Update: Arizona’s online impersonation legislative proposal never found its way into law books. Free speech concerns killed the bill.

Original Article

Are Arizona legislators plotting to steal candy from babies? (Candy, in this instance, being parody social media accounts; those digital stand-up stages pumping out palliative packets of humor for the people.) If state lawmakers wave through House Bill 2004 — a statute that would make it illegal to impersonate someone on the Internet– the answer could be, “yes.”

Pre-filed in December by state representative Michelle Ugenti, HB 2004 seeks to criminalize the act of creating social media accounts under another person’s name. Brass tacks: a little online clowning could land you in the clink – as in, meet-your-new-cell-mate-Sam-the-Shiv.

Ugenti’s law would require plaintiffs to prove defendants’ “bad faith intent,” yet First Amendment watchdogs are leery of the bill’s arguably vague language and its potentially chilling effect on free expression.

HB 2004 advocates, however, insist the bill is free of Constitutional infringement concerns.

The Basics of Arizona’s Online Impersonation Bill

The Goal Is To Dissuade People From Online Bullying and Harassment

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 issues. Proponents of the bill hope that codifying harsh punishments for Internet impersonation will make people think twice about online bullying, harassment, and fraud.

For plaintiffs to win a case under the proposed law, they must prove their respective defendants intentionally acted without permission, with nefarious goals in mind. 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…”

Similar To Texas’s Online Impersonation Law

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 Arizona’s Online Impersonation Proposal?

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

Publishing social media accounts and webpages using another person’s name would be illegal under Arizona’s online impersonation law. A single page of online forgery, in a sub-sub folder of a 0-ranked website, would still be actionable.

Sending messages through a website or networking platform “other than on or through an electronic mail program or message board,” is also an offense under HB 2004.

What Punishments Are Proposed In AZ’s HR 2004?

Subsections A and B of HB 2004 carry different penalties. 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: Individuals without any priors, who are convicted under Part B of the bill, may be punished with a fine instead of jail time. Remember, though, that egregious acts are almost always punished more harshly.

An exception exists. If defendants are convicted under subsection B, and their offenses involve 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

Protections exist for the following entities in Arizona’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 comment blog is typically not considered a social networking site under U.S. law, but if each user 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 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

“[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 both a “commercial social networking site” and “an interactive computer service.”

Telecommunications Providers

Certified telecommunications utility services, shared tenant services, and non-dominant carriers are all exempt from prosecution under Arizona’s proposed Internet impersonation statute — as are video and cable providers.

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 Impersonation Law

Let’s review a few arguments defendants could use in an HB 2004 lawsuit.

It Wasn’t Me

The obvious defense against HB 2004 would be, “It wasn’t me!” If defendants can definitively prove that they’re not the culprit, they’ll get off. (Conversely, if the material is posted anonymously, plaintiffs could get a court order compelling the ISP to hand over identifying information.)

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 a judge would toss the claim.

I Didn’t Mean To Cause Harm

HB 2004 is clear: A “bad faith” intent must be demonstrated 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. So, in theory, defendants could argue that the material sat 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, it’s public.

I had Permission

Consent is the first parameter in HB 2004. Plaintiffs must prove the defendants acted without permission.

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 A – the one with overt leanings for Political Party A – creates a parody account to lampoon Official B from the other party? Under the proposed law’s current wording Comic A could land in court. 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.”

Yes, it’s crucial to be vigilant about free speech rights; it’s also important 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 has substantial support for her proposal. Advocacy groups commend the bill and believe it will 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.

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 already enacted similar statutes.

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: 13-2012. 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.

Sources:

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>.