s series of posts about pranksterism, we have an example of a recently amended law that, even if unintentional, raises the legal risks of engaging in pranksterism in which you might impersonate someone else.
The Texas legislature has expanded the scope of their state law against online harassment (also renaming it to “online impersonation”). The law was originally passed amongst the uproar over cyber-bullying and included a section that made it a crime to create a website or a profile on a social networking site, in which you use the name or persona of another person. There are a lot of problems with the way this law is written. For example, it isn’t clear whether using the persona of a non-existent person is covered, as was the case in the famous MySpace Mom Suicide case. If it does cover a non-existent persona, then is every online alias a potential violation?
Despite these problems, Gov. Rick Perry, on Friday signed an amendment to the law that expands the scope of the law to include any website, not just social networking sites. The change was in reaction to several cases in which an ex-husband or boyfriend have posted pictures of an ex-wife or girlfriend on Craigslist offering or soliciting sexual services, as though she was the one posting the advertisement. Undoubtedly a cleaver but sleazy way to get back at someone. Under the current law, prosecutors were unable to charge the ex-husbands or boyfriends because Craigslist is not a “social networking site.”
Although I wouldn’t mind seeing these men charged, I think the flaws with this law are being made worse by expanding its scope and I do not see how the changes to the law will not easily be circumvented by the targeted individuals. For example, if one of the ex-husbands above used an alias rather the his ex-wife’s real name the embarrassment and possible for his ex-wife would still be present, yet he would not have used her “name or persona” and, therefore, still not be charged under the law. The only option left, at that point, would be to interpret the law to apply equally to a non-existent persona. As a result, everyone that uses an alias and engages in activity that could be seen as harassment would be breaking the law. This is the epitome of a bad law (i.e., not very useful against those it was intended to be used against and unnecessarily to a large unintended group of people).
Other states have enacted similar laws and many will undoubtedly have a chilling effect on satire, parody, and pranksterism generally.
Here is the law:
Texas Penal Code Section 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:
(1) create a web page on a commercial social networking site or other Internet website; or
(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
(1) without obtaining the other person's consent;
(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
(3) with the intent to harm or defraud any person.
(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor's conduct consisted solely of action taken as an employee of any of the following entities:
(1) a commercial social networking site;
(2) an Internet service provider;
(3) an interactive computer service, as defined by 47 U.S.C. Section 230;
(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or
(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.
(f) In this section:
(1) "Commercial social networking site" means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.
(2) "Identifying information" has the meaning assigned by Section 32.51.
Added by Acts 2009, 81st Leg., R.S., Ch. 911, Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 282, Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 282, Sec. 2, eff. September 1, 2011.