Explained: The Arizona Data Breach Notification Law

Arizona data breach notification law
Make sure you’re in compliance with the Arizona data breach notification law.

By the end of this post, you’ll understand Arizona’s “data breach notification law” and what you’re legally required to do in the wake of a hack, leak or manual data breach. Ready to speak to a lawyer about your situation? Get in touch.

Arizona businesses – and websites accessible to Arizonians – are legally required to inform users and customers of data breaches. In this blog post, we’ll review § 44-7501 of the Arizona Revised Statutes – a.k.a., the Notification of breach of security system; enforcement; civil penalty; preemption; exceptions; definitions law. For brevity’s sake, we’ll call the regulation 44-7501.

What is “personal information” under the Arizona data breach notification law?

Arizona’s data security law only applies when personal information is compromised, which raises the fundamental question: What constitutes “personal information” under Arizona State law?

Answer: Any person’s first name or first initial and last name, coupled with:

a) A social security number,
b) Driver’s license or official ID information, or
c) Credit or debit card numbers, with password or security code data that could grant access to accounts.

Who has to follow Arizona’s Data Breach Law?

Any person, group or business, operating within the State of Arizona, that owns, maintains or licenses unencrypted user data, must follow 44-7501. Examples include (but are not limited to):

  • Companies headquartered in Arizona;
  • Commercial websites that permit Arizona residents to access or interact with their sites; and
  • Large companies with offices or customers in Arizona.

Uncertain if Arizona’s data breach law applies to you? Consult with an Internet law attorney to find out.

What constitutes a “breach” under Arizona’s ?

Not all leaked or stolen information is a notification-triggering breach. For a data security incident to qualify, personal data (described above) must have been compromised – or fell into unauthorized hands – and the potential exists for user / consumer economic loss. Examples of possible breaches:

  • Hacking incident;
  • Loss of laptop, memory stick, computer or hard drive;
  • Employment misconduct with digital records and accidental emails;

The above examples aren’t the only models of data breaches that require notification, they’re simply an overview of things that have previously been deemed breaches under Arizona law.

What is the general purpose of 44-7501 – Arizona’s Data Breach Notification Law?

Passed in 2006, 44-7501 outlines the required notification process in the event of an unauthorized data breach.

When are you required to launch a data security breach investigation?

Under Arizona’s data breach law, the moment business operators become aware of a potential security issue, they are obligated to launch a “prompt investigation.” If it’s discovered that you looked afoul when the signs pointed to a potential breach, you’ll be fined – heavily.

How long do companies have to notify the affected users / people?

If your investigation concludes that a third party could have gained access to records, you’re required, by law, to alert the affected parties:

“…in the most expedient manner possible and without unreasonable delay.”

What are allowable notification methods according to Arizona’s data breach notification rules?

If you’re responsible for alerting affected consumers about an Arizona data breach, acceptable contact methods include:

  • Phone;
  • Regular Mail;
  • Email, only if the person has indicated email as their preferred contact medium.

If more than 100,000 people are affected by a breach, or if the cost of notification would exceed $50,000, businesses can use so-called “substitute notification methods,” which include:

  1. Email (some restrictions apply; consult with an Internet lawyer about the details of your case.)
  2. Conspicuous notification on company website; or
  3. Notification to major, statewide media outlets.

Law enforcement agencies can delay notification if the incident affects a larger investigation.

What is the penalty for breaking Arizona’s data breach law?

What happens if you don’t comply with Arizona’s data breach law? A huge fine. Violators are responsible for actual damages caused by the ignored breach, plus $10,000 per breach.

Who is allowed to sue for violations of Arizona’s Data Breach Notification Law?

Only the Arizona Attorney General can bring breach notification violation charges against a defendant. Additionally, State law supersedes municipal and county laws addressing the issue. This would not, however, preclude private citizens from bringing causes of action for other claims.

Kelly / Warner is a top-rated legal practice that focuses on Internet law. To learn more about our pioneering firm, head here. To speak with an experienced Internet law attorney, get in touch.


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Internet Law Reminder: Renew Your Safe Harbor Certification

safe harbor certificationIf you operate a website or app that collects personal user information, read on. Not taking the advice within could mean an unwanted visit from the Federal Trade Commission.

What are the International Safe Harbor Provisions and TRUSTe?

International Safe Harbor Certification Program

First things first: what, exactly, is a “Safe Harbor” provision?

In 1995, the European Union (“E.U.”) ratified rules regarding the digital transfer of personal information. In 2006 – in conjunction with the U.S. Department of Commerce – the E.U. created the Safe Harbor Framework, which allows U.S. businesses to demonstrate compliance with European standards.

U.S. and Swiss officials also rolled-out a separate, but near identical, program around the same time.

The Safe Harbor Frameworks are self-certification processes, but participants are required to comply with associated paperwork to maintain official compliance recognition.

