TDCAA Community
Online Impersonation

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http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/5947049016

July 19, 2013, 08:08
ravella
Online Impersonation
Trying to get an opinion on online impersonation. I have a female victim who has been contacted by numerous males using blocked telephone numbers soliciting her for escort services. One of the males told her that he got her name and telephone number from Backpage.com, and stated that photographs were posted. My officer told her that it did not meet the elements of Harassment, so she left. I'm trying to determine if online impersonation would fit, due to the fact that someone had posted (if the add is found with her info) onto the website using her persona. Any thoughts?
July 19, 2013, 08:21
LAH
How would you prove intent to harm/defraud?


L.
July 19, 2013, 09:38
ravella
If I could find the person who posted her info, then I should be able to determine any intent. At the present time, the thinking is that the person who posted is the victim's exhusband's new wife. If intent is shown, would the charge fit?
July 22, 2013, 04:59
Molly
Online Impersonation is just that: Impersonating someone.

Just posting someone's information online is not a crime. Lots of "people finder" websites post personal information (address, emails, cell #s, etc) (see, e.g. PeopleFinder.com, WhitePages.com, Spokeo, Intelius, or YahooSearch). You do not need a person's consent to post their personal information on the internet. Using a person's name is not the same as pretending to be the person.

If I make a page on Backpage, Craigslist or whatever and say "Hi, my name is Ravella. For a good time call me at 867-5309" that would be illegal because I am pretending to be you.

BUT, if I post your name and number on the wall and say "for a good time call Ravella at 867-5309" that is not illegal because I am not pretending that I am you(i.e. impersonating).

The problem with the Texas Online Impersonation statute is that it is, in my opinion, an unconstitutional restriction on Free Speech. I find it more than ridiculous that it has been made a 3rd degree felony, as well. The only reason why the statute hasn't been struck down by the courts is because, so far, the only people getting arrested for this are basically high school kids or other young people who are in no position to mount an aggressive challenge to the law. These kids are being given felony records on account of Facebook pages. (Yes, we can all point to extreme cases in which someone has really been physically harmed (A Colorado case comes to mind). But you wouldn't need this specific law to get at them. They broke conspiracy laws and murder solicitation laws.) But the vast majority of arrests in Texas have been young people.

First, let me start off by asking how many of you politicians found out that someone was running a fake website, fake Facebook, or Twitter account in your name this past primary and election? Show of hands, please. If you answered, "NO", you obviously weren't looking hard enough. See http://www.texastribune.org/te...bsites-shake-primar/

The posting of otherwise lawful speech or images - even if offensive or emotionally distressing - is constitutionally protected. The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal. The provisions of this statute do not meet that standard. (See e.g., United States v. Cassidy, (D.Md.2011) 814 F. Supp. 2d 574), wherein the state sought to prosecute a defendant who had tweeted, impersonated, and blogged offensively about a religious figure in Maryland because the defendant intended to harass and cause substantial emotional distress and, in fact, succeeded in causing such distress. The court held that such conduct could not present a crime.

This statute criminalizes a form of expression, which is included within the definition of speech. (Texas v. Johnson (1989) 491 U.S. 397.) "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (Id, at p. 414.) Unless a particularly narrow exception applies, protection of expression under the First Amendment is not limited to certain subjects or ideas. A restriction on the "content" of expression, as distinguished from the time, place and manner of expressions is presumptively invalid. A content-based restriction on expressive conduct is subject to "strict scrutiny" and must promote a "compelling state interest" by the "least restrictive means" to achieve the compelling interest. Sable Communications v. FCC (1989) 492 U.S. 115, 126.)

In Texas' impersonation law (Tex Penal Code 33.07), while one could understand what it means to "defraud" or "threaten" someone by reference to other laws, neither of these two texts limit the broad term "harm," or define exactly what "intimidating" a person means.

In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the United States Supreme Court stated: "[T]he growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

A content-based restriction on expression will be struck down as invalid on its face if it prohibits clearly protected speech, in addition to conduct that may validly be prohibited. Such a law is said to be unconstitutionally "overbroad." (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of "depictions of animal cruelty," in order to prohibit fetishistic "crush videos" of the killing of animals for sexual gratification. Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting,arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id, at pp. 1588-1592.)

