Andrew DeVore, a former federal prosecutor who co-founded a regional computer crime unit in New York, said Friday the interpretation raises constitutional issues related to speech and due process — in the latter case, because it doesn’t allow for adequate notice of when using an alias online is criminal.
Because corporations would end up setting criminal standards, a completely legal act at one site could be illegal at another, said DeVore, who has no direct involvement in the case.
Currently, the crime of harassment includes communications meant to frighten or disturb another person. Under this act, communications conducted to knowingly frighten, intimidate, or cause emotional distress to another person are included. Harassment includes communications by any means.
Harassment includes knowingly using unwanted expressions that put the person in reasonable apprehension of offensive physical contact or harm or knowingly making unwanted communications with a person.
A person also commits harassment:
1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or
2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the person’s age.
This law is incredibly dumb, and I hope that the governor is wise enough not to sign this uniformed and very poorly crafted piece of legislation. It is yet another misguided response to the Megan Meier incident. As I discussed in my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007), we must be careful not to adopt responses to problematic online communication that are too authoritarian and too chilling of free speech.
Under this law, a person could be guilty of a crime for recklessly frightening, intimidating or causing emotional distress to a person they know is 17 or younger. That’s incredibly broad — most likely overbroad under the First Amendment. It sweeps in a potentially broad range of protected expression under the First Amendment.
It might also be unconstitutionally vague. A vague law is one that either fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; or authorizes or encourages arbitrary and discriminatory enforcement. This law does both. It is often very difficult to assess how others might interpret one’s words, especially online. The law also encourages arbitrary enforcement, as it cannot possibly be enforced in most instances.
This law is an attempt to update a harassment law. I believe that such harassment laws exist in a number of states. Many of these underlying laws also share some of the problems I’ve discussed.
Consider the following case: Child 1 teases Child 2 by saying that he’s a “nerd.” Child 2 starts to cry. Child 1 repeats the insult. Child 1 has knowingly communicated with Child 2 and without good cause, has recklessly caused that child emotional distress. Yup, let’s charge Child 1 with a crime and all other children of his or her ilk. Let’s have Missouri start building jails, so it can lock up all those children who insult, frighten, or cause emotional distress to each other.
The problem with both the federal prosecution and the Missouri law is the “if it’s bad it must be a crime” mentality. There is a lot of conduct that’s bad — sometimes really bad — but that’s not a crime and that shouldn’t be a crime. Trying to stretch the law to criminalize everything we dislike is not a productive solution. Sadly, it scores political points, which is why a federal prosecutor and the Missouri legislature are acting so irresponsibly.
Hat tip: Media Prof blog
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.