From a legal perspective, sockpuppets are like guns. They aren’t illegal but many of the ways people use them are.
As the number of unethical, fraudulent and criminal acts perpetuated by online imposters grows, state legislatures in the U.S. have begun to enact laws to cover crimes that may not be clearly outlined in the lawbooks of the analog past.
Several states have enacted online impersonation laws. One of the first was in California (2011). It is fairly representative of the statutes created in many states. California SB1411 states: ‘Any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for the purposes of harming, intimidating, threatening or defrauding another person is guilty of a public offense.”
There are two issues with the California law, and the substantially similar ones that were enacted in Texas (2009), Louisiana (2012), Washington (2012), South Carolina (2013) and several other states. One is the definition of what constitutes harm. The other is whether these laws also apply to the creation of completely fictitious personas, as opposed to the simple adoption of someone else’s identity. The answers to these questions, which will determine the breadth of these statutes, are only likely to come over a period of time as more cases of this nature come before the courts.
The Case of Lori Drew
Perhaps the most widely followed case of sockpuppetry is that of Lori Drew. In 2006 a 13-year-old Missouri girl committed suicide after a 16-year-old boy she had befriended on My Space sent her a message about how “the world would be a better place without her.” The author of that message wasn’t really a 16-year-old boy named Josh Evans, but rather a 40-something Missouri woman named Lori Drew who was a neighbor of the victim and the mother of another 13-year-old who was at one time the victim’s friend.
While local authorities in St. Charles County, Missouri, did not press charges against Drew, citing lack of evidence, federal charges were brought citing violations of the Computer Fraud and Abuse Act (CFAA). A jury found Drew guilty of misdemeanor violations of the CFAA but the verdict was later overturned by a District Court judge who reasoned that while Drew violated the terms of service of My Space, it would be a overbroad interpretation to consider that a violation of CFAA. The ruling was generally recognized by the legal community as establishing that violating the rules of a social network does not it itself constitute a violation of law.
Partly in response to this case the Missouri legislature in 2008 passed what was known as the cyberbullying bill. This was essentially an update of existing statutes about bullying that had specified that the communication would be via telephone or in writing.
Violators of Online Impersonation Laws
The arrests and convictions made under these new online impersonation laws give some indication as to how police, prosecutors and judges are interpreting what constitutes harm.
A 22-year-old Los Angeles man was believed to be the first person convicted under California’s online impersonation law. Jesus Frank created 130 Facebook accounts which he used to harass a 16-year-old former girlfriend. He created online profiles that included sexually explicit photos and the girl’s contact details. Frank got five years probation, a one-year suspended sentence, 30 days on a road crew and counseling.
In Denton, Texas, a 32-year-old woman went to work on her husband’s ex. She hacked into the woman’s Goodreads account and created a fictitious Facebook page in her name. She posted items about the woman on a gossip site, theDirty.com, and emailed her employer entreating him to fire the victim. She was arrested and charged under the Texas online impersonation law, although I was unable to find the outcome of those charges.
Another case in Texas involved two juvenile girls in Hood County. They created a Facebook page in the name of one of their classmates who didn’t have one. They headed the page with a crass nickname for the girl and used the page to threaten other students. Despite being juveniles they were charged with two felony counts of online impersonation and sent to a juvenile detention center.
Online Impersonation Laws vs. The First Amendment
Not everyone is ready to jump on the online impersonation laws bandwagon. In fact there are some who see these laws as a threat to First Amendment rights. They cite the possibility that these laws could be used to go after parody accounts on Twitter or Facebook that are used for social commentary or satire.
There was a interesting case in Louisiana that addressed that point. A woman in Priarieville, La., who had previously been the parish president’s chief executive assistant, created a Facebook page in the name of “Kimmie Broad.” Kim Broad was the parish president’s top deputy. She filled the page with what appeared to be self-derogatory comments about such things as being unqualified to hold her post and preferring to be scantily clad at work.
The woman was charged with online impersonation under the 2012 Louisiana law. Her defense attorney argued that the Facebook page was a form of satire and that the online impersonation law was a restraint of free speech when applied to public figures. Charges were dismissed.
So far there has been no federal legislation along the lines of the state laws. Will Congress weigh in on the issue? Or will the state legislatures try to expand or refine the online impersonation laws?
One would suspect that these new laws are starting to pop up on the radar of personal injury lawyers. Will we see the creation of cottage industry of cyberspace ambulance chasers?
And what about the online social networks? If they have rules about fake online profiles but fail to identify and delete such profiles, are they accountable?
We are still a long way from finding an answer to some of these questions. But the best summary I found on the state of digital deception and the law was on an Australian Web site called Lawstuff Australia. It is a site of the Australian National Children’s and Youth Law Center and offers legal tips for teens and young adults. Their advice: “Creating a fake account, profile or ad about someone else might seem like a bit of fun. But using someone’s personal information to create a fake account that threatens, intimidates, harasses or offends them can be a crime.”