There are all kinds of reasons why I might want to impersonate you online. Satire and parody easily come to mind. The same with political dirty tricks. But even wanting to cause you "substantial emotional distress" (as in Cassidy, above) is not enough to survive a Constitutional challenge.

I am from Arizona had have spent the past several months working as a research intern for the Arizona Leg and one of the Bills we worked on was an online impersonation law IDENTICAL to the Texas law. Same language, punishments, same everything. After months of research and analysis, the proposed Bill was dropped as unworkable and unconstitutional.
July 22, 2013, 10:01
Brent Robbins
While teaching Leg Update (in 2009 and 2011), this statute was debated at length.

Everyone needs to take a deep breath, and re-read PC 33.07. While the statute was far from perfect when first enacted, and not impoved a whole lot in 2011, the example given by "ravella" is exactly the type of thing this law was designed for.

Molly - Not really sure how you can equate "posting someone's personal information online" to someone posting photos of a female, with comments indicating she is a prostitute, then adding her phone number; causing her to receive countless calls for services she does not provide. I'll let someone else tackle your 1st Ammendment argument...

Also check the definition of "harm" and what it "includes" (not exclusively). One could easily argue that the victim in these types of cases was "harmed".
July 22, 2013, 14:23
Molly
quote:
the example given by "ravella" is exactly the type of thing this law was designed for


So where is the impersonation here, then? So what if the female has her picture posted with comments indicating she is a prostitute and her phone number. That is NOT impersonation!!

You don't get to chose your own personal definition of what is or is not impersonation. Under the rules of statutory construction, the plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute, unless a statute explicitly defines some of its terms otherwise. The term "impersonate" is defined as "To assume the character or appearance of", such as: impersonating a police officer, impersonating a doctor, or impersonating an airline pilot. All of those things involve me PRETENDING to be someone whom I am not and making others think that I am those pretend individuals. See, e.g., TX Penal Code § 37.11. IMPERSONATING PUBLIC SERVANT.

If I write your name and number on the bathroom wall (which Backpage, et al, basically are) and say "for a good time call Brent", where is the impersonation? Where is the "me" pretending to be "you"?? Where have I assumed your persona or identity?

And even if I have impersonated you, so what? If all I have caused you is emotional distress, or even severe emotional distress, under the Federal court's holding in Cassidy, it's not enough. Remember, because this statute involves matters of content-based restriction speech, it MUST survive strict scrutiny review. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)(citing Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989))

Brent, in admitting that the statute is "far from perfect" and "not improved a whole lot in 2011" [said "improvement" being that it is now a FELONY instead of the previous misdemeanor], how can you say that this will survive strict scrutiny? This seems especially true when you seem to want to apply this law in situations where there is no actual impersonation of a person and where the only harm is emotional harm.

Again, recall that I mentioned that Arizona had proposed an identical law with identical language as this Texas law just months ago, and the whole thing was dropped as being unworkable and unconstitutional. You think there aren't jerks in Arizona doing this kind of nonsense, too?

What say you, sir?
July 22, 2013, 14:50
Brent Robbins
After reviewing the tone/attitude of your previous posts, I say: I must "impersonate" Thumper. As I have nothing nice to say, I shall say nothing at all.
July 23, 2013, 12:01
Jim Tirey
Are you seriously suggesting that the First Amendment protects me in saying "Molly is a prostitute" (assuming that is not a true statement, or you are not a public figure and I am speaking metaphorically) or writing "For a good time call so-and-so"? I hardly think the Founding Fathers had those acts in mind when they crafted the Bill of Rights.

As to whether specific conduct falls under the proscriptions of the online impersonation statute, that is a different question, and one that shouldn't be confused with an overly-broad constitutional reading.
July 23, 2013, 16:16
MDK27
Under 33.07(a), the statute says ".....with the intent to harm, defraud, intimidate, or threaten any person...." uses the name or personna of another to create a website or to post onto said site.

