2016.007: Why Online Impersonation Matters

 Posted on February 26, 2016 in Uncategorized

This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:

Sec. 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.

At the moment the judge was signing the order (PDF-read it; p2-1 is #Texas), I was arguing the unconstitutionality of Section 33.07 before the Fourteenth Court of Appeals in Houston. In that case, too, the trial court had held the statute unconstitutional, so the state was appealing and I represented the appellee.

"Why," you might ask, "should I care whether it's a felony to use someone's name without his consent online to harm him?"

Excellent question.

The State's argument is that the statute forbids impersonation. But "using the name" of another is not impersonating him. When I speak or write your name, I use your name. And "harm" is unlimited in scope-any disadvantage. So if I write your name online without your consent with the intent of harming you by embarrassing you, or offending you, or hurting your feelings, or depriving you of votes in the next election, I have committed a felony.

Blog post questioning Katheryn Harris's journalistic ethics? Felony.

Campaign website criticizing an opponent? Felony.

Newspaper article revealing a public figure's dishonesty? Felony.

Virtually everything on the internet is covered by

(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.

Virtually all critical speech is "with the intent to harm."

So Section 33.07 forbids virtually all online criticism. Texas claims venue and jurisdiction over people all over the world. And that is why you should care.