TRUSTe Program

True Ultimate Standards Everywhere Inc. (a.k.a., TRUSTe) is a private firm that offers security certifications. Primarily, businesses, who want to demonstrate a commitment to international data laws, use the company’s services. Businesses can apply for universally recognized TRUSTe licenses. Like the Safe Harbor Frameworks, licensees are required to renew every few years.

Two Companies Busted For Not Renewing Safe Harbor and TRUSTe Commitments

TES Franchising LLC (“TES”) and American International Mailing Inc (“AIM”) both self-certified under the U.S.-E.U. and U.S.-Swiss Safe Harbor Frameworks. The former first completed the process in 2011, the latter in 2006. TES also held a TRUSTe license.

Both companies, however, failed to renew the required paperwork – and the FTC found out. As a result, TES and AIM were saddled with 20-years of FTC-sanctioned, time-consuming bookkeeping, the non-completion of which could trigger a huge, legally enforceable fine.

Even If You Don’t Change Your Website or Procedures, Safe Harbor Renewal Is Mandatory

TES and AIM didn’t violate any Safe Harbor certification standards, they simply forgot to renew on-time. So, despite neither company committing a security abuse, not fulfilling the proper paperwork put them on regulators’ radars.

The Takeaway: If you want to keep officials off your back, make sure you’re up-to-date with the latest international, national and regional Internet laws — especially Safe Harbor certification paperwork.

For Maximum Profit, Enlist an Experienced Internet Law Attorney

Kelly / Warner attorneys are masters of Internet law. Pioneers in the field, we’re commonly recognized as one of the country’s leading tech law firms. Kelly / Warner consistently delivers better-than-big-firm results, for a fraction of the price.

Contact Kelly / Warner today to get started on your safe harbor certification or other Internet law issue.



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Arizona Revenge Porn Law “On Ice.” Can You Still Get Pics Removed?

Arizona revenge porn lawyer
Arizona officials have put the state’s revenge porn law on hold. Does that mean revenge porn perpetrators are off the hook?

Last April, the state government passed an Arizona revenge porn law. Controversial from go, free speech advocates abhor the bill’s broad language. In fact, the American Civil Liberties Union has even sued the state for First Amendment violations. As a result, Arizona District Judge Susan Bolton has officially tabled the state’s revenge porn law until further notice.

Does that mean you can’t get sensitive material removed from the Web now? No, it doesn’t. Depending on the circumstances, other options are available. Your best bet? Consult an Internet law attorney with specifics.

Why Are People Upset About Arizona’s Revenge Porn Law?

What’s the fuss about Arizona’s revenge porn law? Censorship concerns.

Argument Against Arizona’s Revenge Porn Law

In the ACLU’s revenge porn lawsuit against Arizona, the civil rights advocates are representing booksellers concerned about the law’s verbiage. They believe the statute could land them in trouble for selling art books – and war books – that contain nude or graphic images.

David Horowitz, executive director of the Media Coalition – a group supporting the ACLU’s revenge porn lawsuit against Arizona State – explained the apprehension thusly:

“The range of material that this law could bring in was hugely over-broad, it went far beyond anything you would think of as sort of malicious invasion of privacy.”

Argument For Arizona’s Revenge Porn Law

State politicians – who unanimously passed the revenge porn bill – seem willing to put the law on ice for the time being. They don’t, however, seem optimistic about satisfying the demands of the American Civil Liberties Union. State Representative J.D. Mesnard remonstrated:

“Given my willingness to [re-examine the language of the Arizona revenge porn law], it made sense to say, well let’s see if we can get an agreement to hold off on the bill for now and make some changes in the next session. We may end up right back where we are now because some of the issues the ACLU brought up, I don’t think they’ll ever be satisfied.”

Speak With An Arizona Revenge Porn Attorney

Authorities won’t rectify the issue of Arizona House Bill 2515 until the House reconvenes, and politicians agree on a compromise — which could take many months.

But there are ways to combat revenge porn now – with or without a specific law.

If you are an Arizona revenge porn victim in search of a solution, get in touch with Kelly / Warner Law today. We’ve successfully helped over 200 people get revenge porn material removed from the Web. Rest assured, ways exist.

Get in touch today, and we’ll start solving your Arizona revenge porn problem.

For a state-by-state rundown of revenge porn laws, click here.

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Flagstaff Defamation Lawsuit Case Study: Developer v. Local Politician?

Arizona defamation law
There’s a defamation standoff down in Flagstaff between a property developer and a local politician.

UPDATE: Looks like the mayor of Flagstaff is getting involved in the Landmark / Evans defamation debacle. The latest? Landmark properties withdrew its zoning request. Also, city officials released a statement saying they would represent Evans in the suit, but the Mayor doesn’t remember authorizing that. So now there’s red-tape to tackle.

*** Original Article ***

A spokesman for a local property developer sued a local Flagstaff politician for defamation. Is the claim valid, or a sly attempt to influence a Council vote?