Under 33.07 (b) the offense is the posting, email, text, etc. belonging to another person without that person's consent, with the intent to cause the recipient to reasonably believe that it was an authorized communication, and with the intent to harm OR defraud. Specifically covered by 33.07(b) is any identifying information belonging to any person.

The statute is poorly worded, but a plain reading makes clear, to this grizzled mind, that someone's image and phone number are identifying information.

So - leave the harm out of the equation. If I post an ad saying "Suzie Q- for a good time call", or place the ad in a specific section of a social networking site which clearly implies that the person pictured is seeking whatever activity the section covers (like "fun with furries" or the like), then it is going to at least defraud potential responders to the post.

Or am I just too simple?

Not all speech is protected by the First Amendment - never has been and never will be. There are still libel statutes on the books. Some are civil, some are criminal. You can't yell "fire" in a theater. You can't call in bomb hoaxes, you can't peddle smut (although I will be the first to admit that societal standards are making obscenity cases impossible to prove in this day and age). This statute says you can't be pretending to be other people with the intent to defraud or harm. It may be entitled "Online Impersonation", but the language of the statute makes it clear that you don't have to pretend that you are the person - just that you didn't have the identified person's permission to use the identifying information.

I don't believe this statute is unconstitutional as being overly broad, nor do I think it impinges on protected speech. So what if Arizona couldn't figure it out?

Under some theories espoused here, you can say or do what you want - damn all consequences. So, if you post a fellow student's likeness on Gaydar, and give a number for others to call - that's fine? A kid just has to live with it? So, he gets bullied at school and cruised by god knows who, who call all hours of the day and night, but it's no big deal?

Let's face it - kids are "emotionally distressed" enough to the point of suicide. If that's not inflicting enough "harm" for some pundits - well..............

Not all "pranks" will be punished under this law. Hopefully, prudent prosecutors will sift through the harmless pranks and decline prosecution, or juries will be able to use the common sense we sometimes lose, and let people go. In the meantime, it can and should be used as a tool for calling people to task for egregious conduct which has no protection under the First Amendment.
July 26, 2013, 22:39
Molly
Part of having Free Speech is hearing stuff you do not like or that maybe emotionally upsetting. And it is not against the law to defame somebody.

The problem with laws like this is the potential that they could be used to go after parody or social commentary activities.

When somebody posts my picture on the internet and says "Molly is a whore" (to use Jim's example), are they doing it for purposes of social commentary?

Y'all here admit that this is a poorly worded statute. But since when do poorly worded statutes survive Strict Scrutiny? And is it fair to be arresting folks for a 3rd degree felony (and face up to 10 yrs in prison - MORE if they have any priors and can, thus, be enhanced) when the statute is poorly worded???

(And as an aside, aren't 'poorly worded statutes' ripe for challenges of being vague and ambiguous??)

If I can write you name and number on the bathroom wall, or buy a bill board along IH-35, then why can't I also do it on the internet? Everyone here will agree that I can buy the biggest billboard on IH-35 and IH-10 and post your photo on it and your phone number and say that you are a prostitute and tell people to call you for a good time.

If you can legally do something in the 'real' world, then you should also be able to do the exact same thing in cyberspace.

This message has been edited. Last edited by: Molly,
July 26, 2013, 23:14
Molly
quote:
Originally posted by MDK27:
Hopefully, prudent prosecutors will sift through the harmless pranks and decline prosecution, or juries will be able to use the common sense we sometimes lose, and let people go.


In the history of this country, is it really wise to rely upon "prudent prosecutors" to protect our freedoms and not abuse the law? Have we already forgotten about the likes of a certain former DA from a place north of Austin?

The problem with laws like these is that not only can you use it to go after disgruntled ex-'s, but corporations and their political cronies could use this law to attack activists who are truly exercising free speech.

