Are 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 2004
Be 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.
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>.