Flagstaff Defamation Lawsuit Background Info: Property Developer Wants To Build An Apartment Complex, But Local Residents Aren’t Thrilled

The Standard is a 650-bedroom student complex that Landmark Properties has been itching to erect in Flagstaff, Arizona. But there’s one major hurdle: the 50 or so families that would be displaced by the building. The affected families have been offered compensation for the considerable inconvenience – but hey, some people don’t want to move.

The Email That Prompted This Flagstaff Defamation Lawsuit

Back when plans for Landmark’s project first went public, a community activist sent a letter to the Arizona Daily Sun about The Standard. Her e-mail included opinions about the Landmark development project, and presumably some information about Joe Villasenor, a Landmark Spokesman.

Several months later, Vice Mayor Coral Evans forwarded that same email to various people in the community.

And now, Villasenor is suing Evans for defamation. He insists it has nothing to do with the pending “Standard” vote, despite the fact that once the lawsuit hit, Landmark formally requested that Evans recuse herself from the Council vote.

Evans insists the lawsuit is 100% politically motivated.

Interestingly, Villasenor did not include the e-mail’s author in the lawsuit, only Evans. His reason? Having an elected official – with political clout – “spread” defamatory information about you is a lot more detrimental than a private citizen doing the same.

Who Will Win This Flagstaff Defamation Lawsuit?

The winner of this Arizona defamation case will depend wholly on the facts of this case, and the evidence each side presents.

Another big issue will be whether or not the statements in question were true or false, because as the old saying goes: It’s not defamation if it is true!

Speak With A Defamation Attorney in Arizona

Defamation is a nuanced area of law. Kelly Warner is a top-rated Arizona law firm that focuses on slander and libel litigation.

What sets us above the rest is that we get things done as quickly – and quietly – as possible, so you can get back to living, without a defamation cloud hanging over your head.

Pick up the phone and call us, today. We know how to win defamation lawsuits in Arizona.

Unfair Competition: What Is It?

unfair competition lawyerWhat is unfair competition? Legally speaking, it’s a set of torts dealing with unacceptable marketing techniques that companies use to gain advantage over competitors.

For example:

  • Purposefully spreading negative gossip about your competitor in order to gain an advantage;
  • Posting fake negative reviews of competitors on Internet review websites;
  • Using a competitor’s logo in some way that tricks the consumer;
  • Stealing unauthorized data from an employer or competitor;
  • Profiting off of another person’s or company’s likeness; or
  • Sending misleading e-mails that negatively and unfairly affect a competitors business.

The list above is only a sampling. Basically, anything that has to do with shady business competition falls under “unfair competition” in the eyes of the courts. Generally, though, monopolistic and anti-trust issues don’t fall under the unfair competition legal umbrella.

What Laws Deal With Unfair Competition?

The following U.S. laws address issues related to unfair competition:

  1. Lanham Act
  2. Federal Trade Commission Act
  3. Various State Laws (Varies Depending On Jurisdiction)

What Civil Torts Are Considered Unfair Competition Torts?

Torts that fall under the unfair competition banner:

  • Trademark and Copyright Infringement
  • Rights of Publicity
  • False Advertising
  • “Bait and Switch” Selling Techniques
  • Unauthorized Product Substitution
  • Misappropriation of Trade Secrets and Client Data
  • Breach of Restricted Covenant
  • Trade Libel
  • False Representation (of Products or Services)
  • Tortious Interference

Contact An Unfair Competition Lawyer Today

Kelly / Warner usually works with companies in the tech and Internet marketplace. We have successfully handled countless unfair competition concerns for clients – many of which we cleared up within a few short weeks. If you’re dealing with an unscrupulous competitor and want to take action, get in touch today. We have the answers and legal know-how you need.

Arizona’s Attorney General Is Suing Citizens: Deserved or Dumb Move?

Arizona Seal
Arizona’s AG is on a defamation warpath.

Arizona Attorney General Tom Horne is crying defamation, y’all. The state’s polarizing legal chief filed an action against the Arizona Public Integrity Alliance (AZPIA) – a citizen watchdog organization – over an advertisement on the group’s Facebook page. In the ad, AZPIA claimed Horne was under investigation by the FBI. It also highlighted Horne’s failure to remunerate a $400,000 fine handed down for inappropriate campaign fundraising.

Horne insists, however, that the group has their facts messed up. The attorney general points out that, technically, he is no longer the subject of an FBI investigation. As a result, he’s suing for defamation.

Questionably, Horne filed as a private citizen despite being a public official. Can he do that? Well, yes, he can do it. But the question is: will it work?

Horne Is An Attorney General; Can He Claim To Be A Private Person For The Purposes of This Defamation Suit?