The Yes Men frequently set up spoof websites, distribute fake newspapers and impersonate business people to spread their political views. Since corporations are counted as legal persons in Texas, it is reasonable to assume that this law could be used against their kind of activism. http://www.theyesmen.org/

The same is true for "Leroy Stick," the guy behind the BPGlobalPR Twitter account, which sprang up in response to the Gulf oil spill disaster. http://www.huffingtonpost.com/...twitte_b_599283.html


Remember also the fake Shell PR campaign for arctic drilling that was actually organized by Greenpeace? http://arcticready.com/

This would also be true with regards to all the people behind the rash of fake Facebook & Twitter accounts during the last election cycle. http://www.texastribune.org/te...bsites-shake-primar/

Under this law, ALL of these people have committed felonies that could lock them up for TEN YEARS in prison.

When the U.S. Supreme Court let the Nazis march straight through downtown Skokie (a predominately Jewish community where one in six residents was a Holocaust survivor) a HUGE amount of people suffered a great deal of severe emotional distress. My grandmother was a Camp survivor and lived in Skokie in 1977-78. She and my mother were nearly forced to watch a band of Nazis in full uniform and with flags walk just yards from their home. At the very last minute the Nazis decided to match in Chicago instead. But it was a very close thing and you can imagine the mental anguish the residents suffered for months while the matter went through court and they had to worry about seeing Nazis in front of their homes yet again.

So when we balance the rights of the kid having his likeness being posted on Gaydar and being trolled versus the rights of The Yes Men and Leroy Stick, et al, to impersonate people online in order to spread their message of political activism and social commentary, I gotta go with the Nazis every time.

This message has been edited. Last edited by: Molly,
July 27, 2013, 08:13
Brody V. Burks
Now that this thread has been (inevitably) Godwined, can it be locked?
July 27, 2013, 20:37
Jimbeaux
Oh, please, for the love of God, don't lock it. I wanna hear Molly's First Amendment arguments justifying solicitation of murder. I mean, it is speech, right?
July 27, 2013, 21:11
Molly
OMG Brody - u are so right! hahaha Absolutely no intent to Godwin the discussion was intended.

But seriously, I'm just trying to say that it is very easy for a law like this to be abused. Everyone seems to agree that it is poorly written.

So far as I can find, I have not found ANY appellate court decisions on this law in either Texas, California, or New York (states that have the same law) (Washington state has an online impersonation law, but it only deals with the creation of a civil cause of action against those that impersonate you). In CA & NY its just a misdemeanor, so there is not much incentive to mount an expensive court challenge or appeal.
July 28, 2013, 09:00
SAProsecutor
quote:
Originally posted by Molly:

In the history of this country, is it really wise to rely upon "prudent prosecutors" to protect our freedoms and not abuse the law?


Uh...YES. Prosecutors use their discretion everyday to dismiss cases, reduce charges, etc. I find it quite disturbing that someone in law school thinks they understand THE LAW when they haven't spent one day in a prosecutor's shoes.
July 28, 2013, 13:33
Molly
So do you think that this is a good law or not?

July 29, 2013, 11:09
Shannon Edmonds
quote:
Originally posted by Molly:
But seriously, I'm just trying to say that it is very easy for a law like this to be abused. Everyone seems to agree that it is poorly written.


You sure posted a lot of falderal if that was all you were trying to say.
July 29, 2013, 11:39
Brody V. Burks
falderal [ˈfældɪˌræl], falderol [ˈfældɪˌrɒl], folderol [ˈfɒldɪˌrɒl]
n
1. a showy but worthless trifle
2. foolish nonsense


Well, I HAVE learned something from this thread!
July 29, 2013, 11:44
A.P. Merillat
quote:
Originally posted by Molly:
But seriously, I'm just trying to say that it is very easy for a law like this to be abused. Everyone seems to agree that it is poorly written.


Actually, it's easy for anylaw to be abused, no matter how it's written. That's why we trust in the integrity and decency of honorable people to protect us. When those failing the trust are found out, then proper measures must and rightfully should be taken. Sometimes the discovery of abuse and its resultant consequences take years, sometimes it's quicker.
July 30, 2013, 12:53
SAProsecutor
quote:
Originally posted by Molly:
So do you think that this is a good law or not?
  • Have you had any cases involving it?

  • How have you handled them?
  • What has been your experience when someone takes it to trial?
  • And what have been the reaction to the appellate courts when confronted with these issues?


Seriously?