Digital Deception and the Law

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.

What’s Next?

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.”

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26 Responses to Digital Deception and the Law

  1. Jacqueline DuJour says:

    The benefits of technology supersedes the cons, however it’s pretty disturbing to witness the behaviors of those who tend to be preoccupied by the latter.

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  2. These laws certainly seem tricky to work in the real world. It is only recently that the law in the U.S. and here in Britain have finally caught up with the post-internet social world and data protection, but the worrying thing is not just the lack of suitable interpretation and possible clash with other laws and rights i.e. freedom of expression, but also that these new cyberbullying regulations will be left stuck in the statute books as technology rapidly evolves and new problems develop. However personally I do think that the fact that legislators are enacting these laws at all and paying attention to the world around them is a step in the right direction.

    Thanks for sharing this, Ken.

    Vijay

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  3. patweber says:

    What on earth is going on with people? Have we gotten so far away from what is RIGHT because we have some grudge, some revenge factor? This update makes me wonder if this will be another situation like the War on Drugs to the degree, it will be a never ending fight?

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  4. Those examples all make my skin crawl! There are some very strange people out there!

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  5. jacquiegum says:

    These examples are positively skin-crawling. And you didn’t even touch on the fake dating profiles where women have been defrauded, or worse…raped. I don’t know that uber-regulation ever solves anything…they can’t seem to ever get it right.So often these regulations are passed but have no enforcement power. Sometimes even if they do, law enforcement can’t devote the man hours to the situation. I would think the creators of these sites would/should be more concerned over what’s happening to real world people under their watch. Truly, this has become a conundrum.

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  6. lenie5860 says:

    I think that legislators often make things more difficult than need be. There should be a simple law “if what you post on the Internet, hurts someone, then you’re guilty of a crime”. This could be bullying, harassment or whatever. The Internet is a wonderful thing but not if it’s misused.

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  7. William Rusho says:

    This is the nature of the beast. The internet has been a method for people to spew out anything they want without any retaliation, that now they make up a fake persona to do it.
    Before the internet, there was a movie called “Paper Man” (A tv movie broadcasted in 1971) where a group of students create a fictitious person in order to get credit cards.

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  8. Beth Niebuhr says:

    I continue to be horrified by the things that angry and vengeful people do to others. We have too much luxury, too much spare time that we can use in nasty, bullying, or worse actions. Most of us don’t do that, of course. However, the few that do create a great deal of harm directed at their victims. I wish there were a solution but I doubt it.

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  9. maryjom says:

    It is sad how some people can be. Especially behind the walls of the internet. Bullying has got to be one of the worse crimes online. Great points provided in your post.

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  10. Donna Janke says:

    It continues to amaze me how cruel people can be to other people. And the lengths people will go to! You raise a good point about the responsibilities accountability of social media sites with regard to fake profiles. The name sockpuppet to describe those creating false identities online in order to deceive seems too “kind” a term. I understand the reference to the manipulation of a puppet, but the real sockpuppets are kind of cute and friendly looking.

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  11. To deceive or engage in criminal activity online is almost safe. To prevent it a global law that applies to perpetrators in all countries would be necessary. That’s very unlikely to happen so the internet will continue to be the Wild West.

    Linkedin actually gets rid of fake profiles swiftly when someone reports them. On Facebook however, it’s almost impossible to make them do anything about a fake profile.

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  12. Arleen says:

    With the use of the internet, people are able to hide behind the screen. The laws are not universal and I do not think they ever will be so we are at the mercy of the honesty or dishonesty of people. Yes there maybe regulations, but enforcing them is gong to be task that will never be successful. The internet is too powerful a tool.

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  13. Pat Amsden says:

    Writers have traditionally used pen names and many now use more than one name using g them as a way to brand their different work. I find it more than enough to publize myself, let alone several alter egos!

    So, in a way, you could say that other people are doing that when they create false personas to interact with others in cyberspace. But when it’s done with malice as in the Lori Drew case or some pedophil cases it quickly becomes a dark and scary place.

    Laws would help that but just as gun laws don’t stop people killing, cyberspace laws won’t stop criminals from abusing them.

    Like

  14. andleeb says:

    I wonder why we always find a way to miss use a thing that can benefit in many ways. I never heard about cyberbullying bill. It is good to have such steps and by the advancement in technology the challenges are increasing for all institutions. It is good to have strict regulations and monitor the activities of people and save many.
    I hope that we will learn to be honest. I feel sad about the girl who commit suicide.

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  15. Life before the pervasiveness of the internet seemed more innocent, didn’t it? Reading about all of these crazies, one has to wonder what kind of upbringing they had and what in the world would possess a person to do this awful things. Passing laws is good, but it’s a full-time job because, as others mentioned in their comments, technology changes so rapidly. My prayers go out to all the victims.

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  16. The internet can be a scary place, especially for kids who are not equipped to handle high social pressures. They don’t seem to realize the seriousness of their actions. Those underdeveloped frontal lobes. Parents need to teach kids the joys and dangers of technology.

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  17. Tim says:

    There are some nut jobs out there and there are some stupid people out there also. The mix of the two on the internet can be cause for great alarm. I have no answer but it would seem to me that complete freedom only works when everyone plays along.

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  18. Ken you would think that in 2014 there would be come clear laws pertaining to the internet. There are very disturbed people in the world and now they can act out online with what seems like no consequences.

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  19. Welli says:

    This is very interesting and I liked the first statement you made there which is so true for many legal aspects of life. People have just become so unpredictable and social media has created a whole new world to legislate, albeit not so easy.

    Like

  20. Meredith says:

    Wow, those case studies are pretty disturbing. Another reason to keep your eye on what your kids are doing on the computer. I’d never heard the term “sockpuppetry” before. Is that a new thing, like catfishing?

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  21. WOW, it just goes to show you how powerful a tool the internet is. It never hurts to be reminded that the online laws are NOT all universal. There are regulations, but enforcing them is a task that simply may not be doable… sigh! Sadly we are all at the mercy of all who visit and can only hope that they are honest and have integrity.

    Like

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