Under Arizona defamation law, the standard for defamation is different for public and private figures. In short, public figures (celebrities, elected officials, high-ranking government executives) must satisfy the actual malice standard to win a defamation suit – meaning the “famous” plaintiff must prove the defendant knowingly lied or acted with reckless disregard for the truth.

The problem Horne will run into here is that the statements under review are direct criticisms of Horne’s role as attorney general.

In the United States, political heckling is practically a national sport. As such, it’s tough to see how a judge will allow Horne to present his case as a private citizen.

Can Horne Win This Defamation Case?

Now, if a judge doesn’t dismiss the case, does Horne have a shot at winning? It’s iffy. If he can prove material loss that resulted directly from a false statement of fact made in the ad, then sure, he’s got a shot, in theory. That said, the statement under review must be materially false, not just a small error. Also dampening the AG’s chances is the fact that Horne was under FBI investigation at one point. Moreover, AZPIA did make an effort to remove the material in question after Horne had contacted the group and explained the slight error.

But hey, you never know. We’ve not been able to read the actual filing, so it’s impossible to weigh in on the merits of Horne’s case. But judging from available media reports, it looks as if this one will be an uphill battle for Horne.

Arizona Benefit Corporations: A New Business Registration Category

Arizona Benefit Corporation Business Category
Arizona has a new type of business category — benefit corporation.

Is your startup equally interested in do-goodery and money? If yes, consider registering your company in Arizona, because Gov. Jan Brewer just signed Senate Bill 1238 into law. The legislation allows for a new business category in The Grand Canyon State – Benefit Corporations.

Arizona Benefit Corporations: Between Profit Corps. And Non-Profits

Arizona’s new business class is perfect for companies that want to be a positive force in their communities –social or environmental, big or small – while at the same time enjoying a healthy bottom line. In the simplest terms, the Arizona benefit corporation is a hybrid of a regular corporation and a charitable organization.

Tax Benefits Of An Arizona Benefits Corporation

Don’t, however, jump to conclusions and assume using the Arizona benefit corporation classification will save you money in taxes. In fact, on the face it won’t as the category is in the same tax bracket as a traditional corporation. That said, using the classification may put organizations in a favorable position for certain types of grants and endowments. So, what you may not save in taxes, you may gain via funding avenues traditionally slated for non-profits.

Other Characteristics of the Arizona Benefit Corporation

Other features of the Arizona benefit corporation business category:

  1. Companies that choose to register as a benefit corporation in Arizona must include an update on the group’s “public good initiatives” in their annual report.
  2. Arizona benefit corporations must consider how their operations impact the interests of customers, employees, community and investors. (In a traditional corporation, the investors’ interests are the primary concern.)

Arizona Is Pioneer Of This New Business Model

Arizona is one of the first states to adopt the benefit corporation business classification. B Lab, “a non-profit organization dedicated to using the power of business to solve social and environmental problems” is working nationally to promote the benefit corporation agenda. B Lab hopes that marrying the business world the charitable world will produce the greatest amount of good. They also believe the new benefit corporation business registration will help consumers to differentiate between good marketing and genuine good intentions.

Arizona Business Attorney For Startups & Established Businesses

If you want to learn more about the Arizona benefit corporation business registration, contact Kelly Warner Law. We handle business law, compliance, litigation and registration issues for startups and established businesses.

Arizona’s Online Impersonation Law

Arizona SealAre Arizona legislators plotting to steal candies from babies? Candies, in this instance, being parody social media accounts that pump out palliative humor for the people. If state lawmakers wave through House Bill 2004 — a statute that would illegalize impersonating someone on the Internet– the answer to our question could be, “yes.”

Pre-filed in December by state representative Michelle Ugenti, HB 2004 seeks to criminalize the act of creating Facebook, Twitter and [insert your favorite social networking site here] accounts under another’s name. Brass tax: a little online clowning could land you in the clink – as in, meet-your-new-cell-mate-Sam-the-Shiv jail-jail.

Ugenti’s proposal stipulates that a cause of action is dependent on “a bad faith” intent to harm, but First Amendment watchdogs are leery of the bill’s breadth and the chilling effect it could have on free expression. Proponents of the HB 2004, however, contend the bill’s language precludes any possibility of constitutionally questionable lawsuits. Regardless of position, if the online impersonation law passes, it will give defamation and cyberbully victims in Arizona a new litigation option.

The Administrative Basics of Ugenti’s Online Impersonation Bill

Broadly, Ugenti’s bill targets fraudsters, cyberbullies and online defamers; specifically, it would amend Title 13, Chapter 20 of the Arizona Revised Statutes, which addresses criminal fraud and related issues. Proponents of the bill hope that codifying harsh punishments for Internet impersonation will make people think twice about online bullying, harassment and fraud.

In order for a plaintiff to win a case under the proposed law, they must prove that they did not give the defendant permission to disseminate their information or act on their behalf. In addition, claimants must prove that the act of impersonation intentionally caused harm – a stipulation also present in defamation laws. From the draft:

“A person commits online impersonation 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 do either of the following…”

Parameters in the draft bill mirror Sec. 33.07 of the Texas Penal Code. Like the Lone Star State’s online impersonation law, HB 2004 bifurcates between creating a fake account and pretending to be someone else on a forum, message board or blog.

What Is Considered Actionable Under The Bill?

Ugenti’s proposed Internet law establishes two types of offenses. The first is a class 5 felony and the second is a class 1 misdemeanor.

Part A: Creation of an Unauthorized Web Page or Social Media Account

If HB 2004 passes, developing and publishing a social media account or webpage under another person’s name would be illegal in Arizona. Readers should note that the draft says “web page” not “website.” That being the case, a defendant would not be able to claim immunity simply because they don’t own the domain. A single page of online forgery, in a sub-sub folder of your friend’s 0-page-rank website, is still actionable.

In addition to creating malicious, phony social media accounts and web pages, sending a message through a website or social networking platform “other than on or through an electronic mail program or message board,” is also defined as an offense under Part A of HB 2004.

Part B: Unauthorized Messaging

Part A of Ugenti’s online impersonation bill specifically excludes posing as someone else on a message board or email. Part B, however, covers those acts. Subsection B makes it illegal to send an “email, instant message [or] text message that references a name, domain address, phone number or other item of personal identifying information belonging to any person if consent is not granted.” Under this rule, an event is not actionable unless the sender leads the receiver to believe that the “signatured” individual authorized the transfer of information. Again, the intent to harm or defraud must be evident.

What Punishments Are Proposed In AZ’s HR 2004?

Subsections A and B of HB 2004 carry different penalties. As stated previously, offenses under Part A are a class 5 felony and offenses under Part B are class 1 misdemeanors. The maximum prison sentence for a Class 5 felony is 1.5 years and 6 months for a class 1 misdemeanor. Note, however, that individuals without any priors who are convicted under Part B of the bill may not be sentenced to time and instead be required to pay a fine. That said, if the nature of the act in question is egregious — even if the defendant does have a clean record — they still may be given jail time.

An exception exists. If a defendant is convicted under subsection B, and their offense involved emergency personnel, they can be charged with a class 5 felony instead of a class 1 misdemeanor.

Entities Not Bound to Arizona’s Proposed Online Impersonation Law

HB 2004 does include protections for certain types of services providers and employees. The entities below are not beholden to parameters outlined in Ugenti’s online impersonation law.

Commercial Social Networking sites

A commercial social networking site is any platform that allows users to register and interact with other users “through direct or real-time communication.” A blog that allows comments is typically not considered a social networking site under U.S. law, but if each of your users gets a personal blog or profile, on which other users can send messages or leave notes, there’s a strong probability that a judge will deem it a commercial social networking site. However, electronic mail programs and message board programs are not considered social networking platforms.

Internet Service Providers

Legally speaking, an Internet Service Provider (ISP) is “an organization that provides access to the Internet.” There are 3 categories of ISPs: Access ISPs, Transit ISPs and Virtual ISPS (VISPs) – all are granted immunity from prosecution under HB 2004.

Interactive Computer Service

The definition for “interactive computer service” in the Communications Decency Act is used as a working legal description of the category. It reads: “[An interactive computer service is] any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” Services like Facebook are considered both a “commercial social networking site” and “an interactive computer service.”

A Telecommunications Provider

HB 2004 uses the definitions for “telecommunications provider” outlined in the Communications Act of 1934 (47 United States Code section 332(d)) and the Federal Communications Commission rules and the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66). Certified telecommunications utility services, shared tenant services and non-dominant carriers are all exempt from being prosecuted under Arizona’s proposed Internet impersonation statute. Video service provider or cable service provider

Video service providers are organizations that “distribute video programming services through wireline facilities located at least in part in the public right of way without regard to delivery technology.” Cable service providers are the same, except they deal with cable.

Possible Defense Arguments for Rep. Ugenti’s Proposed Online Impersonation Law

Let’s take a look at a few arguments that defendants could use in an HB 2004 lawsuit. Notice that many of the possible arguments are similar to defamation defenses.

It Wasn’t Me

The obvious defense against HB 2004 would be “It wasn’t me!” If a defendant can definitively prove that he or she was not the person who posted the material online, he or she will get off. (Conversely, if the material is posted anonymously, plaintiffs would be able to get a court order demanding that the ISP reveal the name of the account associated with the IP address.)

I Did It as a Part of My Job

Ugenti’s draft specifies that certain classes of people and businesses cannot be prosecuted under HB 2004 (see above). If a defendant falls into one of those categories, there’s a good chance that a judge would toss the claim. That stated, if the action didn’t have to do with work, the defendant would probably not be able to claim immunity.

I Didn’t Mean To Cause Harm

HB 2004 is clear: A “bad faith” intent must be demonstrated in order for an event to be actionable. If a defendant can successfully argue that he or she did not intend to harm, intimidate or defraud, that may be enough to elicit a not guilty verdict.

It was a Matter of Public Concern

If the topic of the material is a matter of public concern, free speech rights kick in, and the defendant may win with a strong First Amendment argument.

It’s Not a Commercial Social Networking Site

The proposed Internet impersonation act clearly stipulates that the material under review must be on a commercial social networking site. As such, in theory, a defendant could argue that the material was on a private networking site. Now, don’t go thinking you can just throw up a registration process on your site and call it “private.” A password protected site will not pass the “non-commercial” test. In fact, if people can find it to sign up for it, it is public – even if they have to pay a membership fee.

I had Permission To Do It

One of the first parameters in HB 2004 is consent. It must be proved that the defendant acted without the plaintiff’s permission. As such, if a defendant can prove that the plaintiff granted permission to publish under their name, said defendant can safely predict an acquittal.

What Do Free Speech Advocates Think Of The Bill? Are Their Fears Justified?

At face value, HB 2004 is a reasonable statute with a noble objective. It doesn’t, however, pass the First Amendment sniff test with flying colors.

To illustrate: what happens when Comic X – the one with overt leanings for Political Part A – creates a parody account intended to send-up Official Y, of Political Party B? Under the proposed law’s current wording Comic A could find themselves in a court room. As Kurt Opsah of the Electronic Frontier Foundation explained to the Arizona Republic, “The problem with this and other online impersonation bills is the potential that they could be used to go after parody or social commentary activities.”

While it is crucial to keep an eye out for laws that threaten free speech rights, it is also beneficial to remember that safeguards do exist to protect individual freedoms. For example, the Supreme Court decision in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) firmly established that public figures cannot be granted damages to compensate for emotional distress. In most jurisdictions, local officials are considered public figures; in some jurisdictions, even government employees fall under the category. More than that, if the subject of the content in question is a matter of public concern, free speech protections apply.

And to belabor a point: harm, intimidation or fraud play a key factor – if you cannot prove it, you must acquit.

Who Is In Favor Of The Online Impersonation Bill & Why?

Ugenti does have substantial support for her online impersonation law proposal. Advocacy groups commend the bill and believe it will help deter would-be defamers and cyberbullies. When asked about detractors by Businessweek, Ugenti stressed HB 2—4’s “high standard” of having to demonstrate intentional harm, fraud or intimidation.
It should be pointed out that the HB 2004 came into existence because of an Ugenti constituent who approached the lawmaker about a fake Facebook profile created under their name – a fake Facebook profile that led to professional harm. That being the case, it is safe to assume that Ugenti was thinking of how malicious online competition affects professionals and businesses when drafting the bill. As such, expect small business associations and corporate advocacy groups to support HB 2004.

Is Arizona’s HR 2004 A New Litigation Avenue For Defamation Plaintiffs?

Last year, teenager Alex Boston filed a defamation lawsuit against several classmates who created a Facebook page made to look like Alex was the author. On it, the cyberbullies posted stuff that many people would find offensive, including racial slurs. (To read more about the case, go here.) The suit made national legal news because it was one of the first cases wherein the plaintiff claimed defamation as a way to combat cyberbullying. If HB 2004 homologates in Arizona, claimants with situations similar to Ms. Boston will have a clear statute to point to instead of trying to bootstrap other laws.

Can We Expect A Nation Online Impersonation Law Anytime Soon?

Arizona is not the first state to consider an online impersonation law. Texas, New York, Hawaii, Louisiana, Mississippi, California and Washington all already have Internet laws of this nature on the books. Since cyberbullying and defamation are on the rise – in a large part thanks to the Internet – expect to see more states following suit.

Are you a reporter who would like to ask some questions about Arizona’s proposed online impersonation bill, HB 2004? Feel free to contact Aaron Kelly here. Aaron is an attorney who specialized in Internet and defamation law.

Full Text Of Arizona Representative Michelle Ugenti’s Proposed Online Impersonation Law – HB 2004Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 13, chapter 20, Arizona Revised Statutes, is amended by adding section 13-2012, to read:


Online impersonation; defenses; classification; definitions

A.  A person commits online impersonation 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 do either of the following:

1.  Create a web page on a commercial social networking site or other Internet website.

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 online impersonation 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 personal identifying information
belonging to any person and all of the following apply:

1.  The person does not obtain the other person’s consent.

2.  The person intends to cause a recipient of the communication to reasonably believe
that the other person authorized or transmitted the communication.

3.  The person intends to harm or defraud any person.

C.  If conduct that constitutes an offense under this section also constitutes an offense
under any other law, the person may be prosecuted under this section, the other
law, or both.

D.  It is a defense to a prosecution under this section that the person is any of the
following entities or that the person’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 in 47 United States Code section 230.

4.  A telecommunications provider.

5.  A video service provider or cable service provider.

E.  Online
impersonation under subsection A of this section is a class 5
felony.  Online impersonation under subsection B of this section is a
class 1 misdemeanor, except that it is a class 5 felony if the person commits
the offense with the intent to solicit a response by emergency personnel.

F.  For the purposes of this section:

1.  ”Cable service provider” means a person who provides cable service.

2.  ”Commercial social networking site” means any business, organization or other similar
entity operating a website that permits persons to become registered users to
establish 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. Commercial social networking site
does not include an electronic mail program or a message board program.

3.  “Telecommunications provider” means: (i) A certificated
telecommunications utility. (ii) () a shared tenant service provider. (iii)  A non-dominant carrier of
telecommunications services. (iv)  A provider of commercial mobile
service as defined in the communications act of 1934 (47 United States Code section 332(d)), Federal Communications Commission rules and the Omnibus Budget Reconciliation Act of
1993 (P.L. 103-66).

()  Does not include:

(i)  A provider of enhanced or information services, or another user of telecommunications services, who does
not also provide telecommunications services.

(ii)  A state agency or state institution of higher education or a service provided by a state agency or
state institution of higher education.

4.  ”Video service provider” means a video programming distributor that distributes video programming services through wireline facilities located  at least in part in the public right of way without regard to delivery technology.  Video service provider does not include a cable service provider.


1) “Arizona bill would outlaw posing as others on Facebook or Twitter.” Firstcoastnews.com. Jan 3, 2013 . January 5, 2013 <http://www.firstcoastnews.com/news/strange/article/290169/82/Ariz-bill-would-outlaw-posing-as-others-online>.

2) Kawa, Lucas. “Internet Parody Is On Its Way To Becoming A Crime: Free Speech Advocate.” Businessinsider.com. January 4, 2013. January 5, 2013 <http://www.businessinsider.com/az-bill-makes-online-impersonation-a-felony-2013-1>.

Facebook Defamation Lawsuit In Arizona: Medical Insurance In The Spotlight

arizona defamation
A Facebook defamation lawsuit is playing out in Arizona.

In Arizona, a Facebook defamation lawsuit is making headlines. Horizon Human Services, a counseling and social services agency based in Payson, is suing a former employee, Gary Austin, for online defamation. The libel claim stems from a posting Austin made on his Facebook wall averring he was let go from his job because of his newborn son’s medical needs.

The Facts Of This Facebook Defamation Lawsuit

Gary Austin, a former employee of Horizon Human Services, was fired three months after his sickly son was born. Convinced his dismissal was a result of his employer not wanting to cover the insurance costs for his son’s condition, Austin posted the following on Facebook:

“The COO of Horizon Human Services, Billie Holliday, was the architect of my termination, and the CEO, Norman Mudd, was the one who executed it. They have fired many sick employees without a thought or care in the world for the horrible position they are placing those people in.”

After Austin went public with his family’s plight, thousands of supporters flocked to their aid, lending both emotional and financial support to Christian, Gary and his wife. To date, the Austin’s have about 10,000 supporters.

Horizon Human Services insists Austin’s firing had nothing to do with his son, but instead was a result of him routinely disregarding company policy. Most recently, they claim, Austin offered to become a foster parent to an out-patient without throwing it up the proper chain of command. As such, Horizon says, he was placed on probation and therefore had his benefits suspended.

The strong claims of insubordination, however, seem to stand in stark contrast to Austin’s two promotions in a 15 month period.

In their Facebook defamation lawsuit filing, Horizon also contends that Austin had a history of “posting libelous and defamatory statements about Horizon on the Facebook page…(and) providing libelous and defamatory statements to reporters for a story appearing in the Payson Roundup newspaper…”

The Family Medical Leave Act Factors In This Facebook Defamation Lawsuit

According to Austin, due to the amount of time necessary to tend to his son, he took advantage of the Family Medical Leave Act (FMLA). Passed in 1993, the FMLA allows employees who have worked for a company of 50 employees or more, for more than 12 months, and have amassed at least 1,250 hours, to take extended time off. The law also allows you to amend your work schedule for up to 26 weeks in a 12-month period, in the event of certain familial medical emergencies.

Horizon said that even though Austin did submit the FLMA documents and modified his work schedule, his probation meant that Austin had “no access to benefits for prior substandard work performance.” Austin, however, disputes this interpretation of the law. Moreover, he insists that he kept up with his caseload during the time in question, and due to FMLA, had the right, according to federal law, to keep the schedule he did.

The Horizon Human Services v. Gary Austin Facebook defamation lawsuit was filed in Gila County Superior Court. The silver lining is that little Christian seems to be pulling through. He made it through the worst, was released from the hospital, and while he still has to undergo considerable therapy, the little fighter is doing better.

The Arizona Technology Council Endorses Candidates and Ballot Measures for the 2012 Election

Disclaimer: This article is not an endorsement of any candidate or ballot measure by Kelly / Warner Law, or any Kelly / Warner Law employees. Kelly / Warner is simply reporting on the endorsements made by the Arizona Technology Council.

Mark November 6th on your calendar. Why? For starters, it’s the day that the political phone calls and incessant ads will end, and perhaps more importantly, it’s also the day that you get to exercise your right to vote, and have a say about the future of your tech or Internet business.

For those interested in voting “Team Tech,” The Arizona Technology Council puts out an annual voter recommendation list of elected-official-hopefuls, which the council feels have demonstrated leadership in bringing about legislation that promotes small-Internet-business growth and growth for tech companies in Arizona.

A bi-partisan list, the Arizona Technology Council is based on the following criteria:

  • ensuring the expansion of investment capital access
  • providing tax incentives for research and development in technology
  • advocating for a strong technology infrastructure
  • promoting economic development of tech companies
  • pushing for tech-based education for students enrolled in K-12 programs and beyond

A list of endorsements made by the Arizona Technology Council is provided below.

In addition, there are two ballot measures the Arizona Technology Council has deemed worthy of support in the interest of making Arizona a top-tier tech development destination.

According to the Arizona Technology Council, Proposition 116 or “The Small Business Job Creation Act” would “allow the state to exempt from taxation the full cash value of the equipment and machinery or personal property used [for business purposes] up to an amount equal to the annual earnings of 50 workers.” A yes vote on this ballot measure, proponents argue, will help small businesses grow — the philosophy being that the less taxes one has to pay, the more one can invest in their business.

Proposition 119, recommended by the Arizona Technology Council, would “allow the exchange of state lands for public lands…when it is in the best interest of the state land trust…” in order to maintain military installations across the state. This measure would help Arizona’s tech-friendly defense and aerospace contractors, which, in theory, could lead to more jobs in the industry. The AZ Technology council argues that if those state lands were auctioned off to the highest bidder, they could be developed in ways that will detract from technology growth in the state (think resorts). As such, the Arizona Technology Council says, “Vote ‘Yes!’” on Proposition 119.

Whether you agree with the Arizona Technology Council or not, it’s still important that you get out there on Election Day to cast your ballot. So do your research, look at both sides, weigh your options and make sure your voice is heard on November 6th.

Candidates endorsed by the Arizona Technology Council:

Arizona State Senate:
District 1: Steve Pierce (R)
District 2: Linda Lopez (D)
District 3: None
District 4: Lynne Pancrazi (D)
District 5: Nancy McLain (R)
District 6: Chester Crandell (R)
District 7: Jack Jackson Jr (D)
District 8: None
District 9: None
District 10: Frank Antenori (R)
District 11: Al Melvin (R)
District 12: None
District 13: Don Shooter (R)
District 14: Gail Griffin (R)
District 15: Nancy Barto (R)
District 16: Rich Crandall (R)
District 17: Steve Yarbrough (R)
District 18: John McComish (R)
District 19: None
District 20: Kimberley Yee (R)
District 21: None
District 22: Judy Burges (R)
District 23: Michele Reagan (R)
District 24: Katie Hobbs (D)
District 25: None
District 26: Jerry Lewis (R)
District 27: None
District 28: Adam Driggs (R)
District 29: None
District 30: Robert Meza (D)

Arizona House of Representatives:
District 1: Karen Fann (R) and Andy Tobin (R)
District 2: None
District 3: Sally Ann Gonzales (D) Macario Saldate (D)
District 4: None
District 5: Doris Goodale (R)
District 6: Brenda Barton (R)
District 7: None
District 8: Frank Pratt (R), TJ Shope (R)
District 9: Ethan Orr (R), Victoria Steele (D)
District 10: Ted Vogt (R), Bruce Wheeler (D)
District 11: Steve Smith (R)
District 12: None
District 13: Russ Jones (R), Steve Montenegro (R)
District 14: David Gowan (R), David Stevens (R)
District 15: David Burnell Smith (R), Heather Carter (R)
District 16: Jeff Davis (R)
District 17: Tom Forese (R), JD Mesnard (R)
District 18: Jeff Dial (R), Bob Robson (R)
District 19: None
District 20: Paul Boyer (R)
District 21: Rick Gray (R), Debbie Lesko (R)
District 22: Phil Lovas (R)
District 23: John Kavanagh (R), Michele Ugenti (R)
District 24: Lela Alston (D), Chad Campbell (D), Brian Kaufman (R)
District 25: Justin Olson (R), Justin Pierce (R)
District 26: Jason Youn (R)
District 27: Ruben Gallego (D), Catherine Miranda (D)
District 28: Kate Brophy McGee (R), Eric Meyer (D), Amanda Reeve (R)
District 29: None
District 30: Debbie McCune Davis (D), Michael Snitz (D)